Learn from the mistakes of others

the us government has shown some signs of real disclosure this week. a recent appointment to the secret fisa court has been announced publicly.

some things still work. albeit shakily.

the role of the court has been brought up by the issue of warrantless communications surveillance. something, it turns out, that was discussed following september 11, 2001.

speaking of anti-terror measures, the uk government is contemplating reintroducing a proposal to allow detention for up to 90 days without charges being laid to facilitate the interrogation of suspected or alleged terrorists. at present suspects can be held for up to 14 days, with a new law extending that to 28 days.

there has also been discussion of replacing the normal adversarial judicial processes with something more akin to the french inquisitorial magistrate.

Q333 Mr Clappison: Drawing a distinction on those grounds between this type of arrest and the arrest which is made in other types of criminal case, would you be open in your thinking to consider different treatments of the arrest process through judicial oversight, perhaps, for example, through judicial oversight from before the point of arrest, which is what I believe happens in France and a few other places?

Mr Clarke: I have said before publicly (and I have always got to be careful what I say because I am now speaking on behalf of myself and not the Government), I think that a supervisory system and investigating magistrates regime is very superior to the system that we have in this country. That is not the position of the Government, I make clear. As I say, that is my personal view, but I do not think counsel must swathe themselves in distinction and I do not think the adversarial system has been a particularly effective means of securing justice, but, I admit, I am not a lawyer and, therefore, not steeped in the conventions which say that what I have just said is a load of nonsense, but many of my colleagues in government, as in Parliament, are lawyers who believe that the current system is perfect.

changing the role of judicial officers in the criminal justice process would require a lot more than merely changing the law. whether "supervisory magistrates" are superior to the the current approach is an interesting question. of course, the way the judiciary and the police work and interact in france (and other civil law states) is somewhat different to the independence of british (and indeed australian) judiciaries and police forces.

the implication in the british home secretary's assertion is that british police need to be supervised to effectively police terrorist threats in britain. i imagine that implication is not popular with either police or the judiciary. it might well satisfy some lawyers, and no doubt a great many more citizens.

having spent nine years in law school, including three as a postgraduate, i realise how hard it is to convey to the general public just how significant such a proposal is, and just how much change it actually involves. it is not just a matter of custom or conventions. the whole balance of common law legal systems has developed differently to their civil law neighbours.

that said, here in south australia we have adapted elements of the inquisitorial process to widen the scope for magistrates and judges under certain circumstances to ask direct questions of witnesses and in particular of accused persons. generally this has been explored in circumstances where the accused is particularly vulnerable in some way - for example, where they have a mental illness of some kind. [i have experienced this myself both as counsel and as the person being questioned.]

on the subject of disclosure (while discussing 'control orders'), lord carlile of berriew qc [a member of the house of lords] had this to say to the same home affairs committee inquiry:

Lord Carlile of Berriew: ... I think it is legitimate to have that debate from the proper level of public information as to what the restrictions are. I believe the same applies across the board on those issues. The Government should give the public as much information as they can without compromising public safety. I think this is one of the few things in the area of terrorism legislation that the Americans are better at than us. I hasten to add that I think that their legislation, the Patriot Act, for example, would never have got through the two Houses of this Parliament and it probably would have brought a government down, but, in terms of public information, they give much more.