Lawyer 2B/BPP Competition Winners: Essay 2

After much deliberation, Lawyer 2B can reveal the winners of the Lawyer 2B/BPP Law School essay competition, who claim their prizes of free GDL and LPC places. Here are the winning essays…

Essay 2: ‘The Only Way to Subvert a Liberal Society is to Deny its Citizens Due Process of Law’ Discuss. By Victoria Walne.

Article 39 of the Magna Carta provides: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.” Centuries before England could be regarded as liberal, it was agreed between King John and his barons that English subjects would have equal access to fair judicial proceedings. In 1948 the principle of due process of law found a modern expression in Articles 6-12 of the Universal Declaration of Human Rights. In light of the violation of human rights and civil liberties by Nazi Germany and Stalinist Russia, the declaration was an attempt to define a standard of rights to which a liberal, democratic state should adhere.

Due process of law incorporates a series of judicial rights. These rights include the principle of presumption of innocence, a right for an individual to be charged or released soon after arrest and to be notified of any charges against them. After being charged, an individual has a right to be brought promptly before a judge, a right of access to a lawyer of their choice, a right of access to evidence held against them and a right to a fair hearing in an independent and impartial court at which they have the opportunity to be present. In addition, due process prescribes that an individual has a right not to incriminate themselves and an opportunity to be judged by reliable evidence according to the law as it was at the time the offence was allegedly committed.

The guiding principle of liberalism is the maximisation of an individual’s liberty. This is achieved by limiting the power of government and controlling its encroachment into an individual’s freedoms. The school of liberalism is traditionally characterised by its mistrust of the state. In his tract Common Sense, Thomas Paine declared: “Government, even in its best state, is but a necessary evil.”

The doctrine of the rule of law is central to liberalism and is a means to ensure that a citizen’s rights are protected against the government and abuses of power. The rule of law is a form of constant, natural law that governs the actions of those in power as well as ordinary individuals. The English jurist AV Dicey, in his text An Introduction to the Study of the Law of the Constitution, expounded the view that the rule of law was a fundamental and distinct feature of the UK constitution. Central to Dicey’s definition of the rule of law is the concept that every person, including members of the executive, is subject to the laws of the land and the jurisdiction of the courts. The administration of justice according to set rules and principles allows for a higher law to govern the judicial process so that legal proceedings are not at the whim of the executive.

The fundamental role that due process plays in liberal societies can be seen in the recent transition in the political ideology of the Iraqi state. Following a ratification vote on 15 October 2005, Iraq adopted a new constitution, Article 19 of which states: “Every individual has the right to be treated in a just manner in all judicial and administrative procedures.” Four days after the vote, the trial of Saddam Hussein began at the Iraqi Special Tribunal in Baghdad. Even the former dictator was allowed due process of law as the Iraqi state struggles towards a more liberal future. While due process rights in Iraq are still new and uncertain, the state has come a long way since the atrocities at Abu Ghraib prison, where Iraqi citizens were tortured for evidence and executed without trial. Despite concerns that the Saddam Hussein trial will end in farce, the fair legal proceedings afforded to the former dictator were considered a fundamental element of the liberalisation process in Iraq.

Opinions on due process rights and liberalism have developed since 1945 when, at the Yalta Conference, Winston Churchill thought that senior members of the Nazi Party should be shot without the “farce” of a trial. Roosevelt supported trials for the leaders, so long as they were “not too judicial”.

While due process rights are inextricably linked to the concept of liberalism, there may be situations where the requirements of fairness in judicial proceedings are overridden by more compelling interests. In certain ‘national security’ circumstances it has been considered necessary to suspend these rights to certain individuals in order to preserve liberalism itself. For the executive, it is a matter of balancing the human rights of its citizens and those of the enemy. In R v Secretary of State for the Home Department ex parte Hosenball (1977), then Master of the Rolls Lord Denning stated that in “a case in which national security is involved… our cherished freedoms may have to take second place. Even natural justice itself may suffer a setback”. This is in line with Article 15 of the European Convention on Human Rights, which states: “In time of war or other public emergency threatening the life of the nation, [that nation] may take measures derogating from its obligations under this convention.”

During World War II, the executive was willing to suspend due process rights in some situations in an effort to strengthen security and defend Britain against the threat from fascism. In Liversidge v Anderson (1941), the House of Lords considered whether Robert Liversidge had been detained unlawfully under the 1939 Defence (General) Regulation 18b, which provided for an individual’s imprisonment if the Home Secretary had “reasonable cause to believe” that they were “a person of hostile origin or associations”. A majority of four held that it is enough for the Home Secretary to think they have reasonable grounds for detention. However, Lord Atkin took an objective view of the regulation: the onus of proof is on the Home Secretary to show that they actually have the reasonable grounds for detention that they claim. Lord Atkin remarked: “Amidst the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace… It has always been one of the pillars of freedom, one of the principles of liberty for which… we are now fighting, that the judges… stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.”

Lord Steyn stated that the divided opinion in Liversidge v Anderson is “emblematic of the recurring clash of fundamentally different views about the role of courts in times of crisis”. Since the attacks of 11 September 2001 in the US, there has been fierce debate about the extent to which the atmosphere of terrorism necessitates the suspension of due process rights for suspects. In recent years Western governments, most notably the US and the UK, appear to have tipped the balance in favour of the human rights of their citizens to the detriment of the rights of the suspected terrorists. In November 2001 a military tribunal order stated that the threat posed to the US by terrorism was so serious that, with such detainees, “it is not [practical] to apply… the principles of law and the rules of evidence generally recognised in the trial of criminal cases in the United States”. Since 2001, the US has suspended due process rights for prisoners, or ‘enemy combatants’, held at the naval station in Guantanamo Bay, Cuba. However, as pressure from civil liberties groups and the media has intensified, the US courts ruled on 28 June 2004 that the detainees can challenge their detention in US courts.

The UK Government faced similar criticism of its detention of terror suspects at high-security prison Belmarsh. On 18 March 2004, M, a 38-year-old Libyan, was released after 16 months in Belmarsh without charge or trial. On his release he issued a statement claiming that he was not interviewed by police or security services on a single occasion during his detention. The Special Immigration Appeals Commission (SIAC), which has clearance to review classified material, declared that the evidence against M was unreliable and “clearly misleading”; it ordered his release. Although the British Government did not have enough reliable and stable information with which to charge M, the Home Office reserved the right to detain the suspect indefinitely without charge, breaching his due process rights, because of national security concerns. The SIAC’s report illustrates the problem of the judiciary deferring to the will of the executive.

Fairness in judicial proceedings, however, only ensures that an individual is judged according to the ‘laws of the land’. Procedural fairness does not ensure that the means and purposes for denying an individual these fundamental rights are themselves compatible with liberal principles. An individual might be charged promptly on arrest and their case heard in an independent court according to reliable evidence. However, if the reason for their conviction contravenes their basic rights and freedoms, then despite safeguards to protect due process rights the society cannot properly be labelled as liberal.

A purely procedural interpretation and application of due process does not, in itself, create a political system in line with traditional Western democratic models. In effect, any society in which there exists a system of law and order makes provisions for its citizens to have due process rights. It is not the preserve of a liberal society. Due process is a procedural concept intended to act as a mechanism to protect natural, inalienable freedoms. It is the existence of these freedoms and rights that create a liberal society.

The other fundamental way to subvert a liberal society is to deny its citizens basic rights and liberties, such as the right to privacy and freedom of expression. In a sense, due process of law not only acts as a mechanism for protecting a citizen’s basic rights, but it is, in itself, an inalienable right on its own – a universal entitlement, like any other right. From this viewpoint, the right to due process of law is one of a number of fundamental rights, which together create the basis of a liberal society. The denial of one of these rights to an individual, or group of individuals, is potentially a means of subverting a liberal society.

While due process of law is a foundation stone of liberalism, denying a citizen this right will not always subvert a liberal society. In situations where there is a recognised threat to national security, the suspension of the right to fair judicial proceedings to certain individuals who are considered an enemy to liberalism might be necessary in order to protect liberalism itself. Yet an abuse by the executive of the power to deny an individual due process rights is only one way of subverting a liberal society. According to the writings of the fathers of liberalism such as John Locke, Paine, Montesquieu, and the constitutions of liberal states, all citizens are born with a set of rights and freedoms. Another way to undermine the values of liberalism is to strip an individual of any one of these.

Victoria Walne is studying for a GDL at BPP Law School, London.