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Secret trials and the police state

There are a few things that suggest a country is heading toward a police state, such as the introduction of obligatory ID cards, monitoring of citizens behaviour and movements and taking justice from the public view into a secret world.

How are we doing?  On ID cards we don't have them thanks to some serious criticism despite concerted efforts by both Tory and Labour governments. 

On monitoring, the Sunday Times reported yesterday that Capita have created a database, called One, that contains lots of very personal information about 8 million British children, including addresses, photographs, school reports and some medical information.  Crapita make clear that there is no central database, each council has its own local database.  Crapita also sell software they call API, which allows police, medics, local authorities and quite a few other organisation.  But that's okay because Capita say very few organisations have bought the API software.

Also on monitoring, there is regular chatter from government about road tax, particularly the replacing of the current system with one that charges you per mile driven either through a hugely intrusive CCTV network that monitors your ever move or through the instillation of GPS equipment in all vehicles.

There are other examples, but this blog post is already a bit too long for comfort.

Finally, we move on to secret trials.  Why does it matter if trials are held in public?  In fact, wouldn't it be better if suspects identities were protected by holding all trials in private so that the innocent do not have their reputations tarnished?  Trials are held in public because where trials are held in secret there is a high risk that improper procedures will be used, inadmissible evidence will be heard and fairness will go out of the window.  It may not happen.  It's entirely possible that human nature would not assert itself as it always has done in the past when somebody is given wide ranging powers with little or no accountability. 

Trials are held in public so that the people can see what is happening and keep lawyers and judges in check!  

We already have secret trials in criminal law, the prosecution is allowed to call evidence that is never shown to the defence or the defendant.  It is even presented to the court in the defendants absence.  He has no opportunity to challenge the evidence either through cross-examination or by calling evidence to counter the secret evidence.  If that does not give rise to a serious risk of miscarriages of justice occurring then I don't know what does.  It's true that the defendant has a special advocate appointed who "represents" the defendant.  But, since he cannot discuss the evidence with the defendant and is appointed by the court not the defendant the special advocate can hardly be said to be ideally placed to act for the defendant and, to be blunt, I am not convinced that fulfilling such a role is ethically acceptable for a lawyer, but hey ho what do I know?

The latest calls for secret trials come from the beast that is Ken Clarke, Minister without Purpose, Point or Portfolio.  The new proposals cover civil proceedings and would allow the government to put secret evidence before the court, which cannot be challenged by the claimant.  Bear in mind that the people suing the government will be those who have been held unlawfully and against whom the government has already failed to prove its case beyond all reasonable doubt even with the secret trial procedure available in far too many cases.

It is important to look at the reasons Ken is putting forward for these secret trials, because they will change later on, just like the reasons for war with Iraq evolved over time when it became clear there were no weapons of mass destruction.

The main reason appears to be that secret trials are needed to avoid the government having to pay compensation.  He cites the case of the men who were released from Guantanmo Bay against whom no charges were brought by either US or UK authorities and who were held in captivity for many years and tortured.  Ken says the government couldn't defend their claims because the UK couldn't disclose secret evidence... although remember there is a criminal process they could have used to secure a conviction but chose not to, which says a lot about their evidence!

Robert Buckland (Conservative), a member of the Commons Justice Select Committee, says that secret trials are needed to prevent the flood gates being opened on "... a torrent of new claims."  This is serious, we can't have lots of victims of false imprisonment and torture all seeking redress against their abusers in legal proceedings now can we?  Obviously, terrorists know that the UK government is powerless to defend itself so there must already be a lot of cases in the pipeline?  Er... well there's 20.  Hardly flood gates time.

I don't like to accuse fellow lawyers of misleading anybody, but when Mr Buckland said, "Our enemies will begin to realise that our justice system is an open goal and come rushing with spurious claims knowing the Government will have to pay out", I can't think of what else he was doing.  Nothing prevents the government defending itself and if a claim is "spurious" then it's difficult to see why secret evidence would be necessary.  You might think secret evidence would only be necessary when claiming you were right to treat somebody in the way complained of.

Mr B goes on, "Even more serious, genuine claimants have no hope of getting their claims properly examined."  I must confess to not following his logic here.  As a judge, I assume Mr Buckland is aware that court rooms are not therapy rooms; they exist as a setting where disputes are settled.  If a claimant has a genuine case and the government accepts that then why would the government be going to trial?  They would simply admit liability, exactly as they do now.

You know you have a weak argument when you start saying "that's something Hitler would do", but Hitler did introduce secret trials for treason, which no doubt would cover much of the activities that fall under the modern definition of terrorism.

The reasons for the government now wanting trials held in secret are, to be blunt, weak and amount to little more than a government trying to escape liability for their own actions.

Do we live in a police state?  No.  But, government after government make efforts to monitor us more frequently, more intrusively and for weaker reasons.  They consistently move to limit access of the ordinary man on the Clapham omnibus to justice by making it harder to challenge them or by limiting access to funds, such as legal aid, that are necessary to allow legal actions to be brought.

20th century Germany before the Nazi's was unremarkable in terms of civil liberties.  I doubt many people could have foreseen what would happen in the middle 30's onwards.  I don't suggest that we are about to enter a full police state, but equally you cannot give today's politicians too much power over your life with little accountability because you never know what future political leaders will be like!


  1. Hi, a small point, API isn't the name of the application, an API is something else entirely (more or less a specification for how to code for a system) - See the page at for a far better explanation.


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