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Last Updated: Tuesday, 9 August 2005, 12:22 GMT 13:22 UK
Terror threat forcing justice rethink
Jon Silverman
By Jon Silverman
Legal affairs analyst

Kamel Bourgass
Kamel Bourgass was convicted over a poison plot
The disclosure that the government is considering a radical new pre-trial process to play a key role in the prosecution of terrorist suspects highlights an uncomfortable truth.

This is that Britain's adversarial system of justice is considered by many politicians and perhaps the majority of senior police and security officials to be failing to meet the challenge posed by Islamic extremism.

The ricin trial which ended at the Old Bailey in April exemplifies the problem.

One man, Kamel Bourgass, was convicted of conspiring to cause a public nuisance. Eight others were cleared and a second trial abandoned.

Restrictions on evidence

For many anti-terrorist police, it was the restrictions imposed by the legal process - with some evidence ruled inadmissible - that presented the jury with a less clear-cut case than officers had hoped.

One of the thorniest issues in such prosecutions is surveillance, especially the product of phone taps.

If a way can be found to get this material into a trial without compromising sources and methods then it would probably result in more convictions.

Inquisitorial practices are at odds with the English legal process
The Home Office hopes to achieve this by placing a security-cleared judge in charge of the pre-trial procedure - but it presents a problem.

Home Secretary Charles Clarke sees merits in the French and Italian systems of powerful examining magistrates who play a robust role in the process of arrest and custody ahead of trial.

In Paris, Judge Jean-Louis Bruguiere is at the very centre of anti-terrorist investigations. But he has been attacked for draconian use of his powers.

And such inquisitorial practices are at odds with an English legal process which regards the police and the judiciary as exercising entirely separate functions, and the presumption of innocence as sacrosanct.

Sacred principles

Changes to the pre-trial process would also require a fundamental shift of the rules.

At present a suspect cannot be questioned after charge - hence the police's concern that, in terrorist cases, their hands are tied by the 14-day limit on questioning before charge or release.

Allowing a judge to determine how long the questioning and evidence-gathering should continue would certainly give the police more latitude.

But it would also place a severe strain on two long-established principles: that detention without charge is inimical to the rule of law and that a defendant has a right to know what case is being presented against them.

Though this principle has been circumscribed at hearings before the Special Immigration Appeals Commission (SIAC), it has not happened without controversy and the resignation of a number of security-cleared special advocates and one of SIAC's commissioners.


SEE ALSO:
Secret terror courts considered
09 Aug 05 |  UK Politics



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