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Security and Rights

23/01/2007

The Director of Public Prosecutions gave a major speech on 'Security and Rights' to the Criminal Bar Association on 23rd January 2007. Full text attached.


Introduction

It seems to me that this key place, where the rights of these two groups bisect, is a touchstone for the quality of criminal justice and its moral heart.

And this is particularly critical, particularly stark, in cases involving allegations of terrorist activity, where the victim may not be simply private- but also in a real sense public.

Where the victim is, and is intended to be, the community as a whole. All of us and all of our institutions.

It is often said, isn't it, that the pendulum has swung too far in favour of defendants. Too many due process restraints are Victorian in culture. They are no longer relevant.

They are too restrictive and hamper the search for justice. Much is made of the revived jurisdiction on abuse of process and some of its wilder manifestations.

Obviously the prosecuting authority finds itself at the heart of this debate. That is as it should be and I welcome our being there.

Of course we have our own view of the appropriate balance between defendants and the victims of crime in a criminal trial. Just as we have our view of the appropriate relationship between the State and those against whom it determines to apply punitive criminal sanctions.

And we understand, as do all criminal lawyers, that in no place is this relationship more sensitive than in cases where it is alleged the defendants have set out to attack the State itself.

Often hoping to destroy its values and its institutions by deliberately targeting its most vulnerable members.

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What is the nature of the terrorist threat?

Of course criminal lawyers need to start by being clear that the threat posed by terrorism is real and serious. We know that British terrorists are operating here in our own country.

We also know that there are British people living amongst us who are sympathetic to terrorist causes. London experienced the direct result of all this on 7 July 2005.

It is also necessary to be clear that the precise category of threat which we face is actually new. Of course terrorism isn't a new phenomenon. But this form is a little different.

These people will use indiscriminate violence. They seek, as a tactic, mass civilian casualties, of the most vulnerable people they can find. The more vulnerable the better.

They target individuals, institutions, communities and nations, trying to set people against each other. This is all calculated and deliberate. It can also, if we are not careful, be strikingly successful.

We can contrast this with the threat once posed by the IRA. I represented many of those men. They were members of an established and highly disciplined organisation with clearly targeted enemies. They were ruthless and murderous. They didn't mind killing people. But they were somewhat mindful of PR.

The current threat comes from unaffiliated, loose-knit networks of individuals with a much broader agenda. They think they're having a conversation with God. Killing is an end in itself.

All the disturbing elements of a death cult psychology are present. This seems to me to be intrinsically more dangerous than what we faced previously.

And it is a threat with global dimensions. It is no longer purely a domestic problem. Its causes are no longer restricted to one State. This means those causes may be a long way beyond our control. We may be dependent on the whims of foreign electorates.

But I also believe it is critical that we understand that this new form of terrorism carries another more subtle, perhaps equally pernicious risk.

Because it might encourage a fear-driven and inappropriate response. By that I mean it can tempt us to abandon our values. I think it important to understand that this is one of its primary purposes. Understanding this will help us to resist the dangerous temptation to succumb.

As will a determination to judge the threat itself with care. Not to underestimate it, obviously. Only a fool would do that. But to judge it with great care.

So everyone here will come to their own conclusion about whether, in the striking Strasbourg phrase, the very 'life of the nation' is presently endangered. And everyone here will equally understand the risk to our Constitution if we decide that it is, when it is not.

Of course we must accept that politically or religiously motivated terror does pose huge dangers, huge public challenges. And that the criminal law must adapt to meet them. That is only reasonable.

Terrorism is designed to put pressure on some of our most cherished beliefs and institutions. So it demands a proactive and comprehensive response on the part of law enforcement agencies. But this should be a response whose fundamental effect is to protect those beliefs and institutions. Not to undermine them.

So, although a development in the role of the security services and the police is essential and desirable in this context, I believe an abandonment of Article 6 fair trial protections in the face of terrorism would represent an abject surrender to nihilism. It would represent defeat.

And that is the point I want to emphasise this evening. Our criminal justice response to terrorism must be proportionate and grounded in due process and the rule of law.

We must protect ourselves from these atrocious crimes without abandoning our traditions of freedom.

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How has the threat been addressed so far?

I think the rhetoric around the 'War on Terror' illustrates the risks nicely.

London is not a battlefield. Those innocents who were murdered on 7 July 2005 were not victims of war. And the men who killed them were not, as in their vanity they claimed on their ludicrous videos, 'soldiers'. They were deluded, narcissistic inadequates. They were criminals. They were fantasists.

We need to be very clear about this. On the streets of London, there is no such thing as a 'war on terror', just as there can be no such thing as a 'war on drugs'.

The fight against terrorism on the streets of Britain is not a war. It is the prevention of crime, the enforcement of our laws and the winning of justice for those damaged by their infringement.

Acts of unlawful violence are proscribed by the criminal law. They are criminal offences. We should hold it as an article of faith that crimes of terrorism are dealt with by criminal justice.

And we should start by acknowledging the view that a culture of legislative restraint in the area of terrorist crime is central to the existence of an efficient and human rights compatible process.

We wouldn't get far in promoting a civilising culture of respect for rights amongst and between citizens if we set about undermining fair trials in the simple pursuit of greater numbers of inevitably less safe convictions.

On the contrary, it is obvious that the process of winning convictions ought to be in keeping with a consensual rule of law and not detached from it. Otherwise we sacrifice fundamental values critical to the maintenance of the rule of law- upon which everything else depends.

Sometimes it is important to restate the obvious: the complexities of modern society are such that there is unlikely to be an end to the use of violence for political ends any time soon. Perhaps all we have at our disposal are different methods of managing this ugly phenomenon.

But it is self evident that the means we choose must be far-sighted. Because every time a conviction is achieved, it can only be sustained and built upon by ensuring that it is fair - and therefore safe from being overturned on appeal. Equally that it enjoys the widest public confidence. People must be able to trust the decisions of the Courts.

Ultimately, this means sustaining an approach to the prosecution of these crimes that is founded in reason and which welcomes the shield against injustice which due process rules provide. These are civilising qualities in the State and criminal lawyers should celebrate them. We should not be at all defensive about them.

A similar tone may be found in United States constitutional writing which emphasises that 'implicit in the provisions and tone of the constitution are the values of a more mature society, which relies on moral persuasion rather than force; on example rather than coercion'.

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The criminal law: an appropriate solution to terrorism?

So, how should the criminal justice system respond to the terrorist threat?

In answering this question, I want to deal with a number of issues:

First, the importance of the Human Rights Act 1998.

Secondly, the role of lawyers.

Thirdly, legislation and evidence.

And finally, community relations.

But more generally, I want to emphasise that we need to avoid a response to terrorism which is based only on fear and suspicion. This kind of climate has no room for the rule of law. Indeed it encourages the opposite.

Our institutions are strong. Our liberal values are intact. We continue to have a Constitution and laws which protect rather than oppress us.

And our enduring criminal law framework, underpinned by the European Convention on Human Rights, properly directs us towards justice and due process. Towards fair procedures and evidence-driven policing.

So in fighting terrorism, we shouldn't make exceptions to the rule of law; we should use the strength inherent within it.

Critical to this is that individual rights and national security are not seen as being mutually exclusive. This is not a zero-sum game. Improvements to national security do not have to come at the expense of rights. As the title of this lecture has it: security and rights. Not security or rights.

So what are the fundamental principles? What is the essence of fairness? I think we need to start with a clear understanding that certain principles are absolutely not negotiable, whatever the pressure.

It seems quite appropriate that as head of the prosecuting authority I should state these plainly and clearly, even though they are mainly obvious.

First, trials should be routinely open and reported before independent and impartial tribunals.

So we can't have secret courts, we can't have vetted judges, and we can't have secret justice.

This cuts both ways. Defendants have a fundamental right to transparency of proceedings. But the public also have a fundamental right to know. This is especially true in cases of terrorist crime, where rumour and unease are endemic and very dangerous.

In terrorist cases accurate information to the public is essential. It is reassuring. It is calming. It promotes safety.

So not only should courts be open. They should also be freely reported wherever possible, and unless the most exceptional circumstances arise.

In 2005, I signed a new protocol with media organisations governing the release to them of material relied upon in court. This protocol is intended to ease the flow of information and it is tangibly having that effect.

This is why, so often now, you see news reports accompanied by photographs, CCTV footage, videos, interview tapes and so on.

This flow of information is wholly desirable. It is educative. It provides public re-assurance. And it drives up confidence. Above all, it is right in principle.

That is why, in the same spirit, we, as public prosecutors, are talking more openly, more publicly about our work. This process, too, will increase very significantly in the coming period.

In high profile cases it will become routine for prosecutors to announce their charging decisions in public at press conferences. As Stephen O'Doherty did in the de Menezes case. As Sue Hemming did in the airline plot. And as Michael Crimp did in the Suffolk murders.

We are far more relaxed about providing briefings to the media in general. And we should be. We understand that it is of major importance to our work as public prosecutors that we are engaged in a conversation with the public.

That we are transparent and as open as possible. That we speak confidently. And, again, it is no surprise that we have pioneered this new approach in the area of terrorist crime.

Finally, in this same spirit I am ending the widespread practice of the Crown remaining neutral when defendants apply for reporting restrictions in trials. It should be rare indeed for the Crown to have no view on such an important issue.

And there will have to be a fully articulated and a compelling reason before in future we support the exceptional step of banning or restricting the reporting of criminal proceedings- particularly in cases in which the public has a strong interest. Terrorist cases are obviously prominent in this category.

In Barot, we joined with the media in opposing defence applications to restrict or ban outright the reporting of the sentencing hearing.

And, in the Court of Appeal, we joined with the BBC and the Times to get the partial ban, imposed at first instance, overturned by Lord Justice Judge. That is why the sentencing process was fully reported. And I am clear that the public were entitled to read every single word that was printed.

So - open justice wherever possible, is the first principle to retain.

Secondly, equality of arms - the right to call and cross-examine witnesses under equal conditions. Equal access to the court.

This is not negotiable. Fairness between prosecution and defence is an inalienable aspect of fair trial. A level playing field.

The third principle is closely linked to this. Defendants are entitled to know the case is against them. They must have full access to the State's case in all circumstances. Without that, there can be no fair trial.

And they are entitled to have any material in the State's possession which either undermines the prosecution's case or assists the defence case.

Fourthly, a protected right of appeal is not negotiable.

And finally, the most important of all: the presumption of innocence. The criminal standard of proof beyond reasonable doubt, with the burden resting squarely on the Crown's shoulders, cannot be compromised. It is not negotiable.

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The importance of the Human Rights Act 1998

So what of the Human Rights Act, which I've already mentioned? What is its place in all this? Does it represent a threat to our people's security, or does it signal the route to an appropriate response to the dangers we face?

It is worth recognising that in some countries around the world, post-9/11 rhetoric has encouraged knee-jerk legislation inconsistent with traditional rights. Indeed, in some jurisdictions, legislation which is even hostile to those rights.

But the freedom to speak honestly and the freedom to protest peacefully are crucial ingredients of British public life, guaranteed by Articles 10 and 11 of the European Convention on Human Rights.

We must hold onto these important aspects of our culture. If they are to be legitimately limited in any way, we must think very carefully about where the appropriate boundaries should lie.

The ECHR was largely drafted by English common lawyers. We should be proud of their work. They introduced many pre-existing common law principles of civilised jurisprudence into the European context.

Yet post 9/11, some of the values enshrined in the ECHR, some of those English common lawyers' standards, seem to be losing their status. As though some of the freedoms the convention speaks of are no longer quite so fundamental.

Some people around the world seem to think that they aren't as relevant in the current climate as they were in 1950. That the right to a fair trial, the right to freedom of expression, the right to privacy and the right to liberty can be compromised, even when the 'life of the nation' may not be at stake.

I believe this is mistaken. And one of the worst manifestations of this approach around the world has been the increasing resort to parallel jurisdictions. These exist in extradition and imprisonment.

Here, quite deliberately, standard protections are no longer available. Suspects are removed from the protections of criminal justice and placed, instead, in quasi-judicial or even non-judicial fora deliberately hostile to due process.

Our House of Lords in Abbasi aptly described detainees at the US base in Guantanamo Bay as being held in a 'legal black hole'. They seem to have been held there in a bid to keep them outside the comforting embrace of the US Constitution.

Those imprisoned are not quite lawful belligerents taking part in an armed conflict. So they aren't shielded by the Geneva Conventions.

But they aren't quite criminals in the conventional sense either, so they are denied due protection under the criminal law. They are in purgatory.

If, on one powerful analysis, this is an absolute negation of the rule of law- then surely it is the State itself, whose continued existence depends upon respect for that same rule of law, which is the first loser.

In contrast, our Human Rights Act, by incorporating the ECHR into our domestic law, enshrines all the common law criminal justice 'non-negotiables' I've just listed. Together they guarantee the right to a fair trial.

But it also enshrines others. The right to privacy. Freedom of expression. The right to liberty. The prohibition on torture. The right to life. These are all benchmarks of the rule of law.

So this legislation is monumental in promoting human rights principles in the UK. Of course it protects the vulnerable and marginalised in our society - those without the means of protecting themselves.

But this doesn't represent the whole picture. It is a mistake to focus only on protections afforded to defendants. This is the trick played by those who label it a 'charter for criminals'. Those who argue it is unable to address the threat posed by terrorists. Or even that it positively impedes the struggle against political violence.

Actually the Act addresses both national security and the individual rights of everyone involved in the criminal justice process, including witnesses. It also upholds community rights. Indeed it bears stark witness to the fact that security and rights go hand in hand.

For example, whilst it defines fair trial rights as absolute, as it should, it also provides that some other rights are not. States are permitted to limit certain rights, proportionately, to protect other competing rights. In times of genuine and pressing emergency, States may derogate altogether.

Of course Strasbourg jurisprudence makes it very clear that the principle of proportionality is of crucial importance. That the broadening of terrorism legislation places a great responsibility on States to respond in a proportionate and fair manner. Again, this is as it should be.

For example, we may limit the right to free speech. But only in circumstances where its exercise is apt to result in crime or disorder. We prosecute for incitement to racial hatred. But we do so only where the incitement is of a type likely to result in violence or fighting.

I have no doubt that the same would apply to incitement to religious hatred. Of course you can be critical and rude about religion. You can be very critical and very rude about particular religions. Some people may find that offensive. But who wants to live in a country where offensiveness is a crime?

But if your speech is such that it is likely to create a situation where people's personal safety is threatened - you can be arrested. This is a human rights balance and an entirely appropriate one.

So I believe that the Human Rights Act provides a particular service to the public interest because it simultaneously rewards the executive for human rights compatible conduct - and highlights any failings which may exist through identifying and marking abuses.

I believe it entrenches the essence of our common law freedoms, within the enduring context of the maintenance of the Queen's peace.

It is naive and ahistorical to believe that the adoption of increasingly sophisticated means of national and international policing and crime control, which is certainly necessary to meet terrorism, requires a corresponding dilution of Article 6 protections. In fact the reverse is true.

For example, the contribution of the Police and Criminal Evidence Act 1984 to improving the quality of policing, and therefore public and private security, whilst simultaneously protecting suspects' rights, is an excellent example of how due process itself supports the community's wholly legitimate interest in prosecuting more people fairly to safe convictions.

Even if it is true that victory against terrorism is unlikely ever to be final, the protection of fair trial rights, which is central to the legitimacy of all forms of social control, can always be achieved- given the political will.

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The role of lawyers

And what of the role of lawyers in this? What is their contribution to the protection of our constitution? A few weeks ago I spoke at an event at the Law Society in London. I found myself on a distinguished panel.

It included Mary MacAleese, a wonderful academic constitutional lawyer and President of Ireland, my old friend and colleague Conor Gearty Professor of Human Rights Law at the LSE, and Sir Geoffrey Bindman, senior partner of Bindmans, a firm I did much terrorism work for at the Bar.

The subject was, rather like this lecture's, protecting freedoms in the context of terrorism.

My distinguished co-panellists spoke before me. They spoke as well as you might imagine. They spoke of the importance of rights and fairness. Of the centrality of due process to public trust and confidence. Of the dangers implicit in watering down protections.

Then the Chairman, a former president of the Law Society, turned to me. 'Now for a different view', he said.

What a serious mis-reading of the role of prosecutors. What a lamentable and peculiarly English interpretation of our respective adversarial roles.

How depressing to have it imagined that because we may argue for different outcomes in any given cause, we have a different, a degraded relationship with justice.

The role of the prosecutor as human rights protector is more clearly understood in Canada. There prosecutors see one of their main roles in police stations as ensuring that Charter rights are observed in investigations. (The Charter is their version of our Human Rights Act.) They know that if these rights are not safeguarded, cases are doomed.

In the same way, English prosecutors are now routinely present in police stations advising the police during investigations.

In this way we are increasingly central to safeguarding the interests of the accused. Because we understand the principle just as our Canadian colleagues do.

We know that unfairness, oppression, cheating, breaches of the law, separately or together, can doom a case before it begins.

And we exercise control over legal compliance not simply through our advice. We exercise control because the decision about whether a charge will be brought is now ours and nobody else's.

We have become the gatekeepers. Cases will not proceed unless they get through a public prosecutor at the point of charge.

I have no doubt whatsoever that the involvement of public prosecutors from the earliest stages of an investigation, right through to the charging decision and beyond, far from being something to fear, will clearly and tangibly strengthen fairness and due process.

It makes it more likely that investigations will comply with the rules and that abuses of the process are avoided. Equally it will make it less likely that the State brings cases which shouldn't be brought and which are not justified by any sufficient evidence.

And I believe that in terrorism cases in particular, where there can be huge community sensitivities, this provides massive re-assurance.

It is no surprise that when the legislation for 28 days was getting bogged down in Parliament, a key concession made by the Government to the dissenters was that applications for periods above 12 days would have to be made by Prosecutors, not by the police.

It is the independence and the integrity of prosecutors, and especially their professional status as lawyers, which ensures that a proper and safe balance between competing interests is maintained.

In cases which can divide communities and bring about serious public disharmony or worse, this is a safeguard not to be undervalued or underestimated.

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Legislation and evidence

To be effective against terrorism, this most dangerous form of crime, we need to call on discrete legislation and appropriate rules of evidence.

Our legislation needs to be targeted, flexible and, as I have said, proportionate to the threat.

That's not always simple. Because anti-terrorist laws are by and large designed to prevent events before they occur. Most criminal law interventions assume the sequence of detection, detention and punishment after the crime has occurred.

But terrorism is different. Intervention needs to take place in advance. It's no good trying to arrest a suicide bomber after the event. The modern criminal law has urgently to respond to the threat of terrorist acts as well as to the acts themselves.

And this means that the very nature of the legislation is likely to be be innovative, intrusive and perhaps radical in concept. This causes nervousness.

But I don't think it should. As long as provisions are carefully drafted, as long as they are HRA compliant, we need not fear change and development in the criminal law.

Let me take as an example 28 days pre-charge detention. As enacted, this is a process which is entirely judicially supervised. After 12 days, supervised by a High Court Judge.

Extension hearings are adversarial and tough. We scrutinise the situation very carefully before we apply. And our reasoning is scrutinised very carefully by the Court. It is, I repeat, tough work.

But it is essential. We simply no longer live in a world where it is possible to come to charging decisions as quickly as in the past. In the airline case we had scores of computers to examine and literally tens of thousands of identities to investigate.

So the 28 day provision is an appropriate modernisation of the criminal law entirely within due process restraints. Openess, equality of arms and judicial supervision. I think it highly unlikely that Strasbourg will be troubled by it.

Similarly the offence of encouraging acts of terrorism is apposite. We face a serious issue of radicalisation in this country. This amounts to proselytising acts of terror, deliberately and carefully just short of actual incitement.

It is, if you like, a form of grooming. It is dangerous and it causes enormous public concern. And it has nothing to do with free speech.

We will select this offence carefully. And we will also balance carefully free speech rights as an important part of the process.

It's clear that some evidence should never be used in legal proceedings. Evidence obtained by torture, for example. I would never countenance the use of such material under any circumstances whatsoever. I profoundly disagree with Professor Alan Dershowitz that we can somehow 'civilise' torture evidence.

But other evidence, like intercept evidence, does not breach human rights principles and represents an important mechanism for preventing terrorism-related crime.

I think we need to find ways to remove the bar on the admissibility of intercept evidence. This would overcome one of the main obstacles to prosecuting terrorist suspects.

What more powerful evidence could a prosecutor have in court than the words of defendants condemning themselves from their own mouths?

Professor David Ormerod of Leeds University has rightly pointed out that there seems to be something illogical about the scheme under the Regulation of Investigatory Powers Act: It authorises an activity, recognises that that activity leads to material which is relevant at trial, and then suppresses that material and even the fact of its existence.

The rationale behind the historic bar on intercept evidence is the protection of the security services' sources and methods. It didn't grow out of a concern for the fairness of the trial process.

Of course I recognise that some interested parties have legitimate reservations about the use of intercept material in evidence. There is a concern that it might expose covert techniques and place heavy administrative burdens on the relevant authorities because of rules of disclosure.

These concerns need to be addressed. If we are going to reform the law in this country, we must do it in a way that doesn't place unreasonable burdens on our criminal justice and security agencies.

Legal safeguards are needed to ensure that UK security and intelligence agencies are protected and that the way they do their work is not compromised.

But I am confident that we can work towards a system that will allow intercept evidence to be used safely, efficiently and in the best interests of justice.

The key to the issue seems to lie in regulating the activity with sufficient stringency and clarity, whilst respecting fairness for all parties. Other common law jurisdictions have achieved this. I am sure we can learn from them.

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Community relations

Terrorist crime makes community relations one of our biggest challenges. Obviously one of its key strategies is to set people against each other. Indeed to make people hate and distrust each other as an article of religious faith.

We have a great responsibility to make sure that entire communities are not stigmatised by the law or by the general public. We certainly don't want to see any more incidents like the one last year.

Then, we witnessed British aeroplane passengers refusing to allow their flight to take off after overhearing two Asian men apparently speaking in Arabic.

It is absolutely essential that terrorism legislation is capable of upholding the law and securing public safety, without threatening different communities in a way that undermines their freedom. Without creating unjustifiable discrimination.

In my view this requires two things.

First, it means that we need to engage properly with victims and witnesses. Secondly, we need to improve public confidence in the way we deal with terrorist offences.

The CPS has achieved much in recent years to improve the treatment of victims and witnesses. We now have 165 Witness Care Units offering help and support to victims and witnesses across England and Wales.

We also have at our disposal broadening measures of protection for witnesses who take risks in giving evidence.

But Secondly, all agencies engaged in the criminal justice process need to turn their faces resolutely towards the public.

The public has a legitimate expectation that its proper concerns will be seriously addressed. And it is entirely appropriate that criminal justice is a significant part of public discourse.

There is a real danger of measures for combating terrorism-related offences being counterproductive. Compromising the integrity of the trial process would blight the criminal justice system for decades. It would severely undermine public confidence.

We should recall the impact the Birmingham Six case had on public confidence in the 1970s and 1980s. Nothing is more offensive to the Constitution of a country than men and women sitting for years in prison cells for offences they did not commit.

What better way could there be to create disillusionment and alienation? We don't want to alienate the very sections of the community whose close cooperation and consent is required to bring successful cases.

As prosecutors we are making a concerted effort to improve public confidence. Our broad community relationships are developing, as they should. We are tapping into the public's experiences to improve our performance.

And we are increasingly trying to make our services reflect the views and concerns of the people we serve.

In November we had our first ever national community engagement conference. There, we underlined our continuing commitment to building public confidence by explaining our decisions in an open and accessible manner. This needs to develop.

During the past year, members of our Counter Terrorism Division have travelled the country attending open meetings with Muslim community groups. We are developing links with people wherever we can.

Engaging with communities is becoming an integral part of our management, planning and strategic decision-making, as well as a part of front-line prosecutor activity.

We want to help people to know who we are and how we make our decisions. Information campaigns, consultation documents and media interviews mean that the public is increasingly aware of our work.

All of this is geared towards giving the public a voice in criminal justice. And we are proud of our progress in this area.

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Conclusion

So where does all this leave us as lawyers, as criminal lawyers? What is our specific response to the threats to our security, and the strains that those threats are putting on our Constitution?

For those of us who are lawyers, on whichever side, I think it is vital that we work to convince the public the importance of our traditional values of justice.

We need to reveal again their centrality to our way of life - especially in the face of terrorist threats. We need to preach more widely than to the converted.

We need, all of us, to be advocates for the view that human rights do matter. That far from undermining our national security, they are a critical part of it.

There is clear room for security and rights. And it is our duty, as lawyers, to protect both.

Ken Macdonald QC

Director of Public Prosecutions

January 2007

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