G8 pushing for “preparatory” terrorist offences, secret trials and secret evidence
01 January 2004
It has emerged that proposals by the UK Home Secretary, David Blunkett, to introduce sweeping changes to the way that “suspected” terrorists are treated originated not in the Home Office but in G8 - the intergovernmental group comprised of the USA, Canada, UK, France, Germany, Italy, Japan and Russia. Blunkett sidelined the proposals after admitting that he was “surprised by the ferocity of the response” (26.2.04). However in G8 the ideas are well advanced.
Blunkett announced the proposals on 1 February while in India. He said that where "suspected" terrorists were concerned the government wanted to take pre-emptive action by lowering the standard of proof so that suspects could be charged before mounting an attack and tried in secret (in camera) by a vetted judge. Evidence would be kept secret from the defendants so as to protect the sources of MI5, MI6 and GCHQ or from a third state like the USA - this would also entail "special advocates", state-vetted defence lawyers who could be trusted not to pass on intelligence information.
As the evidence presented would come from intelligence and security sources he said that:
It needs to be presented in a way that does not allow disclosure by any of the parties involved, which would destroy your security services. It is about the threshold of evidence and the nature of those involved being accredited and trusted not to reveal sources
So the government wanted to look at the "evidential base and the threshold of evidence". The level of proof he argued could be lowered from "beyond reasonable doubt" to the "balance of probabilities". He said he intended to publish his proposals in an options paper on anti-terrorist laws.
The reaction to the proposals was immediate. Baroness Helena Kennedy QC said they were "an affront to the rule of law" and that "he really is a shameless authoritarian". Louise Christian, a lawyer representing a number of those held in Guantanamo Bay, said: "I don't think he is fit to be Home Secretary". Newspaper editorials weighed in against Blunkett's proposals, a Guardian editorial called it "Affront to the rule of law" and ended by saying that by refusing to "seek a balance between public safety and the rule of law, he loses all sympathy".
On 7 February six of the leading lawyers in the country – Nick Blake QC, Andrew Nicol QC, Manjit Singh QC, Ian Macdonald QC, Rick Scannell and Tom de la Mare – wrote an “open letter” condemning the proposals which:
would contradict three cardinal principles of criminal justice: a public trial by an impartial judge and jury of one’s peers, proof of guilt beyond reasonable doubt, and a right to know, comment on and respond to the case being made against the accused
Top legal figures added their views, on 10 February the Director of Public Prosecutions, Ken Macdonald QC, cast doubt on the idea of lowering the standard of proof.
On the same day the Prime Minister, Tony Blair, hinted that the standard of proof might also be lowered to confiscate assets of organised criminals.
Professor Graham Zellick, Chairman of the Criminal Cases Review Commission (CCRC) said:
It would involve throwing out centuries of principle, not just tradition. Just cast your minds back a few years to the wrongful convictions and miscarriages of justice that led to the CCRC being created. And they were convictions secured with the requirement of proof beyond reasonable doubt (16.2.04)
In the event the promised "options paper" did not include any of these proposals and the whole episode was put down to "kite-flying" by the Home Secretary to see how the ideas would be received.
However, it appears that the origin of these proposals come from a much higher source, the working parties of G8 where Home Office, MI5 and MI6 officials are key players (alongside the USA) in its working groups. Blunkett would have been briefed on the “state of play” on current discussion.
On 23 February this<