The Erosion of Civil Liberties Under Tony Blair

The government policy under Tony Blair has been one of relentless attack on our civil liberties; the expansion of new police powers, the introduction of new offences, and harsher penalties with longer custodial sentences – all of which has been matched by an increased weakening of the safeguards in the criminal justice process. While the government claims such changes are necessary to combat crime and increase the safety of innocent citizens, the reality is that the new rules appear to do nothing more than leave a dangerous amount of power in the hands of the organs of the executive. Combined with a lack of accountability and a rising hostility to judicial and legal supervision, the new system seems ripe for abuses and human rights violations.

The introduction of new powers for the police has been especially worrying. Following an exposure of serious police abuses in the 1970s and ’80s (racist behaviour, forced confessions, fabricated evidence, failure to disclose exculpatory evidence to the defence) , the government introduced The Police and Criminal Evidence Act in 1984 (PACE) to address some of the worst cases of malpractice and mistreatment of those arrested; the interrogation of suspects had to be conducted in a controlled environment of the police station and taped, the suspects had to be given access to legal counsel and advised of their rights. While these rules curbed some of the worst excesses, other reports have since indicated that not only are the police still institutionally racist (as found by the Macpherson Report 1999), they are also poorly trained and poorly funded (resulting in less thorough investigations), often incompetent, and occasionally corrupt . Yet instead of attempting to address these problems effectively, the current government has instead inexplicably chosen to present the same police force with more power and even less supervision, not only going back on some of the PACE reforms of 1984 but also opening up new areas of potential abuse.

Some of the new powers now enjoyed by police officers seem positively frightening, especially if one happens to belong to a visible minority group. The Criminal Justice Act introduced in January 2004 for example, now allows the police to bail suspects without even taking them to a police station, giving the officers a broad discretion as to which suspects should be treated in this manner. As Anthea Hucklesby points out, this “ill-thought out and misconceived” legislation allows the police to neatly get around the PACE guidelines; suspects can be stopped and searched, interrogated with no legal counsel present, their fingerprints can be collected, and then they can be bailed and released if there is not enough evidence to arrest them. Since the guidelines as to when the officers can use these new powers are sketchy at best, and there is little accountability foreseen, the potential for abuse is vast; using the new powers on primarily minority suspects, keeping people under surveillance when there is little evidence they have committed a crime, and potential for mistreatment during interrogation on the street. The Act also allows to take DNA samples from anyone who is arrested (and the list of arrestable offences was recently expanded greatly by the Crime and Disorder Act 1998, Criminal Justice and Police Act 2001, Police Reform Act 2002, and Criminal Justice Act 2003), and keep it on file indefinitely, even if that person is not charged with anything – there are currently no procedures for getting the police to surrender or destroy such a sample, raising serious privacy concerns.

It is no longer the case that only trained police officers can enjoy these extensive powers over their fellow citizens. Under the Police Reform Act 2002 (section 38, and schedule 4 part 1), police forces can now employ civilian “community support officers” and endow them with much of the same authority, including issuing fixed penalty notices for certain offences. Under the same legislation, civilian “detention officers” are allowed to exercise such powers as searching detained persons, and taking fingerprints, samples, and photographs of detained persons without their consent. Considering the studies which show that the police officers, who have been given special (if not necessarily sufficient) training for their vocation can be prone to abuse their power, is it really a good idea to contract out some of their authority to civilians with even less training, and even less motivation to obey the rules?

The police powers have also been extended to allow for greater control of behaviour which, while greatly disliked by most governments, is one that most democracies admit its citizens have the right to engage in – protesting. The Criminal Justice and Police Act 2001, section 42 creates a new police power in relation to harassing behaviour directed at a person in a “dwelling.” The police can issue a direction to a person outside, or in a vicinity of a dwelling, if the officer thinks that person is there to represent to someone on the premises that he should do or cease to do something that he is not required to. This has proven useful especially against animal rights protesters, whom the police would have no right to disperse otherwise while they were conducting a peaceful protest. The Protection from Harassment Act 1997, originally welcomed as the means to deal with stalkers, has also since been subverted to suppress animal rights activists.

Another worrying development is the creation of the so-called “anti-social behaviour orders,” first brought into being by the Crime and Disorder Act 1998, section 1, and elaborated upon in the Anti-Social Behaviour Act 2003. The “anti-social behaviour” is a vague term, commonly assumed to apply to the problem of “bad neighbours;” noisy premises, noisy groups, litter, truancy from school, graffiti, premises where drugs are used – a broad range of behaviours, which has no clear definition. To deal with such behaviours, a civil preventative order can be issued by a magistrate prohibiting the behaviour in question. Normally, such a preventative order, if breached, amounts to a contempt of court and is dealt with accordingly. However, under this new legislation, a breach of an anti-social behaviour order is a criminal offence, punishable by a maximum of five years imprisonment. As Andrew Ashworth points out, this uncomfortable mixture of civil and criminal legal techniques is questionable at best; the decision to issue a preventative order is a civil matter, and thus subject to civil proceedings which have less stringent requirements of proof, and more relaxed rules about hearsay. The police or a local authority would be able to obtain such an order based on second-hand evidence that a person has caused or is likely to cause harassment, alarm or distress, and it can be obtained against children as young as ten. And yet, the breach of an order constitutes a criminal offence, punished as if the proceedings had been criminal and conducted up to a criminal standard. The question of sentencing also arises – an offender is convicted when he breaches the order by exhibiting the prohibited behaviour, but he is sentenced for a “pattern of behaviour” – a series of incidents, each of which need not be proven separately. In effect, we are sentencing people for offences neither admitted to nor proven in court. Ashworth concludes that the policies used to deal with anti-social behaviour are “incoherent, potentially oppressive, and contrary to both the spirit and the letter of the European Convention on Human Rights.”

But the award for the most oppressive pieces of legislation introduced by this government so far must surely go to the Terrorism Act 2000 and the Anti-Terrorism Crime and Security Act 2001. The Terrorism Act, although it received a statement of compatibility with the Human Rights Act, extends the police stop and search powers in a very questionable way; under section 45, any person or vehicle can be searched for “articles of a kind which could be used in connection with terrorism” – a very broad definition, which could cover practically any object in common use. Under section 47, anyone refusing to co-operate will be guilty of a summary offence. The Anti-Terrorism Crime and Security Act allows, among other things, for the detention of foreign citizens without trial for an indefinite period of time, without necessarily informing them what they are being arrested for, and on whose information, so that they are unable to effectively challenge their detention. This constitutes such a serious violation of human rights that the passing of this Act required the government to derogate from the European Convention of Human Rights. Recently reviewed by the House of Lords in the case of A and others v Secretary of State for the Home Department (2004) UKHL 56, it was found by eight of the nine-member panel of judges to be discriminatory, disproportionate, and ineffective, violating our most basic rights and freedoms without sufficient cause.

At the same time that these new offences are created and police and detention powers greatly extended, the process of administering criminal justice is being undermined. Evidentiary rules have been significantly reduced under the Criminal Justice Act 2003 to allow prejudicial information to be presented to the jury, and hearsay evidence admitted. The jury trial itself – one of the foundations of our legal system – is under attack. Helen Kennedy, QC, an eminent criminal barrister, convincingly argues that one of the greatest strengths of the jury trial, the fact that juries are more interested in carrying out justice for the people involved rather than worrying about points of law, is precisely why the government is eager to get rid of it – what good is passing legislation, if the juries of this country refuse to enforce it when they see it is unjust? The Criminal Justice Act 2003 reduced our right to a jury trial, but failed to ensure (as the government wanted) that the defendants in serious cases would be able to surrender that right, thanks to the House of Lords which refused to pass it as it was originally introduced. However, the government is already proposing further limits. At the same time, legal aid is also being demolished, and in its place the government is proposing to institute a Public Defender office which would compose of government lawyers provided as counsel to the accused who have no means of affording private legal advice. The clear conflict of interest in the accused being supplied with a lawyer working for the same government that is prosecuting him seems to have escaped the government’s notice.

Is any of this really necessary? The government claims that the new rules are for the benefit of the society, and that they are there to stem the tide of crime we would be engulfed in otherwise. But despite such fear-mongering talk, there is actually very little evidence to back up these claims. On the contrary, Kennedy asserts that violent crime has been on a steady decrease all through the 1990s, and that any problems with the criminal justice system would have been better addressed by improving the enforcement of existing legislation. Rather than wasting the time and money spent in parliamentary debates to force through questionable legislation, the government would be better off providing proper training and funding to the police, and recruiting probation officers and social workers to deal more effectively with the causes of crime. Most lawyers and legal academics appear to concur; Andrew Ashworth criticized the government’s tendency to create new crimes without strong justification , while Brian Black concluded that the new legislation and the tougher custodial sentences so praised by the government were unnecessary and downright useless in reducing crime – “after all, who really wants to spend in excess of 25,000 pounds a year to teach someone to be a better criminal?” Our most eminent judges were also highly critical of the Blair government’s adventures in human rights violations; their judgments in A and others were positively scathing. They questioned the need for a derogation from the Convention on the grounds that not only no other European country decided to do so faced with the same threat, but also that the government failed to show the imminence and severity of the threat which would necessitate such a derogation. They derided the uselessness of a measure which, while detaining some suspects indefinitely as means of combating terrorism (on evidence too flimsy to present at trial), allows some of the other suspects to be deported to a country as close as France (so they can presumably plot our destruction in peace), and leaves others at large in Britain simply because they are citizens – if all of them are as dangerous as the government claims, the Lords rightly asked, why are only the select few foreigners arbitrarily locked up?

Unfortunately, the government is composed of politicians; and what politicians want most of all is to get re-elected. As long as the polls tell them that what the citizens are most concerned with is the level of crime, they will do their best to address that concern (however unwarranted) in a way calculated to win them the most votes. The legislation they introduce may be illogical, inefficient, and cause more harm than good, but as long as it results in their government being portrayed as “tough on crime” and “tough on terrorism,” they will continue to introduce it, caring little for any havoc they wreak on our civil liberties and legal processes. The current government, in its search for a good sound bite, continues to address complex problems like crime by offering “simplistic solutions which pander to the baying crowd,” as it steadily undermines our civil liberties and shows little regard for the concept of justice.

Bibliography:

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