Terror makes tyrants of us all: Boris and the Reverse Burden proposal

Posted on 29th Aug 2014 in Points of Law

If a thing is worth doing, it’s worth doing properly. If a right is worth having, it’s worth protecting that right in wartime, peacetime and any time in between.

 

Boris gun

Boris – fighting fit (from Telegraph)

In a civilised and democratic society, such as we all claim to want to protect, the presumption of individual liberty does not simply evaporate as a matter of executive convenience. Its removal requires some very compelling justification.

Take it on good authority, as recorded in the Law Reports: Lord Atkin’s famous dissent in Liversidge v Anderson  [1942] AC 206, 244:

In this country, amid 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 on recent authority we are now fighting, that the judges are no respecters of persons and 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 Atkin was speaking of a reversal – by judges “more executive minded than the executive” – of the normal principle of construction, that any ambiguity should be resolved in favour of liberty rather than the state or its claims to security in defence of the realm. And that was during a world war, a rather more dire emergency than the current unspecified risk of the contagion of terror from civil wars erupting variously in the Middle East.

A modest proposal

As you may have anticipated, this is by way of an introduction to the subject of Boris Johnson’s recent proposal that, in view of the exceptional threat posed by islamist jihadis, the normal presumption of innocence should be expediently reversed in certain cases, to make it easier to prevent them, on their return to this country from warzones abroad, becoming a domestic terror threat; or even to prosecute them for having been one overseas. Boris’s proposal was backed by Metropolitan Police Chief, Sir Bernard Hogan-Howe, interviewed in the Evening Standard.

This is what Boris said, in an article in The Telegraph:

We need to make it crystal clear that you will be arrested if you go out to Syria or Iraq without a good reason. At present the police are finding it very difficult to stop people from simply flying out via Germany, crossing the border, doing their ghastly jihadi tourism, and coming back. The police can and do interview the returnees, but it is hard to press charges without evidence. The law needs a swift and minor change so that there is a ‘rebuttable presumption’ that all those visiting war areas without notifying the authorities have done so for a terrorist purpose.

He presented this startling sea-change with his customary affability as a minor tweak or technical adjustment, almost a throwaway line, and by implication nothing any law-abiding citizen need have the least concern about; but more expert legal minds were far from convinced. Prominent among them was the former (recently shuffled out) Attorney General, Dominic Grieve QC, who (interviewed in the Telegraph) described the proposal as “draconian” and something that would represent a “profound change” to British law:

“It would be a draconian step and although there are certain examples of reversing the burden of proof in this way I can’t think of any for such a serious offence as terrorism. There have been a number of incidences of successful prosecutions of individuals going to prepare terrorism. We should seek to use those first before throwing away very important legal principles.”

Other critics of Boris’s “modest proposal”, apart from the chorus of indignation on Twitter, came not just from the left but also the libertarian right. The Prime Minister, David Cameron, described it as a “kneejerk response” (the Guardian). And Alex Massie writing in the normally Boris-friendly Spectator said:

If any other high-profile politician were suggesting the burden of proof in criminal trials should be switched from the accuser to the accused we’d be properly – in both senses – appalled.

Having acknowledged that “everyone writes daft things from time to time” (as Boris should know, having formerly edited the Spectator), Massie pointed out that not everyone has ambitions to lead not just the party but the nation.

Lord knows, we suffer enough from ill-conceived and hasty amendments to the law as it is without introducing fresh measures that must, in this instance, inevitably greatly increase the probability of wrongful incarceration.

Dr Eamonn Butler, Director of the Adam Smith Institute ( No, Boris – we are never guilty until proven innocent) said:

The proximity of the 800th anniversary of Magna Carta next year makes Boris Johnson’s [proposal] even more shocking. His plan to arrest anyone who travels to Syria or Iraq without ‘good reason’ utterly abandons the presumption of innocence. …

Are our Magna Carta liberties to be so swiftly and so triflingly abandoned?

However, another blogger on the Adam Smith website, Rajiv Shah, sought to defend Boris’s assertion that such a change would be “minor”. True it was that Viscount Sankey LC (as recorded in the Law Reports) said in Woolmington v Director of Public Prosecutions [1935] AC 462 at 481:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.

However, the number of “any statutory exception[s]” was so great, said Rajiv Shah, citing an article dating from 1996 (“The Presumption of Innocence in English Criminal Law” [1996] Crim LR 306-317) that “one can ask whether the exception has swallowed the rule”. The Human Rights Act 1998 had subsequently made it possible for courts to nullify some reverse burdens; something that would-be repealers of that much-maligned Act might want to consider the implications of giving up. It transpired that Rajiv Shah was not supporting Boris’s proposals; rather, he was pointing out, sadly, how inadequate Viscount Sankey’s golden thread might still be to join up our loom-band of liberty.

Where Pakistan leads, does Boris really want to follow?

Boris may not be aware of it, but his illiberal proposal has an enacted precedent: the Protection of Pakistan Act 2014 by section 15, in cases pertaining to “war or insurrection against Pakistan” or acts “threatening the security of Pakistan”, reverses the burden of proof, deeming suspects to be guilty until proven innocent.

It also provides legal cover for law enforcement and soldiers to shoot suspects on sight, while establishing parallel courts with limited rights of appeal, according to Cage (citing Al-Jazeera).

Pakistan is, of course, an ally of the UK in the fight against terror, however you define that nebulous phrase. But this new law must inevitably give rise to great concern over the risk of error and abuse, possibly fatal.

If there’s one thing that separates us from the regime the hardline islamist terrorists want to establish, it must be the protection of individual liberty and human rights. We don’t protect those by eroding or removing them. Otherwise the reversed burden will be on us, to prove we are still civilised.