Fundamental Questions of Ethics and Justice

By AM Thursday, August 2, 2012

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Transcript of an interview/discussion on BBC Sunday Sequence, 22nd July 2012. Host Mike Philpott (MP) interviews Tom Elliott (TE), former Ulster Unionist Party leader, and law professor Phil Scraton (PS) about the imprisonment of Marian Price and Martin Corey, and the issue of “closed material procedures”. As always thanks to our transcriber.

MP: There's a bit of a justice theme running through the program this morning and the continued detention of Marian Price and Martin Corey poses some fundamental questions of ethics and justice. Most particularly, when does the public interest or a perceived threat to public safety override the core of the justice system – that it should be seen to be done and that everyone deserves a fair trial?With us now is Queen's University Belfast Professor of Law Phil Scraton and the former Ulster Unionist leader Tom Elliott. Tom Elliott, Republicans see the continued detention of Marian Price and Martin Corey as “selective internment”. How would you see it?

TE: I think, Mike, we need to look at this in the round and these are not school children who are being detained for small misdemeanors. These are ruthless terrorists and criminals who have been locked up in gaol in the past for some of their actions. Now I think there is, obviously, intelligence. And we must give some credibility to the intelligence that comes forward and we can't hear all of that intelligence...

MP: They may have past convictions but they're not currently being held on a conviction.

TE: No, but what I'm saying is there is obviously intelligence there. And public safety, the safety of our citizens, must come paramount in this. And you know, when you look back at the history of these people, and particularly if you want to look at Marian Price, and she was actually released in 1980 and got a pardon at that stage or was released anyway. And you have to question .. .she was released because she was on her deathbed was the indication at that time. Now, that's quite a number of years ago and Marian Price is still alive and well. And obviously it's been suspected that she has been involved in some very, very devious and terrorist acts and we have to take that into account.
MP: But you can't say that without seeing any evidence.

TE: Well, obviously she has been detained in connection with the murder of two soldiers in Massereene. Obviously there have been other issues around the Easter Rising Commemoration ...

MP: No. She wasn't charged. She wasn't convicted.

TE: She was detained and obviously imprisoned because of suspected involvement of those murders. But quite clearly, you don't be locked up for nothing I have to say.

MP: Tom, this is incorrect. We don't know what reason she's being held for.

TE: No, but she was arrested. I think we have to accept ... she was arrested in connection with the murders of two soldiers ...

MP: But if a person is arrested and released – you're saying that they're not innocent?

TE: No indeed. I'm not saying that whatsoever. But what I'm saying is there's obviously intelligence there of which the intelligence services are concerned with the public safety of the wider community. Now I think that anybody in this community would want to ensure that the public safety is paramount. And I'm quite clear and I'm convinced that these people are being held because of the concerns of public safety and that I support.

MP: Phil Scraton...

PS: Well, with all due respect to Tom Elliott, I don't know how many times in that brief response he used the word “obviously”. And I think there is the tripwire for all of this. We are putting our faith in a system that is operating outside of due process. I think we have to go back to basics here. And we don't have the death penalty. The most serious punishment that we can inflict as a state on behalf of its people is imprisonment. Everybody who goes to prison has the right to know the reason for their arrest/their detention. To be charged with an offence in a reasonable amount of time. The case has to be heard in a court and it has to be heard promptly. The proceeding have to be conducted fairly, thoroughly, speedily and with the evidence supplied to the defence. The defence should always know precisely what the person is being accused of. And all of us in any situation, regardless of our past, we are innocent until we're proven guilty. And that is the foundation of a system that we operate, whether Tom likes it or not, of natural and open justice. It's enshrined on our law. It's there within the Human Rights Act. It's there in the European Convention on Human Rights, Article Five, the right to liberty. And it's important because these are incredibly emotional and emotive cases. It's important we think about how this has operated already in the UK under the Anti-Terrorism Crime and Security Act. When people were released, having been held indefinitely in Belmarsh Prison, Lord Nicholls of Birkenhead in his ruling stated: “indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law.” He went on: “it deprives the detained person of the protection that a criminal trial is intended to afford.”And that issue, along with Article Six, the right to a fair trial, is at the core of these cases. And what we've seen invented since 1997 is this this phrase: “closed material procedures”. And what they mean is that now we can now hold a detainee without revealing to them, their legal representative or to the public, the case against them. In other words, the most fundamental issue, that we have a right to disclosure of the case against us, is put into abeyance.

MP: Those “closed material procedures” weren't even introduced as an anti-terrorist measure.

PS: No. They were introduced in terms of immigration. Now the serious issue here is that they're currently being extended and the proposal is to extend them under the UK Justice and Security Bill. Now this widens the net. It takes it beyond...it's the same with all of these situations. They're introduced, sometimes, for good reason. I don't think there was actually good reason for these being introduced. I don't think there's ever a good reason for putting “on hold” due process and open justice. But, they were introduced in terms of immigration and now they've been extended to include a whole range of issues. There are plenty of people who are out there that we would want to see pulled out of every day life for whatever reason. We would think that as individuals; that's our prejudice. Politician might actually argue for that. But we have to have due process. What “closed material procedures” gives is exclusive discretion to government, usually a minister of state. Now the issues there is, we always say: Oh, this is Owen Paterson (who) has taken the decision. Owen Paterson hasn't taken the decision. He is the front person of the political process. The decision is being taken by those who are actually responsible for security.

TE: I think Mike, to be fair here. Owen Paterson's not taking it for a political decision, as Phil seems to indicate. Surely this is an intelligence decision. And you can't just expect him not to take that decision whenever the intelligence is there and whenever there is good reason. I would like Phil to clarify: if he thinks public security and public safety should be paramount?

PS: I think the issue, Tom, is that it's really important in these situations that we have a full form of accountability for these kinds of decisions. Otherwise that intelligence, as we've seen in the past, can put people away for a long period of time without any rights. Now of course, it's always a balance. Nobody would disagree with that. But the issue from my point of view is that we always look to due process. Well, not my point of view, it's enshrined in our law.  What we have here is a situation through “closed procedures” of advocacy or legal representation, which we all have a right to fundamentally in our law. It's impossible! They can't access the intelligence report that you're talking about.  In fact, Lord Chief Justice, Lord Bingham, now retired, died in fact: “it's like taking blind shots at a hidden target” was his phrase as Lord Chief Justice. In other words, your representatives have no way of knowing what the case is against you.

TE: But surely Phil you must accept that this is not a widespread activity.

PS: I agree.

TE: This is activity that is in a specific and certain cases. Now you must accept that there is intelligence information. That there is information out there and probably in the long term, evidence, that will secure possible convictions against these people. And you must accept that there is some of that information that cannot be released at this stage for whatever reason. And that these people, in the best interest of public safety and the wider community, need to ensure that these people are not on our streets. How many times have we witnessed in the past that terrorists have been released and given those various opportunities and what they do is they go back and they re-offend?

MP: Tom, isn't there a danger that this becomes bogged down in the issue of personalities? I mean we saw a lot of intemperate coverage in the national newspapers over the case of Abu Qatada and this is similar.

TE: Yes, I think that's right.  Obviously there are personalities in it. But that's what I'm trying to say: it's down to specifics. And I'm not saying it's just this personality or another one. It is down to specifics. And we have to rely somewhat on intelligence and information that is there that may not always be possible to publish.

PS: I'm very concerned when I hear a senior politician come out with the phrase: “probably in the long term it could lead to a conviction.” We cannot operate a judicial system on the basis of “probablys” or “obviouslys”. We have to know what the cases are in all of these situations. What is absolutely clear is that when somebody is convicted of a serious crime, whatever it is, in these cases they're very serious convictions. However the person serves their time. They're finished with that. They're then released. In one case, on a pardon which is obviously disputed and the in other case in terms of licence. So that life sentence stands over them for all time. If they are being recalled they have a right to know, and so do their legal representatives, the precise reasons for that. Otherwise we do end up with probablys”, “obviouslys” and all the other equivocations that Tom is giving here. This is ...

TE: But I hope Phil you're not suggesting in any way that people should be released at will who may be a danger to the wider community and society.

PS: You see, Tom.

TE: Hold on! I think we must establish that if there is intelligence, would you accept that if there is intelligence and information there in place that these people should be held to protect the public and give the public safety?

PS: I have absolutely no question about that issue. But you again use those emotive phrases like “at will”. Nobody's released at will. They're released under very clear guidelines through Parole Commission. They're released under very clear circumstance....

TE: (Over-talks and interrupts)

PS: Now let me finish. I let you finish so let me finish. So they're not released at will. The issue is of course we have a right to protection, as a people - as a citizenship, we have a right to protection in all situations. No question about it. But we cannot ever go down the track of the thin end of the wedge of allowing people to be held in situations where the case is not even established to their legal representatives or in the wider context. Otherwise all we do ... it's a act of faith then to put our assumptions and presumptions into the hands of security services which in this case I have to say, not these particular cases, but in terms of issues in Northern Ireland, do not have a good, sound track record.

MP: Tom, Tom Elliott, Martin Corey was released to go to a funeral. If he's such a threat, why would that have happened?

TE: Well, obviously again that was information that was held there at that particular time. So I'm assuming that he was given the opportunity to go to the family funeral. I'm not saying I agree with that but that is how it was at that particular time.

MP: But he wasn't a threat that day but he could be a threat the next day. Is that what you're saying?

TE: Well, obviously I'm assuming he was allowed out to the funeral under some sort of security – under some sort of management process. Whereas if he's allowed out at will then he's allowed to roam as normal people are. But I think we have to go back to the argument that Phil was trying to make there and he's actually duplicitous in his argument – in one place he's saying he supports the public safety aspect but on another case he saying oh, well it shouldn't be allowed to happen at will.

PS: That's not duplicitous.

TE: I think there needs to be clarity here.  Public safety must be paramount in this case and that is why I believe these decisions have been taken. And I do have to go back to the point: Marian Price was, obviously, was released on licence or a pardon - as Phil says is disputed - in 1980. Now it's is quite clear that that was a licence and there is the opportunity to put her back in prison at any stage during the time of her life if she revokes that licence.

PS: It's the opportunity is....(scoffs) I'm not too sure I like your use of the word “opportunity”

TE: Well I have to say Phil you don't seem to like much of anything of what I say.

PS: I think that your argument is absolutely flawed. I mean, the bottom line about public safety is this: of course, I would be the first person to argue for public safety in all situations. But we cannot rely on people behind closed doors making arbitrary decisions. We have to have a fair and open justice system. That is what we're signed up to. That's what democracy is all about. We cannot have security services the driving force of the judiciary and we can't rely on that. And when you talk Tom, and I have to say that the kind of phrases that you use: “assuming” - “presumption” - all of those kind of comments - “obviously”... these are issues where you as a politician are putting your trust in security services over and above what we have in our democratic society which is the separation of powers so that the judiciary themselves make those decisions on our behalf. And the final comment I'd would want to make on public safety is: if we're really concerned about cases like this have to tread very, very lightly. Because when we put people away who we are saying “we have intelligence on” that has an impact on the community. That has an impact within our wider society. In actual fact, in putting people in prison without trial, in detaining them without them knowing the circumstances of their detention, can in actual fact lead to greater unrest in our communities and jeopardise public safety even further. So it's not a duplicitous argument at all. I believe in the wider remit of public safety and the understanding of how the rule of law connects to that. In these instances, regardless of these two people's past, we have to go through a process that is due, that is accepted and that is part of our democratic society, including the separation of powers. And to be frank, I'm absolutely shocked that a senior politician could sign up to and agree with any kind of procedure that enables security services via a minister of state to create a case against people that nobody can see (and) that completely denies the objective of what our legal system and our judicial system is about.

TE: I will say, Phil, that I will put my trust in security services' assessments. We have to. They're put there to do that. They're put there to give the politicians and the senior political representatives that guidance, that information and that intelligence that is required on these types of people. We as politicians do not have any other opportunity to assess that. That is why there must be some reliance put on those security services and their briefings and their intelligence.

MP: Tom, the logical extension of your argument is that internment worked.

TE: No, indeed I'm not saying that whatsoever. But let's not forget, these are in specific cases. And I'm not personalising it. These are in specific cases. This is not widespread. And what I'm saying is we must rely on these intelligence services because that's what they're put there to do.

MP: Did internment work or was it a failure?

TE: Sorry, is that to me?

MP: Yeah.

TE: Well, I'm not saying it worked at all. But it was an operation at the time that was attempting to help the situation. And it may not have helped it at that particular time. But I think we're dealing with a totally different scenario here. We're dealing with a totally different situation here at this time. And we're dealing with two individuals whom the intelligence services obviously believe it would be not in the best interest of public safety to release them.

MP: Phil, is there ever a time when it's okay to detain people without trial? I was reading a piece by Robert Lambert of the University of St. Andrews and he said he opposed detention without trial but he said it was right to detain British supporters of Nazi Germany during the second World War. So is it just a case of degrees or personal opinion?

PS: I think every case has to be taken on its merits. Of course, there will be a situation where people need to be withdrawn from society without trial for a period of time where there is a known, clear threat and that threat is established. But you cannot detain people indefinitely without trial. That's the core issue.  One of these two people has been in prison for two years. The other has been in prison for one year. It's a completely unacceptable use of those powers. The logic of Tom's position, which is the dangerous logic, is that somehow and for some reason that I can't fathom, he is willing to put his faith as a politician within the security services' judgment, who then advise politicians in cases such as this, without there being any clear line of accountability. Now again this is another key principle of our system; both legal accountability and political accountability. And my feeling here is that again it's another thin end of the wedge. It is actually saying that there comes a time when we just throw out all of our commitment to democratic accountability within our society and we turn to a process which is run by people whose identity we don't know, it's behind the scenes, and we give them these extensive powers. Now I'm not saying we that shouldn't withdraw people from society. But the principles are: swift appropriate due process justice. And that is what has not happened in these cases.

TE: I'm sorry, Phil, but again you're again arguing against yourself. Of course I have said and I have relayed this. We have to put our faith in  intelligence services on occasions. And there is no doubt about that. That is what they're there for. If we didn't have those intelligence services how would we ever had made any captures in the past?

PS: Of course.

TE: How would we ever have dealt with terrorists in the past?

PS: Of course. Of course. It's about swift justice, Tom.

TE: You're actually being duplicitous in what you're saying, Phil. I have to say all that you're trying to do is discredit me and discredit the security services for what they're doing and you're failing abysmally.

MP: Okay gentlemen, we have to leave it there. Phil Scraton, Tom Elliott ... thanks very much indeed.