“undermine the rule of law..”

The trial of the three men charged in connection with the murder of Robert McCartney ended on Friday when, after the three had declined to give evidence on their own behalves, Mr Justice Gillen told the court that he would provide a verdict “in the not too distant future.” The three men had also failed in their attempt to have the case against them thrown out when Mr Justice Gillen, despite referring to “three key errors” in witness C’s testimony, said that the evidence was “not so poor and unsupported that [he] could not conceivably convict on the strength of it”. Defence barristers also criticised the testimony of Ed Gowdy, claiming that his evidence had been “filtered through the prism of an IRA investigation” – the IRA statement on that investigation is here. That point was picked up on by Mr Justice Gillen, as reported today by Alan Murray.

Judge Gillen said that the matter of IRA discussions with Gowdy before he made a statement to the police must be taken into account in assessing his credibility. But the judge noted that that if visits by paramilitary organisations to witnesses were deemed to taint evidence from witnesses, so as to make such evidence unacceptable to the courts, that would provide a valuable weapon to such groups to undermine the rule of law — and would enable them to effectively sideline witnesses.

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  • USA

    According yesterdays BBC report,

    He also said the case was one where “inferences could properly be drawn” by the refusal of all three defendants to give evidence at the hearing.

    My gut reaction is that it is reprehensible for a judge to say something like that and in itself it totally undermines the judicial process. Has he never heard of the right to silence?
    Is he deliberately making elementary mistakes to set this thing up for a mistrial?
    I know you guys recinded Habeas Corpus in your recent past (and society paid the price) but surely this kind of conduct cannot still be accepted judicial practice. People must have respect for the law and its offices, and the law must respect the rights of the citizenry. As hard as it may be sometimes “innocent until proven guilty” must remain intact, no “inferences can be drawn”, facts supported by evidence – nothing less will suffice if your new efforts at democracy are to bed in and flurish.
    Sometimes I wonder if you guys think “rights” are bequeathed by government, they are not. Citizens rights are to protect you from abuses of power and tyranny. Government of the people, by the people and for the people.
    I hope I am wrong about the judges comments but that is my gut reaction on the information I have available.

  • USA

    Okay, i’m an idiot.
    I just re-read the BBC piece and it seems it was actually the prosecuting QC (Ciaran Murphy) who during closing arguements claimed that “inferences could be drawn”. I had my facts wrong and apologise, but how did this guy Murphy ever get a law degree?

  • heck

    Pete

    I have to agree with USA. Think about the implications of what was said “ Justice Gillen, despite referring to “three key errors” in witness C’s testimony, said that the evidence was “not so poor and unsupported that [he] could not conceivably convict on the strength of it” . This is not justice –this is a judge looking for some justification to send someone away without having sufficient evidence. Justice means that an accused can only be convicted and incarcerated when there is sufficient evidence “beyond a reasonable doubt”. From your post the judge is saying –there are errors in the evidence but this guy is a fenian and I might still have enough justification to lock him up.

    As to the other part of your post “Judge Gillen said that the matter of IRA discussions with Gowdy before he made a statement to the police must be taken into account in assessing his credibility. But the judge noted that that if visits by paramilitary organisations to witnesses were deemed to taint evidence from witnesses, so as to make such evidence unacceptable to the courts, that would provide a valuable weapon to such groups to undermine the rule of law—and would enable them to effectively sideline witnesses.” WTF does that mean? Is suggesting that only the state has the right to investigate malfeasance. Should a journalist having discussions an insider about the BAE bribery case be taken into account in assessing his credibility? If a company is accused of criminal activity and it interviews its employees to determine the facts does that “taint the evidence of witnesses”? Or does this line of reasoning only apply to Fenians. Take the judges comments and apply then to a case that has nothing to do with Norn iron and see how disgraceful they are.

    I enjoy reading your posts Pete as they make one think but I think your idea of “ the rule of law” and mine are totally different. The rule of law is designed to protect the citizenry from the state not to protect the state from the citizenry. The state should only have those powers over its citizens which are granted to it in an open and transparent manner. It should only have the power to take away a citizens liberty when there is evidence “beyond a reasonable doubt” that the citizen has violated some law. And there should be some rights the state should not be able to take away-not mater what the majority decide-the right to privacy-the right to speak freely-the right of the press and citizen to investigate the state,-the right to be treated equally irrespective of race, religion, sex, sexual orientation, or political views.

    I think you have confused the concept of policing with the rule of law. Policing is about control of the people and the enforcement of order. Sadam had “policing”. FFS west Belfast and South Armagh had a better system of “policing” 10 years ago than they do now. I believe your view of “ law and order” is about submission to the power of the state and as a unionist that means submission to the British state.

    When there was the debate about SF support for “policing” I saw lots of comments from unionist bloggers that “you can’t be in government unless you support”policing””. I see why SF were seduced by this line of crap –because they see themselves as taking power in the state. We should reject this line of reasoning. We should insist that the state should submit to us. That is why we should be offended by Judge Gillen and yhat is why collusion is a more important issue than paramilitary crimes.

  • Pete Baker

    “Okay, i’m an idiot.”

    USA

    Did you read the wikipedia entry?

    In particular the linked Criminal Justice and Public Order Act 1994?

    Inferences from accused’s silence

  • Pete Baker

    heck

    I don’t recall ever blogging specifically about my idea of “the rule of law”.

    The closest I may have got to that might be this.

    Or possibly this.

  • USA

    Excellent link Mr. Baker, (do you need to get a life?)
    I will read the relevent statue this evening. Having given it a cursory glance (i’m working at the moment) I can perhaps see why Ciaran Murphy QC encouraged the judge to consider “inferences” in his deliberations. That is not to say I necessarily agree with the law, but I will read it and consider its implications.
    Thank you for the link.

  • Dec

    But the judge noted that that if visits by paramilitary organisations to witnesses were deemed to taint evidence from witnesses, so as to make such evidence unacceptable to the courts, that would provide a valuable weapon to such groups to undermine the rule of law—and would enable them to effectively sideline witnesses.

    Tha may be, but if so does it provide a legal circumstances for witnesses such as Gowdy and Devine to drastically change their evidence after their initial witness statements to police (and in the case of Devine, during the trial itself, once he heard what evidence another witness was to provide)?

    With regards to the inferences issue, it should be noted that Mr Davison, unlike thwe other two accused, made a full statement to the Police accounting for his movements on the night.

  • Pete Baker

    Dec et al.

    With regard to the inferences issue.

    From this BBC report [linked in the original post]

    Following Mr Justice Gillen’s decision, lawyers for all three men confirmed they would not be giving evidence on their own behalves and told the judge that each of them had been warned that a failure to do so would permit the judge to “draw such inferences” as he deemed appropriate. [added emphasis]

  • USA

    I still have not read the resource kindly provided by Mr Baker above, but can see from the posts that the legal teams seem to be making their clients aware of the relevent British legislation.
    At this point I am wondering if it is in fact good legislation, and why do the citizenry let government take away thier rights, such as the right to silence? I am not convinced yet that this is a good law, but I do concede that it seems to be on the books.
    This would seem to mean that a defendant does not have a right to silence, is that correct?
    I will read the legislation when I get a chance and answer my own question, thank you.

  • Pete Baker

    USA

    Allow me.

    “This would seem to mean that a defendant does not have a right to silence, is that correct?”

    No. They have a right to silence. And the court, or jury, have the right to make appropriate inferences from that silence – when properly directed by the judge.

  • Dec

    The prosecuting QC Ciaran Murphy asked the Judge to “draw the proper inferences” from the refusal of all three to give evidence in court and the refusal of two of the accused to answer police questions. As far as Mr Davison is concerned, the prosecution appears to want its cake and eat it.

  • USA

    Mr Baker,
    My current view is that you either have a right to silence or you don’t. If the court, judge or jury can draw “inferences” from a defendants wish not to to tesify then surely the right to silence is negated and no longer exists.

  • Pete Baker

    USA

    Whatever your opinion on the matter, the reality is that here the right to silence is one which comes with responsibilities to the court – and has done since 1994.

    As such the appropriate inferences, under proper direction from a judge, can be made.

    Notably, any verdict will be appealable on the basis of those specific conditions.

  • Garibaldy

    USA,

    A lot of arguments about this when the law was changed. Pete will amost certainly know this better than me, and I am perfectly happy to be told I am completely wrong here, but I think this might have been introduced against terrorist suspects first, and then extended to everybody.

  • USA

    Mr Baker,
    You commented:
    They have a right to silence. And the court, or jury (emphasis added), have the right to make appropriate inferences from that silence – when properly directed by the judge.

    I am glad to see that things have improved to the extent that these men are indeed at least, as you say, being judged by a jury of their peers. Otherwise these technical legal issues discussed would be moot points as the whole process would just be a sham, with one appointed official passing judgement. Those thankfully now historical practices had more in common with military juntas in Burma etc, wide open to political interference, bad police practice, and abuses of power etc.
    Glad to see defendants at least now have a jury to judge them as this would be necessary to meet accepted definitions of democracy.

  • Pete Baker

    “I am glad to see that things have improved to the extent that these men are indeed at least, as you say, being judged by a jury of their peers.”

    Now where did I say that, USA?

    There is a new non-jury trial system in place.

    And, of course, it deals with specific types of trials – where jury members and witnesses may be intimidated, in a similar way to how the Provisional IRA investigation may have interferred with this case. And that’s before we discuss the attempted cover-up.

    The Republic of Ireland has a similar solution.

  • USA

    Garibaldy,

    I am aware that the British deployed this legislation as a counter insurgency tactic. In the same way they did away with the right to a trial by jury, stating that juries were vunerable to intimidation.
    While this is true, I suspect that Britains main motivation was that they recognized in the early days of your conflict that they could not gain a conviction against for example an IRA defendant or a UDA defendant as many of jurers would not convict as they felt the “cause” to be just.
    As they could not enforce the law (gain convictions), the British would no longer be able to administer British rule therefore the whole legal system would fall apart. Doing away with the jury system and introducing Diplock courts was IMHO as much about clinging to the levers of power as anything else.
    This system then led to Supergrass trials, conveyer belts of “justice” etc. As I said, wide open to abuses of power. Trial by your peers is a must. Proper political agreement and unflinching respect for democratic princiles will leave the rump of paramilitaries on the edge of society where the police can hopefully put an end to their criminal activities.
    I find it astonishing that a government can just extend undemocratic legislation like this and apply it to every citizen?
    Do you guys understand the meaning of freedom?
    Astonishing.
    Again I hope I have the wrong end of the stick on this one.

  • Pete Baker

    “I find it astonishing that a government can just extend undemocratic legislation like this and apply it to every citizen?”

    USA

    You should compare that to the claim by ‘heck’

    FFS west Belfast and South Armagh had a better system of “policing” 10 years ago than they do now.

    And then consider the investigation by the Provisional IRA.

    Especially their judgement – an offer to shot those they declare responsible.

    No appeals available there.

  • USA

    Mr Baker,
    You wrote: “They have a right to silence. And the court, or jury, have the right to make appropriate inferences from that silence – when properly directed by the judge.

    Note the word “jury

    You wax lyrical about “responsibilities”, “appropriate inferences”, and “when properly directed” but astonishingly attribute no emphasis to the fact that there is no jury.
    Astonishing.

  • Bemused

    USA – please keep posting – you’re keeping us all entertained down here at the Library.

    How did Ciaran Murphy Q.C. get a law degree? Not sure – I’ll ask him on Monday. Given that he’s generally considered to be one of the finest criminal silks of the last twenty years I’m sure he ‘got’ his law degree without any particular difficulty. The ‘adverse inference’ principle is entirely fair, reasonable, proportionate and, frankly, unremarkable in modern jurisdprudence. Still though, great to see some half-witted yank having the balls/lack of self-insight to start chucking his tuppence-worth into a debate about which he appears to know precisely nothing. As I say – keep it up, there’s a good lad.

  • USA

    Mr Baker, you seem fixated on the IRA.
    They are not the topic of discussion.
    I support good policing indeed have many friends who are seasoned officers in the police department.
    I am trying to get up to speed on this (and work) by raising wider issues of import for your society which this trial highlights. Issues such as how to deal with paramilitaries / organized gangs through the court system, about the right to silence, jury trials, government power, citizens rights and how all these things must be brought together under the umbrella of democracy – and also how I feel a no jury trial fails in this task.
    Had I known you just put the thread up because you wanted to bash the IRA I would not have bothered raising these points for discussion.
    The things I talk about have nothing to do with the IRA and their activities in S.Armagh or anywhere else, that is another discussion, this one is about the judicial system and society.
    You are obviously a smart guy Mr Baker so don’t let yourself down.

  • Pete Baker

    “You are obviously a smart guy Mr Baker so don’t let yourself down.”

    I’ll let others decide that, USA.

  • USA

    Bemused,
    Glad I can give you a laugh.
    You are quite right, I know nothing about this debate and obviously came to the table very late. And again you are right it is merely my tuppence worth. I beg to differ however that I am a half wit, I feel you may be over estimating my abilities.
    My regards to Mr Murphy.

  • Suilven

    Methinks the poster USA should state whether he is opposed to his own nation’s gulag in Guantanamo Bay before waxing loquaciously about other nations’ rights and freedoms?

  • USA

    Suilven,
    Again, we are not discussing Guantanamo Bay – finger pointing is the refuge of those with no arguement. We are discussing a case brought before a court in Belfast Ireland.
    As it happens I am one of many (perhaps now a majority) in the US who have grave reservations about the conduct of our current President and his gun boat diplomacy advisors such as Cheney, Rumsfeld et al. But again that is a completely different topic of discussion.
    Try to stay on task.

  • USA

    “Finger pointing” = Whataboutery.