Life is full of ironies and politics even more so, and so it is that on the day that one MP resigned his seat in the House of Commons to fight a by-election on the issue of preserving our traditional civil liberties, we also find our two largest political parties engaged in a pissing contest over which of them has the better plan to sacrifice just a little bit more of liberty on the alter of tabloid hysteria.
The story begins, as they always seem to these day, with an exceptional situation.
Earlier this year, a 47 year-old Metropolitan Police Inspector named Gary Weddell shot and killed his mother-in-law and then, after driving to a gun club, turned his shotgun on himself and committed suicide.
What elevated this story above the norm was that at the time of these shootings, Weddell had been released on bail of £200,000 against the wishes of the Crown Prosecution Service and was awaiting trial, accused of the murder of his wife.
Naturally what followed was the usual media circus in which the press universally agreed that the judge who granted Weddell’s bail application had made a grievous error of judgement but that the real problem here lay in the mere fact that he was even required to entertain an application for bail at all, what with murder being such a heinous crime. And inevitably, when the press undergoes a Bagpuss-like awakening on a law and order issue and makes its usual demands that something must be done, the politicians on the mouse organ also wake-up, order a review and make all the usual noises about tightening the law to ensure that something like this can never happen again.
Because who in their right mind would ever reasonably consider granting bail to someone charged with murder?
Except that its not quite that simple.
The general right to bail afforded to those charged with a criminal offence, of any kind, is inextricably linked to one of the founding principles of the criminal justice system – the presumption of innocence – and this takes us right to very heart of what little remains in force of Magna Carta:
XXIX. NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.
That clause, one of only three that remains in full effect in English law, is the fundamental constitutional basis for the presumption of innocence, trial by jury, habeas corpus and the general right to bail.
This is, no more and no less, where liberty begins, with the most basic of freedoms, freedom from arbitrary detention by the state without due process of law. It is the principle on which David Davis, by his stated intentions, will campaign to protect in the upcoming Haltemprice and Howden by-election.
The right to bail is, albeit a touch obliquely, an expression of this principle.
Regardless of any charge an individual may face it is presumed that they are innocent until proven otherwise and may not, therefore, be unduly or arbitrarily deprived of liberty unless it can be shown that there good cause to do otherwise. In practice, ‘good cause’ means that if, after taking a range of factors and considerations in account, a judge decides that the individual as charged is likely to present a risk to the public at large, re-offend while on bail, attempt to interfere with the process of justice in order prevent their being convicted at trial or is likely to abscond in an effort to escape justice, then they may be denied bail either explicitly, i.e. no bail is offered, or implicitly, i.e. by setting the value of the monetary bond against which the individual’s liberty is secured at a level far beyond their means.
What happened, in the case of Gary Weddell, is that although a very close call, evidence submitted to the court of Weddell’s previous good character and, one would expect, his position as a senior police officer, together with a psychological report succeeded in convincing the judge that, as serious as the offence he was charged with may have been, there was insufficient evidence that he would present a risk to public safety, etc. to justify an outright denial of his application for bail although the severity of the offence for which he was charged was clearly reflected in the size of the bond that had be furnished by his brother, a barrister, in order to secure his release.
It was a judgement call that, on this occasion, turned out both to have been the wrong call to have had the most serious of consequences, nevertheless on that it right that a judge should make on due consideration of the evidence before them and with due and careful regard to the critical importance of the presumption of innocence.
That, on rare occasions such as this, a judge makes the call and grants bail only to discover, after the fact, that this turned out to be the wrong call is certainly regrettable, not to mention good cause for the judge to review the case in his own mind and consider carefully what, if anything, may have most influenced them to give a particular offender the benefit of the doubt when considering their application for bail. Self-examination of one’s own motives and preconceptions is likely, after all, to make you a better judge in the long-run as experience can be a great teacher, but it not sufficient cause to seek to overturn or modify a key legal principle in a manner that will only serve to diminish the liberties afforded to all.
Of course that’s not necessarily how politicians see it – not when the Daily Mail and The Sun are baying for blood and so what we end up with is both main parties eagerly vying for the approval of Paul Dacre and Rebekah Wade in a contest in which the Tories currently look set to come top.
Thus far Labour has stopped short of proposing that bail should be arbitrarily denied to murder suspects by announcing a review of the bail laws that will consider whether there should be an presumption against granting bail to murder suspects other than in ‘exceptional circumstance’ – quite what those exceptional circumstances might be is entirely open to question but own would assume that having reversed the presumption it would then fall to the suspect to prove to the court that they are not a risk to the public and that they won’t re-offend, seek to interfere with the course of justice or abscond under the terms of a specific legal test, which will most likely be the ‘balance of probability’ unless the Daily Mail gets particularly shrill and pushes for ‘beyond reasonable doubt’.
So there’s maybe a fighting chance there as long as you’re content to accept being marooned on a small, uninhabited island in the Hebrides as a condition of bail.
As for the Tories they appear to think that they’ve found a loophole in the Human Rights Act that will allow them to order judges not to grant bail to murder suspects, i.e. full-on arbitrary detention, following a review that…
“looked at whether ministers should make “public safety an explicit component of bail decisions” as well as “removing the right to or reversing the presumption of bail for certain very serious offences”.
From which the usual unnamed source has told the Telegraph that…
“The review finds that there can be an automatic presumption that in all but the most exceptional cases you should not be able to given bail.”
You’d think that, by now, politicians might have got the message that automatic presumptions are a bad idea and no more than the kind of thing that results in the Home Office’s lawyers having their own designated parking space at the Old Bailey, but no, this simple message that the courts have been trying to drum into politicians for at least the last 20 years, well before HRA passed into UK law, still hasn’t sunk in.
In almost every material respect this is a more serious assault on civil liberties than even the government’s plan to extend the maximum period of detention without charge in what parliament must agree are exceptional circumstances to forty-two days.
A presumption against granting bail, particularly one that operate arbitrarily based solely on the offence for which an individual has been charges amounts to nothing more than a presumption of guilt which can only be lifted by an aquittal at trial, a process that will in almost all cases, take considerably longer than forty-two days. Moreover, such a presumption, if applied arbitrarily as the Conservative suggest, explicitly disengages habeas corpus in murder cases by denying the court the one option of redress it has open to it in advance of the case going to trial, that of granting the suspect bail on such conditions as its deems necessary or expedient to satisfy the requirement that it give due regard both to public safety and to the integrity of the judicial process.
In short, this is an abomination against which the welter of bureaucratic checks and balances that the government have been compelled to introduce in order to persuade parliament to support its proposals for pre-charge detention look like a paragon of liberal virtue.
If the last ten or more should have taught us anything it is that the very worst assaults on our civil liberties all follow the same, utterly predictable pattern, one that begins with an exceptional event and which then rapidly gathers momentum on a tide of media outrage and hysteria, one that prompting politicians to promise a swift review and new legislation to ‘tighten’ the existing laws in order to put the rights of the victim ahead of those of the criminal – and never mind that here we are only dealing with the accused who our system of justice still considered to be innocent until proven otherwise – and ensure that whatever kicked off the panic in the first place can never happen again.
Whenever that happens, and especially when it happens in such a way that both current and aspirant governments are carried along in its wake, then the inevitable outcome will be the loss or diminution of yet more of our hard-won, and often, most fundamental liberties.
But the sickest joke of all here is that, if challenged on these proposals, the one that we can be sure of, thanks to the pervasive aura of doublethink that runs through both parties when addressing issues of law, order and justice, is that both Jack Straw and Nick Herbert will tell us, hand on heart, that they’re only doing this to preserve out freedoms and liberties.
On days like these, one’s regard for the simple solutions followed by the Italian people in the wake of the fall of Mussolini cannot help but grow.
It’s wrong, I know, but when faced with sophistry and political deceit of this kind, maybe there is something to be said for the old virtues of a lamp-post and a good strong length of rope.