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Balancing Act

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Two interesting reports highlight the difficulties of striking a balance between the competing interests of the prosecuting authorities and the rights of the accused.  The first is the House of Lords judgment against the State over control orders, imposed on suspects who have never been charged with a criminal offence but who are deemed to be a risk to the public good, and the second is the new guidelines handed down to judges to increase the rate of conviction in rape trials.

The House of Lords faced an unpalatable dilemma, and it was Lord Hoffman who came closest to admitting his discomfort in the judgement that followed.  They ruled that any suspect subject to a control order has the right to know the evidence against him, and in the absence of such evidence, a control order breaches his human rights.  But what about ours?

We all know there is an enemy within, call them terrorists or subversives or what you like, who are here under false pretences, and often false passports and false pretexts, whose sole aim in life is to wreak havoc on our society.  Thanks to the vigilance of our security services, many are identified at an early stage, but until they make their move, there is insufficient evidence to prosecute them.  But by their very definition, our security services work in dark alleys and smoke filled rooms, relying on informants, wire tapping and covert surveillance which, if their methods were to become public knowledge, would be self defeating.  For obvious reasons, our security services work in secret, the enemy within knows they’re out there, and it becomes a game of cat and mouse.  Who will blink first?

This unpalatable dilemma is exacerbated by our absurd deportation laws, surrounded as they are by rules and regulations and appeals and further appeals, and when, eight or so years later, the appeal process has been exhausted and the undesirables are ready to be deported, the authorities are obliged to find a country that will take them.  That country must be squeaky clean, it must conform to the Geneva Convention, the United Nations Charter and the European Convention on Human Rights, and more besides.  As most of the undesirables ‘fled’ from countries which would fail even the most basic tests on human rights, they remain as guests of Her Majesty, or, at best, finish up in Bermuda or on some deserted South Sea atoll.  Whatever else, this absurdity needs to be addressed as a matter of urgency.  If we don’t like them, put them on the first plane back from whence they came.  Why should we take the responsibility of ‘looking after them’?

The new guidelines on rape trials are ill conceived, and potentially dangerous in the interests of justice and the accused.  It’s all about increasing the number of convictions, which, we are told, are the lowest in Europe, and possibly the Universe for all I know.  But I have yet to be told why.  Surely this is the starting point if the government feels there is an injustice to be remedied.  My own professional experiences in rape trials underscore the folly of meddling in the deliberations of the jury and undermining their verdicts, and all with the stated aim of engineering more convictions.  The guidelines are also an insult to intelligence.  One, for example, enjoins the judge to direct the jury that a girl out on the town with a dress halfway up her bottom, stonking drunk and slumped in the gutter with legs akimbo, is no more likely to be consenting to sex than Little Miss Prissy Anne on her way home from a church social.  I mean, let’s get a reality check here!

For my part, the specimen directions given by judges in rape trials are already more than sufficient unto the needs thereof, and let’s face it, you don’t wave a red rag at a bull if you don’t want to be penetrated.  Better still, you don’t even step into the ring.

As to control orders, let’s stand firm in the face of adversity, and if the judges don’t like what they hear, don’t tell them.  As they say, what you don’t know can’t hurt you.

David Osborne is a successful barrister, voice actor, author, media personality and public performer. In 1991 he hit the headlines nationwide and made legal history when he delivered his final speech to the jury entirely in verse. For this tour de force he was dubbed the Barrister Bard. For more information please visit www.david-osborne.com

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