A swift and minor change…


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With a general election on the horizon, I think it may be a time for a swift and minor change in the law that creates a rebuttable presumption that everything a politician says or does in the next nine months is not to be taken seriously and  be dismissed as “electioneering” without any real basis or foundation or indeed conviction.

That being the case, the comments made by Boris Johnson in his Telegraph column recently should seen for what they actually are; an easy way to garner support as he positions himself for his comeback into mainstream politics and if we believe some, the start of his path to party leadership.   After all, having a national platform to promote your views and your position on issues of importance to your prospective electorate is a useful tool.

“The police can and do interview the returnees, but it is hard to press charges without evidence. The law needs a swift and minor change so that there is a “rebuttable presumption” that all those visiting war areas without notifying the authorities have done so for a terrorist purpose.”

That Mr Johnson believes a change in the law to remove the presumption of innocence until proven guilty for those who travel to “war zones” is a minor change, is not so much evidence of naïvety but simply a way of selling it to those most likely to vote for him.   That the change can be sold to those who support him as a minor one is even more worrying, something that could be achieved with the minimum of fuss on a Thursday afternoon between debates on more pressing matters.

There are of course already some offences that carry a rebuttable presumption of guilt, carrying a knife in public requires the defendant to show that they had a good or lawful purpose, some offences under the Sexual Offences Act require a defendant to prove their innocence and not the prosecution to prove guilt.   These are clearly defined offences, and ones that the evidence supports.   Boris suggests that the problem with “jihadist tourism” is that whilst the police and other less obvious security forces can and do identify and arrest those who take part they find it difficult to prove the person has been involved in something because they lack the evidence.

The need to provide evidence is so very often that tricky little part of the judicial process that gets in the way of the conviction.  How much easier it would be if the actual requirement to provide testable evidence could be dispensed with.  Whilst we are at it, lets set up a secret court and lets not show the defendants the evidence we have.   Why stop with the terrorist cases, lets make justice simple, let us totally cut the cost of implementing justice.  You are guilty of every offence unless you can prove otherwise.  No need for the cost of obtaining evidence, no need to comply with any of the procedural rules, the CPS need not worry about complying with case management (although I am not entirely sure they do now) as there will be nothing they need to serve, the cuts to legal aid means most people could not afford a lawyer and would be more likely to simply roll over and accept their fate.

To an extent Boris is right, it would be a matter of a minor change to the relevant legislation that would make “travelling to a war zone” an offence you were guilty of unless you could prove that their travel was for a legitimate purpose.   The devil as they say is always in the detail and a matter of interpretation.   So what amounts to a war zone and what amounts to legitimate purpose?   Large parts of the countries mentioned in the article are peaceful, large numbers of people travel everyday to those countries should everyone have to declare their intention to travel, should everyone need to account for why they go there.   What if I went to Turkey for a holiday in the sun do I have to declare that as it shares a border with Syria, what is to stop me from popping across and potentially providing aid to a fundamentalist.   What if I went to America?  Although not currently “at war” with anyone on a declared basis, few people would say that they are not at war with very many countries at this time.   Am I travelling for a terrorist purpose if I pop over to Times Square to soak up the atmosphere but haven’t told anyone.   The evidence of my crime is the travel regardless of my intention.

The presumption of innocence is a fundamental of the justice system, one that underpins the court process.  One that takes time, skill and a little something called evidence to disprove.   It is however one that is being slowly eroded in courts up and down the country, and across the front pages of newspapers, in rolling news headlines every hour on the hour.

Look at the way in which the recent search of Cliff Richards home in Berkshire made the news, a man’s house has been searched for evidence of an offence that took place thirty years ago, before the age of the internet, mobile phone or him even owning the property.   Plus he is a man that has never been married, refuses to confirm or deny his sexuality and look here he is in a publicity photo with Jimmy Saville on Top of the Pops many, many years ago.  Clearly he is a man that we should be suspicious of and has probably done something unlawful, it’s up to him now to prove that he hasn’t done anything wrong.   As another example, ask Christopher Jeffries whether he believes in the presumption of innocent until proven guilty and whether he felt that the press understood what it actually means.

There are already processes inbuilt into the court system that seek to take away the presumption.   Anybody that plies their trade in the local courts can tell you of cases that are perhaps evidentially light but the CPS sought to bolster by the introduction of bad character evidence.   The fact that they have committed similar offences in the past and therefore by implication must be guilty of this one.

The use of the Bail Act to remand defendants to court by the police, the remanding of defendants to prison awaiting trial, the continued use of conditional bail often with punitive conditions whilst enquiries are conducted, sometimes for months, and then the case going no further are all attacks on the presumption of innocence.

I’m not a naive liberal and don’t live in a crime-free bubble, I understand the need for bail conditions and remand provisions, for the need to convict the guilty but if these provisions were to be imposed as a blanket policy I think we might all be sitting up and wondering how did we get here.  The corollary of convicting the guilty is ensuring that the innocent are acquitted.      The process in which we do that has been developed and refined over many years based on the fundamental principle of innocent until proven guilty.   It may be expedient to remove that when we don’t like it, it does mean it’s right.

A swift and minor change in the law that makes travel to Iraq or Syria without good reason and without notifying the authorities a terrorist offence is simply too simplistic and an attack on the liberties and freedoms that we abhor when they happen to others.   It is as Downing Street have said in the last twenty four hours a knee-jerk reaction and there is apparently no place for knee-jerk legislation in this Government.  The whole raison d’être of terrorism is for us to fear those amongst us, for us to strip back our rights and freedoms to the point that they no longer exist and we capitulate to the demands of the terrorists.   By taking away the presumption of innocence, no matter how small and limited that change might be is for me a sign that we have started to capitulate.

Atrocities committed in the name of religion, politics, ideology or ambition must be challenged; must be stood up to and must be stopped no matter who commits them or where they are committed.   To stop them without relinquishing the principles we stand for is surely the only way to do it properly.

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Author: crimsolicitor

I am a Criminal Defence Lawyer, committed to providing the best defence I can for those who need it, regardless of their ability to pay...

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