Last week we warned of the dangerous implications of the Justice and Security Green paper and today a case has emerged that not only highlights the existing dangers of secret justice, but also the potential for abuse of the sweeping powers proposed by Ken Clarke.
In today’s Sun and Hereford Times, a story has emerged about an alleged SAS employee being convicted of drink driving. Despite causing £40,000 of damage and being more than twice the drink drive limit, the man – Mr G – was only charged with drink driving and so his case was heard at a magistrates court. He was fined£520, banned from driving for 12 months and has been ordered to pay the family involved £400 in compensation, £85 court costs and a £15 victim surcharge.
The Government sought – and won – an order preventing the disclosure of the man’s identity. In the past, these orders have been overturned, most recently in the case of convicted child abuser Ian Tuckley. The cost of taking on the Government in court is a huge burden for a local newspaper to take on, and so it is not surprising when the orders sometimes go unchallenged.
Importantly, because the man was not charged with a more serious offence, for example dangerous driving or criminal damage, which given the scale of the damage caused would not have been unreasonable, his case did not go before a Crown court. This meant the arguments about protecting the man’s identity were not heard by a senior judge, but a magistrate.
The Magistrate did rule however that the man’s human rights meant his identity should not be disclosed,
Whether the party involved is a local newspaper or a family who have been the victim of wrongdoing, open justice is a fundamental part of a democratic society.
There is clearly a need to protect those working in sensitive roles, but given the serious implications for justice these kind of orders should be used sparingly, not as a routine procedure. It is no secret the SAS are based in Hereford and those working there should not be held as above the law.
As the Hereford Times writes:
“It is bad enough that the courts should effectively put Mr G above the basic principle of open justice but then to impose a sanction that is seen as unnecessarily lenient by those who were the victims of his crime diminishes some long-held principles.”
A basic principle of our legal system is that justice must not only be done, but be seen to be done. Cases like this undermine not only the public’s trust in assertions of national security, but the wider confidence in a judicial system where we are all treated equally.
This kind of case is only the thin end of the wedge. As we have warned, the Justice and Security Green paper would give Ministers the ability to impose these kind of restrictions on the evidence that could be put before a court in any civil case.
Rather than protecting national security, there is a real risk that these very serious powers become a cloak of secrecy for malpractice and negligence. The financial burden on those seeking justice becomes too great, and they are unable to pursue their claim. That is not a victory for the Government, it is a wholesale denial of justice.