michaelmansfieldqc

Essays & articles

CONFRONTING MELTDOWN by MICHAEL MANSFIELD QC

This year has witnessed an unprecedented convergence of forces causing serious meltdown in different fundamental areas which underpin our daily lives.

These forces are not unrelated, coincidental nor accidental. They derive in large measure from a common theme over which we should have control. Now is the moment for reappraisal and reassertion of choice before it is irreversible.

Economically, there has been a decade or more of an unregulated market creating a shadow economy built on unsustainable debt and pursuit of profit. This brought major world economies to the brink of disaster such that the financiers were hanging on the word of a credit rating agency in the USA. The day of reckoning has not been averted but merely deferred.

Politically, there has been an awakening. People long oppressed have taken en masse to the streets in North Africa and the Middle East. In the UK the expenses scandal followed by the phone hacking disgrace has begun the process of unravelling and unmasking an unhealthy and feral collusion between various core elements of our democracy.

Socially, there has been an explosion of wanton destruction and theft aimed primarily at the retail outlets of a society which has been dominated by a bonus culture, sorely lacking in moral and visionary leadership.

Environmentally, in the wake of earthquakes, tsunamis and a literal nuclear meltdown in Japan, estimates were released by the International Energy Agency at the end of May, suggesting that GHG (greenhouse gas emissions) for 2010 increased by a record amount and jeopardised hopes of containing global warming within safe levels.

In all these instances, two of the major contributing factors have been unmitigated profit on the one hand and the absence of effective regulation and accountability on the other.

The constraints of space do not permit a review of each of these areas. In my view the last is the most important because it involves the drive for energy resources, the everlasting emphasis upon ‘growth and consumption’ and necessarily the future of the planet. ‘Meltdown’ provides a timely trigger for second thoughts. What are the real priorities and what is the responsible direction for policy development?

Firstly, a question which no Government seems willing to address – how much energy should we be consuming? At the root of this is population growth, people’s expectations and industrial exploitation. Such pressures have to be confronted and managed. Resources are not infinite. Every one of us at home, at work and at leisure needs to re-examine whether our levels of energy consumption are absolutely necessary.

Secondly, the question which is currently far more prevalent – how do we satisfy this demand? The answers to this have a strong bearing on the first question, because the traditional sources of energy are posing major environmental threats.

After Fukushima, the tide of opposition to nuclear based power has gathered considerable momentum. Germany announced the closure of 7 plants; Switzerland declared that it would not replace its 5 plants (40% of power supply); the Italian public wholeheartedly rejected Berlusconi’s proposals for a return to nuclear power (90% against in the spring referendum). Fragile fresh water resources in many areas make reactor cooling a real problem (sea water corrodes).

Fossil fuel use presents an even bigger environmental debacle. Massive destruction has enveloped Tar Sands in Alberta, Canada. This is the largest crude oil project of its kind in the world and has critical ramifications for everyone. It will place Canada alongside Saudi Arabia as the premier oil nation. But as a Canadian government report has just revealed, Tar Sands will single handedly undo the GHG gains in reduction levels. Besides CO2 emissions, however, the livelihoods of the indigenous peoples have been ravaged; animal habitats destroyed; thousands of square miles of boreal forest razed to the ground; ground water and rivers depleted and polluted and huge lakes of toxic waste water created (tailings). Meanwhile the Canadian Government ploughs on regardless and campaigns ferociously in Europe to stop the EU Fuel Directive which could curb the import of this dirty oil. The UK and Holland have been more than receptive to their overtures. But then Shell and BP are deeply involved in exploitation as are British banks like RBS.

In this context it is somewhat disturbing to discover another development in our own back yard – fracking. This is an initiative to exploit shale gas trapped under large areas of the UK (estimated at 150 billion cubic metres by the British Geological Survey). The process involves injecting a cocktail of toxic constituents at high pressure in order to flush out the gas trapped in the shale. The potential repercussions for our environment are enormous.

Earlier this year when the French public, particularly in the Languedoc-Roussillon region accustomed to ‘resistance’, realised that the Sarkozy Government had granted innumerable permits for a similar exercise, their vocal and widespread opposition brought about an immediate moratorium. Central to this movement was the well publicised and highly influential film ‘Gasland’. It graphically chronicles the deleterious effects of the thousands of wells drilled in the USA, particularly in Pennsylvania. Once again water resources and health have been damaged. In one memorable scene a householder turns on his tap to find water contaminated by methane, which he sets fire to with a match! In June the New York Attorney General filed a law suit seeking a proper environmental review and assessment of risk before any more fracking is entertained.

The company at the forefront of this activity in the country is Cuadrilla Resources. Although based in the UK and registered with headquarters in Lichfield, it is fundamentally a US private equity backed firm with an American CEO, Mark Miller, who has experience of the industry in Pennsylvania. He has been vociferous in defence of their exploration, insisting that it is being done ‘by the book’. In January he resisted calls for a moratorium. The Guardian newspaper revealed (1 March 2011) that under the terms of its licence granted in 2007, Cuadrilla does not have to disclose how much gas it hopes to produce until 2015.

It received approvals and permissions to explore for natural gas at five onshore locations in Lancashire, and began drilling at the first one in August 2010 – Preece Hall 1 approximately five miles east of Blackpool.

At the beginning of April a minor earthquake or tremor (2.2) was recorded in the Blackpool area and reportedly toppled traffic lights and caused cracking in a railway bridge. A month or so later another tremor (1.5) was recorded.

In between these two occurrences the House of Commons Energy and Climate Change Committee on the 23 May essentially gave clearance to gas shale hydraulic fracking. Its chair, Tim Yeo, declared that there was no threat to the integrity of water supplies and nothing inherently dangerous in the process.

Drilling has now been halted for an independent seismic review by the British Geological Survey and Keele University. If the risk of these events were so obvious and predictable as the experts appear to be saying, it is a little unfortunate that this was not broadcast in advance. The point is that any interference with the substratum is likely to have some repercussions, as Professor Peter Styles, (Applied and Environmental Geophysics, Keele) observes in relation to the coal mining industry and old workings. The mechanics of tremors and whether they matter are being addressed by the group which hopes to report in early September. All of this should have been properly exposed and canvassed prior to the granting of authorisations.

These reservations cannot be written off as wild imaginings or rants. What is required is an independent overview. Tremors however minor are not the only concern. The use of large quantities of fresh water, the much higher GHG emissions than many low carbon technologies and the ever present threat from leakages of methane from wells and pipelines, give rise to a choice the public must be fully informed about before the door is opened any further to commercial interests.

Lest States should prove to be reluctant or recalcitrant, there is a strong body of opinion that is approaching the UN to recognise a fifth international crime alongside genocide – ecocide. The concept goes on trial in the Supreme Court on Friday 30 September. It is open to the public and the Government sitting across Parliament Square should take notice.

Michael Mansfield’s Memoirs of a Radical Lawyer is published by Bloomsbury

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RETRIBUTION IS NO SOLUTION by MICHAEL MANSFIELD QC

The predictable but dismal sentencing picture revealed by the Guardian demonstrates that the system has learnt little or no lessons from the past. Twenty-five per cent higher prison sentences than normal and seventy per cent remanded in custody. Precisely this response was employed during the social, political and industrial disturbances of the 70s and the 80s right up to the demonstrations over the last decade. The perpetrators rarely have in mind the sentencing guidelines let alone what courts will actually do. Our prison population is already amongst the highest in the world and runs the risk of perpetuating a criminal culture. Retributive justice should be sparingly employed.

An element of the wanton destruction emanates from the uncaring attitudes of a younger generation which feels and is excluded from the so called Big Society. I am not talking about the habitual criminals who take advantage of these situations for their own ends. The automatic punishment of prison for the former group, therefore, is somewhat self defeating and pointless. It merely exacerbates the exclusion that already exists.

In the 21st century it might be expected that a more developed and apposite approach has been thought through. Here is the most significant opportunity for the community service option to provide the main component in sentencing.

The perpetrators should be placed back on the streets, in their communities immediately. Clean up, build up and face up. Every day for a year. Most of all they should have to confront the damage, both physical and psychological, to which they have contributed. They would have to address the pain and the anger which will not be readily forgotten let alone forgiven. The whole experience might just reignite the humanity and care which has been so sorely battered by the ravages of an unregulated shadow economy. They might even learn a skill or trade on the way. One in five young people are unemployed (one in two of which are black).What is certain is that locking them away will not improve any of this.

At the same time it might help if the irresponsibility of those in authority over the last decade or so is seen to be made accountable for the evolution of what has been described as a ‘feral society ‘. Mutual respect needs to be placed fairly and squarely back centre stage.

HEAR NO EVIL SEE NO EVIL……! by Michael Mansfield QC

The most shocking revelation to rise rapidly to the surface in the Culture, Media and Sports Select Committee hearings this afternoon with the two Murdochs is the extent to which Rupert purportedly knew nothing. Either he was not told or he chose not to enquire. Neither response is remotely satisfactory from a person who has to demonstrate he is a fit and proper person to be in charge of large multinational news corporations. The fact that the News of the World enterprise only comprises one per cent of his so called empire, as he emphasised, is irrelevant and demonstrates the dismissive arrogance that has corrupted crucial areas of our political and journalistic system.

Tom Watson asked a series of focused and penetrating questions about which Rupert Murdoch appeared bemused and ignorant. Repeatedly he turned to his son for help. This was a poor repetition of exactly what happened in 2009 when his executives were before the same committee. Then they knew nothing, could remember nothing and did not know anyone else who knew or could remember anything. The committee then concluded that that the hacking allegations could not possibly be confined to one or two rogue reporters.

It would have been even more devastating if father and son had been questioned separately as was the procedure for senior police officers. James was continually allowed to step in to attempt a rescue or damage limitation exercise. He was clearly anxious to resurrect the prepared script he not been allowed to read at the commencement of the afternoon.

The warning signs of wrongdoing had been clearly sign posted over the years but Rupert Murdoch claimed to have been astonishingly unaware at the time. These particularly revolved around Rebecca Brooks’s public admission about payments to the police in 2003 and the investigation that led to the convictions of News of the World (NoW) journalists in 2007. Leaving aside the 11,000 pages of documents lying within the News Corps premises, how can it possibly be that no one within the organisation commenced a proper and thorough investigation? Given its widespread nature it could not have been missed.

The core issues which had not been canvassed up to about 4 pm today relate to the underlying and systemic culture of journalistic investigation. Everyone has known for years that undercover methods must have been employed to acquire some of the salacious stories put out under the guise of news. What codes of conduct were in place? What ethical principles were enshrined in protocols and guidelines? Where are they? Scant reference was made to these in evidence. Who ensured their implementation? Who took responsibility for oversight? Who monitored and who authorised any particular form of activity? What records were kept and where are they now? Was there any reporting requirement to the chief executive? Were there any spot checks? I suspect a rather large hole underlies all this.

James Murdoch described the recent establishment of a Management and Standards Committee with an independent element. This begs the question as to what existed before. This is a rather late closing of the stable door. I can’t believe it has taken them over 150 years to work this one out! Rupert Murdoch’s humility in the face of all this was as thin as the paper he used for the NoW.

STATEMENT FOR ELECTION AS CHANCELLOR OF THE UNIVERSITY OF CAMBRIDGE 2011 by Michael Mansfield QC

I am very honoured to have been nominated to stand for the post of Chancellor of the University of Cambridge. It is rare for this post to fall vacant – the present incumbent has held it for 35 years – and elections are even rarer. It is important, therefore, that this opportunity to vote is not missed, because whatever the result it will set the seal on how you wish Cambridge to be viewed both nationally and internationally over the next decade or more.

I have spent 42 years as a barrister specialising in cases which involve human and civil rights. The right to a fair opportunity to access education at all levels is enshrined in the normative instruments of the United Nations and UNESCO. This is because it is recognised to be essential for the exercise of all other human rights, and the empowerment of the individual.

It is salutary to bear in mind the words of the covenant to which the UK is a party, adopted by the UN General Assembly in 1966, and which forms a trilogy of human rights with the Universal Declaration at the centre.

Article 13 of the International Covenant on Economic Social and Cultural Rights is unequivocal:

(1) the states parties to the present covenant recognise the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity….

(2) (c) higher education SHALL be made equally accessible to all on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of FREE EDUCATION.

This is highly relevant to the election in October. It comes at a critical moment in the University’s illustrious 800 year history. An unprecedented threat is posed to its integrity. What is at stake are the fundamental principles of ‘ independence’ and ‘diversity’: the independence to take unfettered decisions about the provision of high quality education across a broad spectrum of subjects for a diverse population of students.

The threat comes in different forms, but the main ones are derived from the forces of the ‘market place’ described by the Government as the need to introduce ‘ the cut and thrust of competition’. This is closely allied to the Government’s policy based on its perception of economic exigency, namely swingeing cuts.

The effects are twofold, both of which are disastrous. The first is massive reductions in funding, up to 80% in some cases. Universities have been driven to raise money in other ways, most obviously through an increase in tuition fees. A cap of £9000 was announced by David Cameron as an exceptional measure. We now know, less than one year later, from a report by the Office of Fair Access that it is the rule rather than the exception. One third of all Universities are charging the maximum and three fifths are charging the maximum for some courses.

The ramifications are iniquitous, especially when you consider the rapid transition from free higher education to tuition fees with interest free loans, and now loans plus interest combined with the plaintive cry of ‘free at the point of delivery’.

Who on earth is contemplated here? What students or families are in a position to afford such amounts either in the short or in the long term? The median income in the UK is around the £21/22000 mark, at least for those lucky enough to be in work. The economic prognosis is not exactly rosy so it is highly likely that potential students from the average family will be unable and unwilling to entertain the thought of incurring the lodestone of long running debt.

The second effect is the growing privatisation of management and course providers. What is taught will increasingly depend on what is regarded as profitable. This also runs the risk that the provider may, wittingly or unwittingly, influence the nature of the subject matter within the course.

At the same time and quite incongruously with these economic imperatives the Government is attempting to impose a liberalised admissions policy which is unattainable under the circumstances.

Cambridge should be in the vanguard of resistance to these confused policies which trample all over an important heritage and resource, and treat education as some kind of commodity. If there is to be any prospect of national recovery, investment in education has to be the bedrock not the victim.

Throughout my career I have been confronting similar situations. At the University I attended, (Keele) founded by A D Lindsay from Balliol, the Robbins Committee slashed a fine liberal degree course in the interests of savings. I have also been closely involved with two London Comprehensives in their battles for survival. Lately I have been intimately concerned with challenging the public spending cuts of 40% to civil legal aid.

Generally we are being hoodwinked into believing there are no alternatives to the austerity package put forward by the Government. The shadow economy was not created by the Universities or the public sector. The sector that was responsible and which has emerged largely unscathed must be made to face the consequences. There is a tranche of measures which would raise billions towards the debt crisis – for example a financial transactions tax on speculative deals, the recovery of tax being avoided or evaded, the termination of an outdated trident missile system estimated to cost £30 billion and so on…

The mantle of the Chancellor must retain the dignity and traditions so long associated with the University but also reach out to embrace the sacred principles of independence and diversity which are in serious jeopardy from the craven demands of the market place. It would be my intention to maintain a robust defence of the University against these incursions.

DEFEND THE RIGHT TO PROTEST by Michael Mansfield QC

The uprisings throughout North Africa and the Middle East this year have highlighted once again the power and importance of people being able to voice dissent en masse in public. Whenever this happens, as it has on many occasions before, it reminds us of the absolute need to ensure the survival of this fundamental freedom.

In Europe the most graphic and dramatic expression of this need came with the events which stretched from the Solidarity movement in Poland to Civic Forum and the Velvet Revolution in Czechoslovakia, bringing down en route the despised Berlin Wall.

The United Kingdom has always been in the van guard of those anxious to condemn the denial of this right, but its own record is hardly glorious. Over the last 40 years there has been a relentless erosion of civil rights, especially the right to peaceful protest. This has been achieved by an incremental and imperceptible combination of forces – statutory limitations, aggressive policing, extensive methods of surveillance, and finally by the activities of infiltrators and under-cover agents. The statutory limitations have empowered police to determine when, where and how demonstrations can take place. Public order policing has commonly based itself on the T.S.G./I.R.U. riot squad model, which has been deployed from the early anti-fascist marches and the death of Blair Peach, through the violence meted out to miners at Orgreave like Russell Broomhead to the death of Ian Tomlinson who was not even part of the G20 protest.

Throughout this period various forms of unlawful corralling, kettling or containment of totally peaceful protestors have been used, as have roadblocks to prevent freedom of movement. Entirely legitimate groups have also been subjected to surveillance by all manner of devices which have now become routine.

The mind-set which has underpinned this panoply of power is the basic belief by the authorities that protestors are criminals. There has been a long-standing inability and unwillingness to distinguish and disentangle criminal investigation from the civic obligation to protect freedom of expression and association.

Permitting Liberty a presence at New Scotland Yard during the recent TUC march and rally is an interesting development, as was an attempt to collaborate with Climate Camp organisers in Blackheath in the summer of 2009.

On neither occasion however, did it prevent a very heavy handed approach to Uncut demonstrators nor to a group of Climate Camp supporters at their overnight accommodation.

Bearing all this in mind, it is essential for there to be a campaigning and monitoring group on the ground to provide a much needed network of support and solidarity at every major protest, whether it be march, rally, picket, boycott, encampment or just pamphleteering.

DEAD OR ALIVE by Michael Mansfield QC

George W Bush’s remark about the Wild West is a timely reminder that many people have not moved on from the concepts of “Frontier Justice”. The events of this week provide an important opportunity for re-examining the role and respect to be accorded to the rule of law and the principles of international justice. If they are to mean anything when applied to other people, everyone needs to know the basis upon which the operation was launched which led to the killing of Osama Bin Laden. There is a growing and conscientious feeling of “discomfort” which can only be allayed by a thorough and transparent revelation about the objectives and actions taken. Unless this happens quickly the powerful forces that work in our world whether nation states or otherwise will interpret this as a licence to take the law into their own hands, circumvent international norms and convert “might” into right.

President Barack Obama, made a measured and carefully drafted announcement at the beginning of this week. The terms he used are specific. He began his speech with the inevitable reference to 9/11 and stated “we were united in our resolve to protect our nation and to bring those who committed this vicious attack to justice”; he then moved on to deal with the development of intelligence, and a lead that arose last August in relation to the location of Bin Laden. “And finally, last week, I determined that we had enough intelligence to take action and authorised an operation to get Osama Bin Laden and bring him to justice.”

It is noticeable here that there was nothing about an operation in self-defence against a commander in the field during armed conflict; nor was there any hint of an operation conceived in vengeance and in order to avenge the multitude of deaths in cities around the world. It was an entirely proper and judicious expedition against a man who was undoubtedly responsible for massive and persistent crimes against humanity.

Since Obama spoke these words however, there have been a number of different interpretations and discrepancies that have unfolded over the subsequent days. Many of the observations have come from American observers and commentators. For example, Michael Scheuer (CIA) told the BBC World Service that “this operation was not a capture operation it was meant to kill him.” Daniel J. Coleman, who in 1996 was the first FBI Agent detailed to the CIA in the investigation of Bin Laden told the New York Times (May 5th) that in relation to the deadly attack on the destroyer USS Cole in 2000 “that the deaths of those young men and women were never avenged”. What therefore needs to be ascertained are the rules of engagement and briefing given to the taskforce because if its real objective was not to bring Bin Laden to justice but to kill him this begins to have the appearance of an extra-judicial killing or assassination.

The President had little more to say about the operation itself other than “after a fire-fight, they killed Osama Bin Laden and took custody of his body.” For most listeners this gives a clear impression that the Navy Seals were caught up in an exchange of fire with an armed man or men wherein Bin Laden was killed as a matter of necessary self-defence. This description however is deficient in two important respects, there was no exchange of fire and Bin Laden was not armed. How these errors could have arisen is perplexing because the President, Hilary Clinton, and many other American officials were, unusually, watching the incident contemporaneously on a live feed through to the Situation Room in the White House. Whilst it is entirely understandable that there should be a reluctance to publish any images at the present time the availability of film and photographic evidence must be preserved for the benefit of an independent judicial examination. There are of course a number of other discrepancies concerning the actions of his wife which also need to be considered.

Self-defence is a long-standing and well recognised principle of domestic and international law. Whilst the United Nations has a monopoly on the use of force internationally, Article 51 of the UN Charter makes an exception to this in its preservation of the right of self-defence if an armed attack occurs against a member of the United Nations. Article 31 (1)c of the Rome Statute which establishes the International Criminal Court in The Hague also excludes criminal responsibility for an accused whose actions might otherwise constitute a crime in order to defend himself or another. Article 2 (2) of the European Convention of Human Rights contains similar provisions with a proviso that no more force than “is absolutely necessary” is used. Underpinning this body of law is a consistent prerequisite that the force of the attack or threatened attack to be resisted is imminent. Hence the need and significance of the “dodgy dossier” and the” 45 minute” warning in the case of the Iraq War it is far from clear that these pre-conditions have been satisfied in this case. Normally one might expect the UN or its Security Council or its Secretary General to have raised these matters, but the nature of the euphoric and unquestioning speeches in the Council suggest once more that an independent judicial body should be appointed to investigate these issues. Without it public confidence in the point and utility of international law will be severely undermined.

There are some who argue that Bin Laden was above and beyond the law and that his case was not susceptible to the complexities and dangers of bringing him to justice in The Hague or even for that matter in the United States. It is worth remembering that a case had begun in the Federal District Court in Manhattan on June 10th 1998 against Bin Laden and has been on-going and substantially amplified since then. According to the New York Times (May 5th) the original indictment was kept secret at first coming at a time when the CIA was considering a plan to capture Bin Laden and turn him over for trial either in the United States or in an Arab country (9/11 Commission Report). In any event the whole thrust of international treaties and conventions has been towards ensuring “due process” on the basis that no-one can be considered to be above the law. Hence there have been a string of international tribunals dealing with equally heinous crimes committed by equally vicious perpetrators stretching from Nuremburg, Tokyo to the ICTY (Yugoslavia) and Cambodia (Pol Pot). It is of interest to note that the USA has steadfastly refused to sign up to the ICC for fear no doubt of the risks that they themselves might end up in the dock. Nevertheless there have already been as can be seen significant and successful prosecutions in the universal endeavour to bring about accountability and fair trial. We should not allow truth and justice to become victims to the law of retribution along with other innocent victims of terror.

STILL WAITING FOR A GREEN QUEEN by MICHAEL MANSFIELD QC

In 1876 and 1899 Queen Victoria signed two treaties with various First Nations in Canada. It was a fundamental bargain and promise between the Crown and the indigenous peoples. In exchange for large swathes of land they would have their rights to hunt, trap and fish preserved. The one in 1876 (Treaty 6) concerned 309,760 sq km in Alberta and Saskatchewan occupied mainly by Plain and Wood Cree. The one in 1899 (Treaty 8) related to 840,000 sq km in northern Alberta, north eastern British Columbia and north western Saskatchewan occupied by a number of First Nations including Cree and Chipewyan. Altogether some 40 groupings were involved.

A report of Treaty commissioners on the 22 September 1899 was studiously clear and unequivocal in its assurances that the treaties would not lead to ‘any forced interference with their (First Nations) mode of life.’ Such sentiments were further recognised and reaffirmed by the Canadian Constitution Act 1982. This particularly had in mind the risk of rendering these rights meaningless by dramatic alterations in territory and resources.

This is exactly what has come about by the voracious activities of massive multi-national oil companies, backed by international financial institutions and banks. British interests are well represented. The most visible example is the Tar Sands project in Alberta. It is the largest energy enterprise of its kind in the world and is predicted to put Canada in the top two oil producing nations alongside Saudi-Arabia. For this to succeed as a profitable exercise, the scale has to be massive, presently estimated at 1 million barrels per day.

The oil is trapped in a mix of bitumen clay sand and water, and the process of extraction, upgrading and refining uses huge amounts of water – 4 to every barrel of oil. The toxic waste water is dumped in tailings or dead lakes covering thousands of kms. The ‘dirty oil’ has then to be transported by pipeline, or by road based tankers.

This is a carbon intensive industry and the repercussions for the First Nations as well as the rest of the world hardly need to be spelt out. It is already an environmental disaster. Local water resources are contaminated and depleted. Air is polluted. Land and boreal forest are decimated. All forms of wildlife are threatened, and the health and welfare of communities subverted. A visitor might be forgiven for believing some kind of nuclear holocaust had occurred creating a desolate moonscape in which the only movement is the gentle flapping of yellow jackets on wooden scarecrows placed by the oilers to ward off any hapless birds. Globally even the oil companies accept that CO2 emissions will increase, the debate is about how much. In any event the Harper led Canadian government has no intention of meeting internationally agreed carbon reduction targets.

What is difficult to gainsay is the forced interference with the way of life of whole indigenous communities. The British monarchy bears a responsibility for this given the treaties, and the special relationship with the First Nations. This was especially recognised by Lord Denning, Master of the Rolls in 1982, as a direct relationship between the Sovereign and the First Nations (Regina v Sec of State ex parte Indian Assn of Alberta – Judicial Committee of the Privy Council). Both Prince Charles and Prince William have expressed genuine concerns about environmental and conservational issues. The Canadian press has carried numerous photographs of Kate planting a commemorative tree. Where, however, is there any consideration being given to the plight of native peoples and the broader repercussions? Has any member of Queen Victoria’s descendants on the numerous visits to Canada actually visited Tar Sands? Cared to make any observations about the situation, or responded to entreaties by representatives of the First Nations? There are annual Pow-Wows happening all over Canada in June and July and therefore this provides an ideal opportunity for, at the very least, a gesture of support by the visiting Royals for the spirit of the original bargain.

Michael Mansfield’s Memoirs of a Radical Lawyer is published by Bloomsbury

CONTROL ORDERS – the thin end of the legal wedge by MICHAEL MANSFIELD QC

The work of Franz Kafka commonly conjures up spectres of an anonymous, omnipresent and overweening state, one in which the citizen has no identity, no rights, no civil existence. Trapped in a labyrinth of endless bureaucracy, there is no escape; akin to the plight of the hero in the early television cult fiction ‘The Prisoner’. Interestingly Kafka trained as a lawyer.
The predicament mapped out so graphically in his posthumously published novel ‘The Trial’ is one which will be readily recognised by some of those who have been recently incarcerated in the UK. They are most notably, foreign nationals who have been consigned to Belmarsh prison, and latterly those who have been placed on control orders; in both cases because they have been perceived as threats to national security. Essentially, control orders constitute a form of imprisonment without bars. From beginning to end this situation has been a flagrant violation of basic principles.
It was the events of 9/11, more than any other, that changed not only the physical and psychological landscape, but raised the temperature of debate enabling the ready passage of draconian anti-terror measures. There is nothing new in this type of escalation. The first Prevention of Terrorism statute was a response to the activities of Northern Irish paramilitaries. It was supposed to be temporary but soon became permanent despite being ineffective window dressing. Another instrument of oppression resorted to at much the same time was internment. It too, was not only ineffective but was positively counter- productive. Mildly surprising therefore that the authorities should revive these concepts for those it claimed it could not put on trial nor deport. The iniquity is obvious – no ‘due process’ pursuant to the rule of law and indefinite detention in close confinement.
The situation for the Belmarsh detainees was particularly harsh. They were not charged with any offence, they were not told the details of why they were being held, nor were they given any idea about their release. The appeal process to SIAC was more like ‘Alice in Wonderland’ where the detainee was not present and was represented by special counsel who could not even speak to him. This nightmarish isolation was finally recognised by the House of Lords in December 2004. In conspicuously trenchant and strident speeches, comparisons were drawn with oppressive regimes usually associated with Napoleon, Stalin and Hitler. The Blair Government maintained an arrogant defiance and criticised the judiciary for political interference. Strange, since they were the ones who had incorporated the ECHR into domestic law via the Human Rights Act 2000.
Reluctantly an alternative had to be found. The Control Order regime was devised. It merely reproduced all the shortcomings of the previous process, only without the bars.
Presently the regime is governed by the Prevention of Terrorism Act 2005 and the Counter Terrorism Act 2008. There are two types of order -one that derogates from the ECHR and one that does not. Fundamental to both is a decision by the Executive, the Home Secretary, based on a belief about the alleged threat posed, with no requirement to reveal the underlying information. As a result tight restrictions can be imposed on residence, movement, association and communication. It is tantamount to house arrest without charge over long periods of time.
The House of Lords, now the Supreme Court, has grappled with these provisions in order to infuse what is a fundamentally flawed scheme with a semblance of fairness. They have done this by limiting the nature and duration of the restrictions; by identifying what is capable of constituting reliable information; by requiring greater disclosure and by employing a somewhat scholastic distinction between imprisonment (Belmarsh) and restrictions on liberty (Control Orders).
None of this, however, detracts from the basic injustice, which is highlighted by a number of cases of detainees previously acquitted of serious terrorist charges. Despite a criminal trial where a jury has scrutinised the evidence and found a defendant not guilty, that person has been re-detained on precisely the same material. Such an outcome has been endorsed by the decision in ‘Y’ (2010) ACD 89. It’s like saying he is not quite a terrorist so we will curtail his freedom anyway!
The Coalition Government instituted a review of this legislation as part of its much vaunted Civil Rights Agenda intended to roll back the intrusive nature of government. In the event it has been subverted by the security mantra peddled by the services that trade in such matters. In spite of objections by the reviewer himself, the ex-DPP Ken MacDonald, Theresa May’s announcement in January was more of the same under another name – a cosy acronym – ‘T-Pims’ (Terrorism Prevention and Investigation Measures. As Liberty pointed out, it is merely a rebrand. For example, instead of curfews of 16 hours there will be overnight residential requirements of eight instead; there will be a two year maximum time limit but it looks as though this could be renewed and still all will depend on the Home Secretary’s belief.
Either there is reliable material/evidence or there isn’t. If there is, then subject it to due process, charge and trial. If not, there is an end of it. There can be no halfway house. We must not and never should be in the business of preventative detention, whereby someone is removed from circulation at the behest of an anonymous agent based on unverifiable information emanating from dubious political regimes.

Michael Mansfield QC’s Memoirs of a Radical Lawyer is published by Bloomsbury.

UNETHICAL POLICING ON TRIAL by MICHAEL MANSFIELD QC

‘Presumed Guilty’ was the title of a book I wrote about the criminal justice system published in 1993. Its theme was the extent to which the system was subverted by an attitude of mind governed by traditional presumptions. At the time of writing I was not to know that the mindset I was trying to expose would be revealed in even more detail by the murder of Stephen Lawrence and the subsequent public inquiry chaired by Sir William Macpherson.

Essentially the errors and failures in professional standards start at the top. A culture is condoned, a blind eye is turned, a misdemeanour is overlooked or goes unpunished. Most significantly an ethos is fostered in which the law and its processes are blamed for a plethora of shortcomings – conviction rates, crime rates etc. Due process is regarded as a hindrance or a labyrinthine game played by tricksy lawyers.

This explains why over the years there has been a significant lobby among senior police officers to bring pressure to bear on the politicians of the day to make substantial legislative changes – trial without jury; the abolition of the right to silence; a reversal of the burden of proof; lowering the standard of proof; increased detention without trial and public order arrest without reasonable cause. These are but a few examples.

Such overtures send out a very clear message to all ranks: ‘We can’t convict the people we want to, the ones we believe to be guilty, unless we can have a more efficient, less regulated, quicker form of virtual summary justice’. This was precisely the conscious and unconscious thinking which permeated many of the miscarriages of justice cases with which I am familiar. Having got our man/woman what is the shortest cut to conviction? Hey presto – the forced confession, the forged admission, the planted brick, the recycled drug, all become stock in trade. Not for every police officer in every police station but for a sizeable proportion with a disproportionate effect.

Sometimes all this attracted the rather grand title of ‘noble cause corruption’. But it was not as Sir Robert Mark hoped, merely one bad apple at the bottom of the barrel, it reflected an attitude of collusion and unspoken approval from much higher up. It was only when those police officers themselves ended up in the dock that there was a sudden conversion to the benefits of the trial process, which requires guilt only to be recorded when the judgement is sure and certain and the evidential basis has integrity and reliability. No-one is protected when the wrong people are locked up, and make no mistake about it, this lesson has been amply demonstrated by the advances in Forensic Science, DNA in particular, which have uncovered and identified the true culprits. Three obvious examples relate to the cases of Stefan Kiszko, the Cardiff 3 and Sean Hodgson, all wrongly convicted.

My overarching point is that professional standards, both for the police and for lawyers, have to be informed and influenced by a firm belief in the rule of law, fairness, objectivity and transparency. These may be torturous and inconvenient concepts but without them the quality of the society and the communities within which we all live will be sorely diminished. The means of achieving these standards require a process of accountability which is both independent and effective, and seen to be so.

Unless, therefore, there is a genuine change of heart and mind so that these principles are sincerely embraced, there will always be a risk that officers on the ground will be tempted to take the law into their own hands to bring about their desired result. This was especially evident in the wake of the Macpherson recommendations when there were discreditable attacks upon the Judge himself as well as his conclusions. The reaction of a number of hardliners was that the whole exercise undermined the morale of the police force. Thanks to the tenacity and tireless efforts of Doreen and Neville Lawrence combined with many others, including key figures within the police themselves, there has been significant progress.

It is not my intention to personalise this chapter with names and numbers but rather to highlight the ways in which standards lapsed in order to minimise the risk of recurrence. It is in this context that I have attended police colleges and conferences on many occasions with a spirit of constructive criticism and co-operation. Whatever misgivings there may have been, I have always been heartened by the response.

The most obvious evidential area which was susceptible to manipulation was confession and admission. Because the English Common Law for generations was wedded to the primitive belief that no one in their right mind makes a declaration against their own interest, such statements must therefore be true and provide the most compelling proof of guilt. Thus it is hardly surprising that the ‘boys in blue’ duly delivered the goods – the ‘bang to rights’ verbal up the drainpipe, the ‘you prove it’ riposte, through to detailed confessions obtained by oppressive interrogation methods, heavy suggestion and ultimately fabrication. The cases are manifold where unreliable confession evidence rose to the surface: the Guildford 4, the Birmingham 6, Judith Ward, the Darvell Brothers, the Bridgwater 4, the Tottenham 3, the Cardiff 3 – the list I fear is endless.

The impact of these cases was deep and long lasting. Not just on public confidence in the police but on the system itself. It was a massive blot on the landscape which could only be rectified by a root and branch overhaul. Meanwhile it made the task of the ordinary honest police officer hugely difficult.

In 1980 the Runciman Commission undertook the task of researching, reviewing and recommending change. This led to the Police and Criminal Evidence Act 1984 which put in place a scheme of protocols and protections, checks and balances, and a hierarchy of responsibility. Once again this did not initially receive an unreserved welcome within the police. It was thought to overburden daily life with undue paperwork and administration; to obstruct straightforward old-style policing. This began to fade once it was appreciated that the process was as much a protection for honest police officers as it was for the detainee. Audio and video recording of interviews for example became second nature. Now trials and police witnesses are no longer preoccupied by endless pantomime style challenges to what had supposedly been said in a police station. Happily the malaise was treated but not before it had begun to infect other allied aspects of criminal investigation.

Strong views about culpability not only influenced the manner and direction of interviews, it closed off lines of enquiry, limited disclosure and predisposed analysis by forensic scientists. The case which epitomised these issues and marked the nadir of unethical investigation was Judith Ward.

On 10 September 1973, Judith and a friend were leaving a cinema when they heard that a bomb had been detonated in Euston station. With the curiosity that often attends car accidents and other unfortunate occurrences, Judith and her companion went to have a look. They got talking to some men from Belfast in a pub. They were detained by police and swabs of their hands were taken. Both young women had alibis for the time of the explosion and both were released without charge.

Five months later on 4 February 1974 a coach was blown up on the M62 motorway in Yorkshire killing 12 people. On the 18 February Judith was charged with conspiracy to cause that explosion. Thereafter she was also charged with the Euston station incident and another at Latimer College in Buckinghamshire. At her trial in October she was convicted and sentenced to 30 years in prison.

I did not become involved in this case until her appeal which occurred in 1992, following which she was released after serving 18 years, three months and five days in prison for crimes she did not commit. The jigsaw of evidence which convicted her comprised a number of different pieces. Firstly, like Timothy Evans decades before, there were a series of bizarre confessions over the period between February and March 1974.

By the early 1990s there was a much more sophisticated and informed appreciation of the vulnerability of certain types of interviewee, mostly pioneered by the renowned psychologist Gisli Gudjonsson. His seminal book ‘The Psychology of Interrogations, Confessions and Testimony’ should by now be compulsory reading in all police training colleges. Even without his work the remarkable willingness of the prosecuting authorities to rely on these confessions is disturbing.

A total of approximately 1700 statements were withheld. Amongst them were materials and reports relevant to Judith’s mental state and her attempts to commit suicide as well as other crucial incidents. All of this would clearly have had a bearing on an assessment of the confessions. When the doctors were challenged in the Court of Appeal about this the court regarded their answers to my cross examination as ‘astonishing’. They could either not remember or were not especially concerned. Her behaviour they regarded as the kind of thing to be expected in a large remand prison.

The police had also failed to disclose statements which could have made a considerable difference to Judith’s defence case, the thrust of which was that she was a pathological liar and an attention seeking fantasist. A member of the DPP’s staff together with a barrister were criticised for their part in non-disclosure.

The most severe criticism was reserved for the scientists at the Royal Armament Research and Development Establishment (RARDE). One of the other major pieces of evidence against Judith stemmed from swabs that had been obtained from her person and her property. The prosecution allegation was that she had been handling explosives. What had not been disclosed were similar results from other substances like boot and floor polish which could have contaminated surfaces associated with Judith.

In an historic judgement by the Court of Appeal Glidewell LJ handed down some excoriating and strident observations:

“Three senior RARDE scientists took the law into their own hands, and concealed from the prosecution the defence and the court matters which might have changed the course of the trial. The catalogue of lamentable omissions included failures to reveal actual test results, the failure to reveal discrepant Rf values, the suppression of boot polish experimental data, the misrepresentation of the first firing cell test results, economical witness statements calculated to obstruct enquiry by the defence and most important of all evidence at the trial in the course of which senior RARDE scientists knowingly placed a false and distorted scientific picture before the jury. It is in our judgement also a necessary inference that the three senior RARDE scientists acted in concert in withholding material evidence.”

The court was not content to merely describe what had gone wrong but went on to proffer an interesting explanation for how this has come about. Lord Justice Glidewell’s assessment reflects entirely the central thesis of this chapter. In the absence of a devotion to the rule of law and objectivity, justice becomes thrown to the winds. His words should ring down the corridors of our system and remind us of its fragility:

“For lawyers, jurors and judges, a forensic scientist conjures up the image of a man in a white coat working in the laboratory approaching his task with cold neutrality and dedicated only to the pursuit of scientific truth. It’s a sombre thought that the reality is sometimes different. Forensic scientists may become partisan. That is what must have happened in this case.”

We can only be thankful that by the time of Judith’s trial and appeal capital punishment had been abolished. In one sense this is a measure of the true impact that unethical investigation can have; a finality that cannot be repaired.

The decision in this appeal led to a much stricter regime for disclosure with the court acting as a monitor and arbiter. Unfortunately since then this has become seriously watered down. The regime is now dependant on a series of stages which trigger specific forms and categories of material. I realise that this is a fairly technical and burdensome topic but it lies at the heart of nearly every miscarriage.

What has to be remembered is that an investigation is carried out by agents of the state who have at their disposal panoply of powers. They will inevitably accumulate a massive amount of information and evidence. The process of collection, collation and especially analysis requires a combination of sensitivity, intuition, lateral thinking and ruthless objectivity. Too often early information is either overlooked or rejected or improperly stored. This is graphically detailed in the Lawrence Report. Too often targeting the usual or anticipated suspects steers the investigation away from less obvious alternatives. The repercussions can be disastrous for the way in which subsequent participants are briefed. The most common example is the lab. liaison report, where scientists may be provided, either wittingly or unwittingly, with a somewhat jaundiced account of the background to an incident. Unsurprisingly this also occurs in relation to post-mortems and subsequently in conferences with experts and lawyers. Once the die is cast it penetrates many layers of material and is difficult to identify, isolate and erase.

An interesting and prevailing pre/misconception which can influence disclosure officers and others beyond them in the decision making chain, is the apparent irrelevance of a negative or non-finding. Here the line between deliberate non-disclosure and misguided judgment becomes a fine and blurred one. This arises in the examination of the crime scene as well as the examination of persons and their property.

A non-finding may mean no one looked in the first place; or it may mean they looked and found no traces or no recoverable traces, or traces were recovered but there has not been time or resources to devote to them. (Blood; hair; saliva; skin; semen; foot/finger/palm/ear/shoe print; distinctive soil or debris; paint or surface varnishes; fibres). Each aspect of these findings bears very obvious but different ramifications and interpretations. Reports or statements by witnesses involved in this routinely omit any reference to these aspects and discovery of what actually took place will depend on assiduous and perceptive efforts to challenge the ominous silence.

A negative finding usually means there was a recoverable trace but it cannot be related to the suspect. Once again this can have a number of significantly different meanings. At one end of the spectrum, ‘it is not the suspect, but we don’t know who it is’. On the other hand ‘we do know who it is and it relates to someone with legitimate access or even someone who was another suspect’. At the other end it may describe a situation in which the amount of material is insufficient to meet the evidential threshold for a positive identification. At one time statements, reports and general disclosure failed to reveal the existence of traces relating to other people. They were regarded as irrelevant. This was sometimes a very convenient shibboleth for unethical practices.

Lest we are tempted to rest on the laurels of more recent progress, it is necessary to remain alert to the risks of a relapse. The repercussions of non-disclosure arose once more in the recent appeal of Sean Hodgson in 2009. But there are now much broader issues concerning the ethics of policing in relation to public order, terrorism, and major organised crime. Although some of these are presently under review by the Home Secretary, the extensive powers of stop, search, arrest, detention, intrusion and surveillance which have become part of the police armoury over the last 30 years need to be carefully circumscribed.

Public order policing is not normally associated with miscarriages of justice but there is a sense in which this needs to be reconsidered. The effect of police strategy, tactics and actions in this very important area has also resulted in innocent victims.

The right to individual and collective peaceful protest is not only vital to the health and vibrancy of our democracy, it is one of the few ways outside the ballot box that feeling can be expressed in a compelling public forum. It is for this reason that it is used as a prism for assessing whether other states and regimes truly espouse free speech and association. Its absence or repression becomes the hallmark of totalitarian or authoritarian regimes. This also explains why the preservation and promotion of these rights has been clearly placed centre stage in the Coalition Agreement forged just after the General Election in 2010. This appreciation and acceptance however, has not always been adopted by elements within the police.

Part of the problem is constituted by the very nature of a protest, whether it takes the form of a meeting, a march, a picket or a rally. Commonly the protest concerns strong objection to government policy. But while the police may be seen as representing the state by some protesters, at the same time, some officers may regard themselves as guardians of government policy facing a hostile enemy. I’m fully aware that a few activist groups may exploit the situation violently and that groups of officers become tempted to do the same. The risk is however that an ‘us/ them’ mentality develops in which the vast majority of ordinary citizens become trapped, sometimes injured and occasionally killed. Examples are not difficult to find, stretching from Kevin Gateley and Blair Peach in the early days of antiracist marches in the 1970s through to Ian Tomlinson and the G20 protest in 2009.

This dichotomy is exacerbated by a number of interacting factors. ‘Corralling’ or ‘kettling’ large sections of a crowd into a space they cannot or are not allowed to leave is counterproductive, intimidating and possibly unlawful. This matter is being litigated at the moment. Random stops and searches within designated areas are provocative and have been held by the ECHR in relation to Section 44 of the anti-terrorist legislation (the Terrorism Act 2000) to be unlawful. A robust brotherhood mentality fostered by specialist squads like the ISU and TSG can distort perceptions. A peaceful protester soon becomes metamorphosed into a potential criminal more commonly the target of everyday policing.

This is not to suggest all police officers fall into this category but there needs to be a much greater awareness of the risks. Many of these dangers became starkly exposed during the miners’ strike. Short shield arrest units employed excessive force. Long shields were used to intimidate. Short and long truncheons were used indiscriminately. Mounted police charged into crowds. False allegations were made about the activities of individual miners. Dungaree style uniforms were worn without visible identification. Unlawful roadblocks were set up. The responsibility for these failings cannot be left at the door of the rank and file but can be traced much further up the chain of command. Although the miners charged with riot at Orgreave (a trial in which I was involved) were acquitted, it was an injustice that they ended up in the dock at all. On 18 June 1984 they were merely exercising their right to peaceful protest.

Should it be thought that this is all a thing of the past, just examine very similar tactics that have been in use since – at Wapping, Trafalgar Square/Poll Tax demos and G20. Much of it has been caught on film particularly in relation to the Fairford case, where coach loads of peace protesters were wrongfully stopped, detained and returned to London, and protesters outside arms manufacturers were manhandled and thrown to the ground (in Taking Liberties, Revolver Films). It has to be seen to be believed.

In my view one of the most pernicious programmes initiated by the Blair government and embraced by a number of police departments was the ‘Prevent Agenda’. The kind of information that was encouraged and traded created an atmosphere of suspicion and rumour and was often based on the subjective characterisations of target suspects and communities. This was covert McCarthyism of the worst kind and should have been resisted in favour of accountable, transparent, evidence-based investigation. Besides raising the spectre of some nascent form of ‘thought police’, it also entailed the real possibility of yet more miscarriages of justice.

The key to change, across all the areas I have canvassed above, lies not only in a different mindset brought about by leadership and progressive education and training but also in effective accountability. To date this has not been satisfactorily accomplished either within police forces, by successive Home Secretaries, by the IPPC or by the DPP. I have long argued for an external judicial figure similar to the Juge d’Instruction in France, to oversee and control policing issues described in this chapter. At the same time, there has to be direct accountability to the community through local committees upon which there is a predominance of ordinary members of the public, who are not political appointees. Only then will we have a chance of achieving ethical standards in policing.

24 October 2010

Michael Mansfield’s Memoirs of a Radical Lawyer is published by Bloomsbury

RULE WITHOUT LAW by MICHAEL MANSFIELD QC

8/5/2004
Small wonder the USA has steadfastly opposed the establishment of the International Criminal Court (ICC). The USA always feared its agents might be amongst the first to end up in the dock. The latest revelations from Iraq show how right they were. Putting individual perpetrators of torture and abuse on public display and trial in the USA, as Bush and Rumsfeld promise, necessarily misses the point. It’s the regime, and responsibility for the regime, that has to be brought to book; especially when the very same politicians proclaim the need for such a process in relation to Saddam Hussein as well as various leaders from the Balkan conflagration.

The UK, however, did sign up to the ICC but has so far refused to investigate the possibility of war crimes having been committed by its own forces in pursuance of its policy of war in Iraq. It was for this reason that I and a number of others petitioned the ICC earlier this year to undertake this task. The situation now is far more serious and one which cannot be left to the political accountability of the ballot box. Whilst an investigation by the MoD and Royal Military Police of individual allegations is extremely important – it is the question of “Coalition Government” responsibility which looms larger.

The Red Cross (ICRC) completed its work between March and November 2003. It appears that both at that time and subsequently, when it presented its report to the Coalition Forces (CF), that respective Governments must have been made aware of these outrages. A pattern of abuse tantamount to torture was clearly disclosed. It could not be more damning especially when it also appears that training in some of the techniques employed was carried out in the UK. Who within the UK Government knew about this? What remedial action was taken? Why were the public not informed? If they claim they did not know, how was this possible? Let’s skip another Hutton-style Inquiry and get some answers in court. Given attempts by some to deny, to limit the scope of the abuse to a few, to be more concerned about image than victim – this almost dwarfs the attempt to convince the British public about the presence of WMD.

The ICC statute expressly provides for the situation uncovered by the Red Cross. Such activities are catagorised as “crimes against humanity” under Article 7 – where there has been a widespread or systematic course of conduct involving the multiple commission of acts such as murder, imprisonment, torture, sexual violence, inhumane acts, in violation of the fundamental rules of international law – against a civilian population in furtherance of state or organisational policy. What has happened in Iraq cannot have been perpetrated without organisational approval or connivance. Indeed the excuse being peddled by individuals so far is that this was an accepted culture of violence.

Bearing in mind a background of illegality – the war itself, war crimes committed in its execution, the initial occupation, subsequent atrocities particularly in Falluja, continuing detentions in Guantanamo Bay – it is now time for the UK Government to sever its links with the Bush administration, to announce a staged withdrawal from Iraq and to initiate a thorough and far reaching investigation pursuant to Article 7 at a level beyond individual soldiers. If there is a continuing refusal to do this, it’s difficult to say why the UK bothered to sign up the ICC in the first place. It also sends an unmistakeable message and example to the rest of the world. In this event we will submit a second petition to the ICC in the hope that the rule of law will once again have a place in our so-called democracy.

Michael Mansfield’s Memoirs of a Radical Lawyer is published by Bloomsbury