The June 2019 Interim Pay Offer by the CPS and the MoJ

Here are my thoughts about the interim fee offer by the CPS and MoJ. It’s important to look at the context as well as the content of the offer. It’s not perfect but we’ve come a long way.

Context

In the dark days when Grayling was Lord Chancellor, there was little engagement, but palpable hostility, between MoJ and the criminal Bar. Since then, both sides have realised that constructive engagement is indispensable. The relationship will always be adversarial to a degree, but as we know from our everyday work, being adversarial is perfectly compatible with civility and cooperation, because it enables progress to be made. We looked over the edge of our silos and saw where there is common ground, and where the real issues lie.

The Bar’s contribution to the redesign of AGFS was always predicated on the government needing to invest significantly more money, in order to make careers and quality in criminal advocacy a sustainable long-term proposition.

That has always been the ambition. An increased fees is not an end in itself: the point is to ensure that the advocates who serve the Courts and the public as prosecutors and defenders are the best advocates, and they get a fair reward whether they are starting out or more experienced.

The leadership never conceded that the ‘figures in the boxes’ were enough to ensure that, and the re-design was always considered to be work in progress. The MoJ with its squeezed budget has felt unable to match our justified demands and ambitions. Put simply – we think we should be paid more, and they are unable or unwilling to commit as much of their budget as we would like. But engagement and good will, have enabled the dialogue to continue.

The pinch-point was always going to be PPE. The explosion of digital evidence has made PPE an unworkable and inefficient proxy for the complexity and difficulty. It is hard to defend it as a one-size-fits all method for assessing fees. It also created disparities between the incomes of barristers who have been routinely briefed in high PPE cases and those who have not. Some never got them. Getting many such cases, or getting none, may not reflect the quality of the advocate.

Those who got the occasional such case may have looked to them as a windfall to make up for the cases that did not pay. But reliance on unpredictable windfalls is no way to earn a living when bills have to be paid on time. The concentration of high PPE cases in a small number of hands (this is what happens) is not a fair distribution of work or money either. The loss of income is, of course, painful for people who have been used to making much more money than they do under the existing scheme. It needs to be compensated.

As the Bar said all along, and as the MoJ now recognise, the present PPE arrangements are too crude. The principle of payment ‘for work done’ is not always being kept to. It is not that the size of a case is never a guide to its complexity or seriousness. The trick, not yet achieved, is to devise an agreed method that identifies those high PPE cases that really do call for payment according to their size. Work is continuing on finding one.

Pausing there: there are those in the profession who think both that the MoJ would like to destroy the criminal Bar, and that the Bar’s leaders are somehow complicit or too feeble-minded to resist. Conspiracies theories may seem to explain complex phenomena and so give comfort to their proponents. All I can say is that in my experience of dozens of hours in discussion with MoJ officials, what they want is sensible and mature engagement; some may be more sceptical or less well informed than others, but at no stage did I sense a desire to destroy us. As for the Bar leaders, they have been resolute in defending the Bar’s interests and supporting our case with evidence.

Some people call for the appointment of an external negotiator. They miss at least two things: (1) barristers just are professional negotiators and persuaders; (2) if the external negotiator fails to win all or enough of the Bar’s demands, who is to blame? The people who appointed them. I for one would not want my subs to go to anyone who was not a member of the profession when dealing with issues like this.

It takes time to change entrenched attitudes: the old hostility may have faded, but the churn of ministers in the MoJ since 2014, and the loss of many of the more senior officials, meant that progress faltered. The Gauke administration has been relatively stable, and under him the response to the Bar’s demands has been positive. We voted in favour of AGFS Scheme 10 last summer, but the narrowness of the result and the unresolved issues gave the CBA a mandate for continuing to press for improvements. This resulted in the settlement reached in December 2018.

Far from giving up at that point, the Bar has continued to work for a better settlement. The CBA decided the time had come to tackle the CPS over its shocking long-term failure to pay barristers properly for so much of their work. It was the Bar’s decision to link the demands over prosecution and defence fees together, so it should come as no surprise that the CPS and MoJ – each a custodian of taxpayers’ money – should link them too. It’s not fair to see this as ‘divide and rule’.

Content

There’s no point repeating what you will have read in the messages from the CBA, the Chair of the Bar, the SE Circuit, and the DPP. You know what is on the table now, and what has been pledged.

The current Justice Secretary and Attorney General are both Bar-friendly but are unlikely to remain in post in whatever administration takes over in July. Their successors may revert to the older approach if the Bar rejects the offer. If background distrust of the government is well-founded, then why trust the new one any more than the present one?

This is an interim offer, not a final deal. The onus is on the CPS and MoJ to make good on what it has pledged in the next phase. If they fail, then action may be inevitable. 

The point of what I’ve set out here – if you’ve got this far – is that real progress has been made – much more slowly than anyone would have wanted, but nonetheless. It looks set to continue.

This is a win. 

 

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RAPE TRIALS & JURIES

Jolyon Maugham QC, the well-known Remain campaigner and tax law specialist, writes in the New Statesman of the ‘impunity’ that he believes the legal system grants to men who commit rape. He is shocked by the ‘attrition rate’ between the number of sexual offences of rape and the number of convictions in Court. He cites figures from the Office for National Statistics that suggest that in 2013 ‘there were an estimated 60,000-95,000 victims of rape in a year, there were only 1,070 convictions.’ He believes ‘the solution can only be to change the law’, and questions whether juries should try rape cases at all.

Whether juries are fit to try many kinds of case is a question that is never long out of public discussion. There are those like the outgoing director of the Serious Fraud Office who thinks juries should not try serious frauds, because they are too complicated; others say the same about cases with difficult scientific issues; and many in the senior judiciary think that defendants should lose the right to choose jury trials in cases that are too simple, such as shoplifting (not so simple if you wrongfully acquire a conviction for dishonesty and cannot get a job). In short, the jury has many enemies.

But the jury is you and me and our neighbours. Young and old, wise and foolish, all made of the same crooked timber of humanity as the judge, the police officer and the defendant on trial. The genius of this accidentally arrived at way of doing justice is that twelve turns out to be the right number to even out the differences. In her seminal 2010 study Are Juries Fair?, Professor Cheryl Thomas was permitted to speak to hundreds of jurors about their deliberations. The answer to her was Yes, with caveats including the need to give more help, such as written directions on the law and a list of the questions jurors should ask themselves on the ‘route to verdict’. The Courts have adopted most of her recommendations.

Professor Thomas corrected one of the ‘Misconceptions about jury verdicts in rape cases’: ‘contrary to popular belief and previous government reports, juries actually convict more often than they acquit in rape cases (55% jury conviction rate)’. That figure was consistent with the general run of cases, and does not suggest that there is anything peculiar about rape trials that sets them apart from others. The hallmark of many rape trials is that the jury have to decide between two contradictory accounts – complainant v defendant – with little or no supporting evidence on either side. Trials like that are not exclusive to cases of rape. With the prosecution having the burden of proving their case so that the jury are sure, the decision for the jury in any such case can be hard.

The prevalence of sexual offending is a great social evil, but the legal system and the alleged weakness of jury trials in particular can’t be held responsible for men committing rape, any more than they can for the upsurge in knife crime or burglary. Myths still abound about disrespectful treatment of women complainants by the police and in Court. Police officers, prosecutors and judges receive specialist training in sex offence work; abusive cross-examination by defenders is rare and judges do not tolerate it. That may not make the prospect of reporting a rape to the police and following it through to trial much less daunting, but perpetuating myths may contribute to the ‘attrition rate’. We can surely improve the support given to victims of sexual abuse, but changing the rules is not the way forward.

 

A Hero of our Times?

It’s not every day that one’s client is a legendary figure – as mine was, in the shape of Vladimir Bukovsky. It turned out that he was far too ill to be tried on the charges that he faced, of having indecent images of children, which he denied. At 75, his body was giving out, and the Judge at Cambridge Crown Court found his cluster of illnesses meant he could not effectively participate in the trial, even via a videolink from his home. The prosecution was stayed and remains in suspense until, perhaps, he is well enough again. This was a man who took on the Soviet state as a boy – he was expelled from school and then from university in 1961 for ‘lacking the character of a Soviet citizen’, and he spent the next 12 years in and out of prisons, labour camps and psychiatric wards – for the offence of ‘hooliganism’ – or as we would say, for telling the truth about the state’s systematic abuse of human rights. In 1971 he smuggled documents out of Russia that showed how political prisoners were treated as insane – and was promptly locked up again.  Recognised by now across the world as a prisoner of conscience, in 1973 he won his freedom, albeit in exile, by being exchanged like Cold War chess pieces for the leader of the Chilean Communist Party, Luis Corvalan, whom the Pinochet regime had imprisoned after the military coup. Bukovsky settled in the UK, and became a figurehead for the pro-democracy Russian diaspora all over the world. The Yeltsin government eventually restored his citizenship that the Soviets had removed, but Putin stripped him of it again when he had the temerity to stand against him in the 2008 presidential election. A man of extraordinary courage, but what a dismal last chapter to a heroic life.

John Plumstead

Yesterday I attended the memorial service at the Temple Church for His Honour Judge Plumstead, who died aged 64 in September. The church was packed: family, friends, colleagues from Bench and Bar, and members of the Court staff at St Albans, where he sat. The service was both grand and intimate, with personal reminiscences, a poem read by his daughter, hymns for the congregation and pieces for the superb Temple choir, and the stirring words of comfort that the Church is so good at providing on occasions like this. John Plumstead was a rarity among judges – many are respected, some are liked, but almost none are loved. He was.

Are Juries Unfit to Try Rape Cases?

Julie Bindel (Guardian 12 August 2016) thinks it’s wrong for juries to try rape cases because they lack expertise and don’t find enough defendants guilty. If lack of specialist expertise barred randomly selected members of the public from being jurors, there would not be many jury trials left. Citizens, in committees of 12, are remarkably good at dealing with complex cases of all kinds, and at doing justice. Judges generally agree. Trial by one’s peers is not something to toss away lightly on the basis of stereotypes and misconceptions. Working out who is telling the truth is not a matter for experts in any type of criminal case. Our fellow citizens are good at it, whichever segment of society they come from. Yes, they can sometimes produce results that the powerful dislike: stand up Clive Ponting. It’s sad that a brave campaigner for the powerless like Julie Bindel comes out with the same sort of thing. Juries have far more legitimacy in trying serious crime than a case-hardened panel of ‘experts’ ever would.

In rape cases juries are not less likely to convict: according to Professor Cheryl Thomas’s 201o study ‘Are Juries Fair?’ (answer: yes), in the 2-year period she studied juries, they convicted more readily in rape trials than in comparable cases of serious violence, at 55%. In the larger Court centres across England and Wales, the overall conviction rate ranged from 69% to 53%. The reasons for the differential were unclear but may be due to uneven distribution of different kinds of cases between the Courts. So rape convictions are not out of line with the general pattern.

Very few rapes are stranger rapes; in many cases, the accused and the accuser know one another and are the only significant witnesses. Where the issue is consent, the fact that ‘penetration’ has occurred is admitted and needs no scientific proof. The jury invariably decide the case by weighing one person’s word against another. That is seldom an easy task, in Court or outside, when judging an accusation of rape or anything else. The law demands –rightly – that no one may be convicted of an offence unless the jury are sure of guilt. They may think the evidence proves the accused is probably or possibly guilty – there may be strong suspicions – but still not enough to get over the line into being sure. That high standard protects the innocent from false or mistaken accusations – a protection of great value for which we should all be thankful.

Juries in rapes now receive explicit legal directions from the judge that are designed to dispel myths about complaints of rape. There are statutory restrictions on evidence about an accuser’s ‘sexual history’, which are rigorously applied. Juries hear about it only if it would cause serious unfairness to the defence if it was withheld. Judges have to strike a balance.

Prosecutors and Judges have specialist training before they can take on rape and serious sexual offence cases. Prosecutors are required to inform witnesses of the type of questioning they may face from the defence. In cases involving vulnerable witnesses, the Judge now receives the questions to be asked in cross-examination in advance, and may disallow inappropriate ones.

We could do more. A compulsory programme of vulnerable witness training for all advocates is coming. We could make the Court experience better for witnesses– by for example restoring the canteens that went in a recent mean-spirited round of cuts, so people at least can get a cup of tea while waiting. The MOJ could see to it that trials come on quicker.

What Julie Bindel proposes is to strip away a vital civil liberty because she thinks too many guilty men walk free. Perhaps some do: it may be a high price for our freedom, but it’s still worth paying.

Conspicuous Sumption

On 20th November 2013 Lord Sumption of the UK Supreme Court gave a lecture in Kuala Lumpur, entitled The Limits of the Law. It is well worth reading. The Supreme Court is rapidly developing into a full-scale constitutional court with enormous influence on life in the UK and in many other countries with a common-law tradition, including Malaysia, where its decisions command respect. When a member of that Court expounds his views about what Judges do and what they should be doing, anyone interested in law should pay close attention.

Sumption continues the theme of judicial parsimony he set out in his 2011 Mann Lecture, before his appointment to the Supreme Court. He believes that there is too much litigation in general, and in the field of public law and judicial review it has taken a wrong turning with excessive intervention in matters that are best left to others. ‘Parliamentary scrutiny’, he stated then, ‘is generally perfectly adequate for the purpose of protecting the public interest in the area of policy-making. It is also the only way of doing so that carries any democratic legitimacy.’ He envisages a clearly marked realm of policy into which judges must not trespass. Sir Stephen Sedley, whose absence from the Supreme Court is to be lamented, set about Sumption in the London Review of Books: also well worth reading. He criticised him for making assertions without evidence; misunderstanding the relationship between administration and judicial review in France, and misconstruing several major public law cases in the UK. Co-incidentally, one of the decisions that Sumption cited in 2011 in support of his view was the 1994 Pergau Dam case, which concern the construction of a dam in Malaysia: the Foreign Office wanted to use development funds for the dam, and would win export orders for British weapons in return. The High Court held that this use of the funds was outside its powers under the relevant statute, and was therefore unlawful. According to Sumption, this was an improper incursion into matters of policy; in Sedley’s view, it was the Court doing its proper job of construing a statute. (The Foreign Office chose not to appeal.)

In the Kuala Lumpur lecture, Sumption (wisely, no doubt) refrains from mentioning Pergau, but he repeats the French canard that occasioned the Sedleyan put-down, while maintaining the 2011 thesis. He now turns his big guns on the European Court of Human Rights for making a land-grab over matters far beyond the contemplation of the authors of the European Convention of Human Rights & Fundamental Freedoms, thereby upsetting the constitutional balance between Courts, Parliaments, and Executives in member states – particularly the UK. He criticises the Strasbourg doctrine of the ECHR as a ‘living instrument’:

…the Strasbourg court develops the Convention by a process of extrapolation or analogy, so as to reflect its own view of what rights are required in a modern democracy. This approach has transformed the Convention from the safeguard against despotism which was intended by its draftsmen, into a template for many aspects of the domestic legal order. It has involved the recognition of a large number of new rights which are not expressly to be found in the language of the treaty.

It is questionable whether the draftsmen intended their Convention to be treated like holy writ, frozen in time in 1950; but even if they did, Sumption gives no legal reason for later generations of judges to refuse to adapt its terms to changing circumstances. He skates over the important distinction between individual judgments, which may be questionable, and the principle of adaptability, which no one would question in relation to a domestic statute. For example, it would be absurd for me to defend a charge of ‘wanton and furious driving’ under s.35 of the Offences Against the Person Act 1861 (still in force) on the basis that I was driving a car, when the statute was intended for horse-drawn vehicles before cars existed. The provision is alive enough to apply to things ‘not expressly to be found in the language of’ the statute. The debate is as arid as that between American ‘originalists’ and their opponents over how to interpret the US constitution. The disagreement there, though couched in the language of law, masks the real, political dispute between conservatives and liberals within the judiciary, and beyond.

When Sumption says that Strasbourg acts ‘to reflect its own view of what rights are required in a modern democracy’, he insinuates that the judges are imposing their own views ex cathedra or from under the palm tree. In fact, the typical judgment will resemble that of a UK Court, by looking for authority for its reasoning in national law, European law, international treaties, and the previous decisions of national Courts as well as its own. A good example is Maslov v Austria, a leading case concerning the rights of a criminal facing deportation. The Court cited Austrian statutes, Recommendations of the Committee of Ministers of the Council of Europe, the UN Convention on the Rights of the Child (incorporated into Austrian law), EU Council Directive 2003/109/EC, decisions by the European Court, and decisions of its own. It then gave a reasoned judgment, based on these materials, on the criteria that national authorities should use when weighing up considerations for and against deportation, within the framework of Article 8 of the Convention. There is no hint of the palm tree.

Article 8, in Sumption’s view, is particularly problematic. He claims that it has been enlarged by Strasbourg in to include deportation among many other things, which are not ‘warranted by the express language of the Convention, nor in most cases are they necessary implications. They are commonly extensions of the text which rest on the sole authority of the judges of the court.’ He seriously misdescribes what the Court did in Maslov and how it reached its conclusions. The Judges relied on authorities well beyond their own sole authority. They behaved like the Supreme Court itself when it interprets relevant statutes and cases in order to reach its conclusions – which may change the law in an unforeseen way.

The only concrete example of this deplorable practice that Sumption gave in Kuala Lumpur is the prisoner voting-rights cases, Hirst v United Kingdom and Scoppola v Italy, neither of which relied on Article 8, but were brought under Article 3 of the 1st Protocol of the ECHR, (the right to free elections). In Hirst, the Court held by a majority that the UK’s blanket ban on all prisoners voting in elections was unlawful. It called on the UK to refine the ban. It reached its decision by reference to the Convention and an array of European, Canadian, and South African materials. Its process, as in Maslov, was readily recognisable to a common lawyer who demands authority and precedent for propositions of law. Now, whether the Court got it right is an open question; the fact that there were dissenting judgments indicates that the issues were unusually difficult to resolve. Sumption not only thinks the Court got it wrong, but they should never have considered the matter at all. But if legal instruments such as conventions and treaties incorporated into national law make a question justiciable, then a person cannot be blamed for asking the Courts to decide the question, and the Courts cannot be blamed for making decisions.

Sumption takes his complaint further: not only should Strasbourg not consider such matters, but in ruling on them it engenders a ‘democratic deficit’:

The treatment of the Convention by the European Court of Human Rights as a “living instrument” allows it to make new law in respects which are not foreshadowed by the language of the Convention and which Parliament would not necessarily have anticipated when it passed the Act. It is in practice incapable of being reversed by legislation, short of withdrawing from the Convention altogether. In reality, therefore, the Human Rights Act involves the transfer of part of an essentially legislative power to another body.

This is opaque. When Parliament passed the Human Rights Act it knew that Strasbourg treated the Convention as a living instrument; it could therefore have predicted that the law would continue to develop, as it had done before the Act. Parliament’s crystal ball was no better or worse than anyone else’s, even if its powers of scrutiny are ‘perfectly adequate. So no surprises there. Section 3(1) of the Act provides:

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights (emphasis added).

That, I suggest, is a fairly modest aim. If a nation’s Parliament adopts a set of human rights principles on behalf of its citizens (which even the extra-judicial Sumption admits to finding ‘wholly admirable’), the least it can do it tell itself to stick to them ‘so far as it is possible to do so’. It did not sign up to them exactly as Strasbourg found them to be in October 2000, frozen in time forever, but as they continued to evolve in changing circumstances. Far from transferring its proper legislative function to ‘another body’, Parliament ‘brought rights home’, in the phrase in use at the time.

The Strasbourg judges are neither poets nor unacknowledged legislators of any kind. They examine the lawfulness of actions by States, according to principles that the States (some more democratic than others) have adopted. States normally win. Some people think the Court is too deferential to States. If a State withdrew from the Convention in order to be relieved from compliance with Strasbourg, it could appoint its own Human Rights Court to make rulings on the Convention, which it could call its Supreme Court. If the rulings of that Court were subject to reversal by Act of Parliament – a practice to which Sumption refers in relation to non-human-rights cases – then what status would human rights decisions, and the rights themselves, have? Much reduced. They would be temporary, provisional, precarious. Under a British Bill of Rights, Lord Sumption and his colleagues might make a human rights decision that the government disliked, and Parliament could then reverse it by legislation. If by some constitutional wizardry that was made impossible, people would make the same complaints about our Supreme Court as they now do about Strasbourg – unless the members of that Court all adhered to the self-denying, Sumption doctrine. Our Supreme Court would probably look more like the US version, complete with its own version of fights about ‘originalism’, but without the sacred text of their Constitution to guide all the branches of government. How much of an advance would that be?

Cruel Britannia by Ian Cobain

Anyone wanting an outline of the bi-polar disorder that affects official thinking about torture in particular and human rights in general should read Ian Cobain’s Cruel Britannia (Portobello Books, November 2012), and cross-refer to Lord Bingham’s The Rule of Law (Penguin 2005).

Kenneth Clarke, the last Minister of Justice, is still pushing the Security & Justice Bill. So far, he has failed to persuade Parliament that secret trials, in which the government alone get to decide what evidence should be made public, are a good idea. The spy services want their dark deeds kept dark. They dread being challenged with accusations of criminal or civil liability. Even if the government retreat a little on the Bill, there is likely to be more not less secrecy in legal proceedings that are deemed sensitive. Clarke’s successor, Chris Grayling, thinks the UK should seriously contemplate withdrawing altogether from the European Convention of Human Rights.

The idea that citizens have human rights that they can assert against public authorities in Court is, bizarrely, regarded as something foreign and disreputable. Very few politicians have stood up to defend the Human Rights Act, whose main objective was to allow UK citizens to use UK Courts to assert rights they had anyway, rather than go to Strasbourg. Now the heat is also on Judicial Review, the precious and entirely home-grown legal challenge to administrative decisions – not on their merits, but on the narrower basis that the decision-makers have failed to follow proper and lawful procedures. All the while, the continuing assault on legal aid denies poor citizens access to the law, which has grown into a forest of rules and regulations in so many areas that touch our lives, so that anyone entering it without expert guidance should abandon all hope.

In all these policies, and especially in the doublethink around torture, we can see what the late Bernard Williams condemned as ‘Government House utilitarianism’ in action. He used the term to characterise an account of morality given by the nineteenth philosopher Henry Sidgwick in his The Method Of Ethics. Sidgwick asked  ‘whether exceptions should be permitted from ordinary rules on Utilitarian principles’. He thought society was made up of ‘enlightened utilitarians’, an elite minority, who could live good lives by ‘refined and complicated’ rules with numerous exceptions; and everyone else, for whom this more sophisticated system ‘would be dangerous’. He said that

‘… on Utilitarian principles, it may be right to do and privately recommend, under certain circumstances, what it would not be right to advocate openly; it may be right to teach openly to one set of persons what it would be wrong to teach to others; it may be conceivably right to do, if it can be done with comparative secrecy, what it would be wrong to do in the face of the world; and even, if perfect secrecy can be reasonably expected, what it would be wrong to recommend by private advice and example.’

Williams saw this as little more than organised hypocrisy, practised brutally by the British colonial elite in the Empire, for their own advantage.

Ian Cobain in Cruel Britannia shows that the British Government operated a policy of torture on its German enemies during and after World War II, and later in the colonial wars that ended the Empire in Cyprus, Palestine, Kenya, Malaya, Aden, and in Northern Ireland; and then in Iraq, and at arm’s length (but nonetheless) in the Americans’ so-called war on terror, with connivance at kidnapping for trial in the USA (euphemised to ‘rendition’) and the shipping of detainees for interrogation by the torture squads of numerous unsavoury regimes around the world (‘extraordinary rendition’). With forensic skills of a high order, through official records and by talking to witnesses and survivors, Cobain has traced the genealogy of torture methods, and of the men who twisted the minds and bodies of their prisoners, from 1945 to the present. The same methods of torture, and the same men and their pupils, reappear over and over again, in every location where Britain has used torture. The tortured had minimal redress. Government House routinely lied and destroyed evidence. It took 50 years for the Foreign Office to discover an archive from Kenya which they foolishly forgot they had (or they would surely have destroyed it too), and it took a Court order for them to disclose it to the elderly men and women whom British officials had starved, castrated, raped, and tortured in other ways that would have charmed the SS. Cobain’s account is not ancient history. We do not know what the Government gets up to in secret now, and lies about – in the name of its own utilitarian morality: the rest of us are not to be trusted with the truth about its view of right and wrong, and where its and our interests lie. We are to be discouraged from finding out.

I want it to be normal for Ministers and the people who work for them to be held to account, not just every few years at elections, but while they are in power. I don’t want to rely only on the brilliance of an Ian Cobain to tell me what has been done in my name. Government should operate on the basis that I and everyone else can readily assert our rights not to be tortured or subjected to inhuman or degrading treatment or punishment (Article 3 of the European Convention of Human Rights); not to be killed (Article 2); to have a family and private life that is not interfered with for no very good reason (Article 8); to express myself freely (Article 10); to practise my religion (Article 11); not to be locked up without due process of law (Article 5); to have a fair trial (Article 6). Having rights protected by law is a modest demand and, sadly, a modest protection against the State’s desire to get its own way at any price. But at least it is better than not having rights.

English law regards torture as ‘an unqualified evil’: so said Lord Brown in the famous 2005 case A and others v Secretary of State for the Home Department (No 2). But he was not immune from the bi-polarity which afflicts the subject. He said that the executive:

…has a prime responsibility to safeguard the security of the state and would be failing in its duty if it ignores whatever it may learn or fails to follow it up. Of course it must do nothing to promote torture. It must not enlist torturers to its aid (rendition being perhaps the most extreme example of this). But nor need it sever relations even with those states whose interrogation practices are of most concern. (emphasis added)

 Even Lord Bingham saw a distinction between the use in Court of evidence obtained by torture (never), and its value for intelligence purposes (as ‘duty’ required). In the same case, he said:

 I am prepared to accept…that the Secretary of State does not act unlawfully if he certifies, arrests, searches and detains on the strength of what I shall for convenience call foreign torture evidence. But by the same token it is, in my view, questionable whether he would act unlawfully if he based similar action on intelligence obtained by officially-authorised British torture. If under such torture a man revealed the whereabouts of a bomb in the Houses of Parliament, the authorities could remove the bomb and, if possible, arrest the terrorist who planted it. There would be a flagrant breach of article 3 for which the United Kingdom would be answerable, but no breach of article 5(4) or 6.

So even the most forceful contemporary defender of Rule of Law principles found that the fruits of torture have a lawful use, even if torture itself must be condemned. Banning torture-evidence in Court – where the public would find out – and the approval of its use for intelligence purposes – in secret – must have given the torturers and their masters in Government House great comfort. The proposed limitations on our ability to use the law to uncover secret wrongdoing mean that Ian Cobain’s book is likely to need regular updating.