Helen Kennedy: 'They are eroding something that affects all of us'

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The Independent Online

Detention without trial is an erosion of the rule of law that should never have been contemplated by the Government. The international legal community has stood firm on the position that, even in terrorism, there have to be trials based on evidence.

Detention without trial is an erosion of the rule of law that should never have been contemplated by the Government. The international legal community has stood firm on the position that, even in terrorism, there have to be trials based on evidence.

Other nations in Europe have had exactly the same problems as we have. The way of dealing with people suspected of association with al-Qa'ida is to gather evidence and pay proper regard to due process. The only acceptable alternative to trial is to put suspects under surveillance and to neutralise them by making sure that they are aware that their every movement is monitored.

My experience as a criminal lawyer, who has represented many in Irish terrorism cases, is that intelligence can often be unreliable, which is why it can only ever be the starting point of an investigation.

In the past, intelligence would be passed to the police, who would have to go through the process of building a case in the traditional way; by keeping the person under surveillance, tapping telephones, bugging their accommodation, entering premises and gathering fingerprints and other forensic material. After their arrest, there could also be evidence drawn from interrogation.

Nowadays, there is the bonus provided by DNA and mobile telephone connections, which not only establish links between suspects, but also their location. There is also the ability to disembowel computers and examine e-mail correspondence.

By just locking people up you avoid having to do the hard slog - that is why the police are so keen on the new legal regime of detention merely on intelligence.

Introducing anti-terrorism legislation invariably affects the whole legal system. We saw that with the erosion of the right to silence in the late 1980s in Northern Ireland, which became part of British domestic law in 1994. New processes find their way into the general law, which is why we should be so vigilant.

The miscarriages of justice that occurred in the late 1970s were not confined to terrorism. Others, like those in the Carl Bridgewater case, were victims of a policing culture of extracting confessions, which developed because of our complacency around terrorism. Laws for terrorism can never be vacuum-packed. They end up contaminating the whole system.

What people like David Blunkett do not understand is that law is a fabric. It is not just an instrument. It holds society together.

All of us suffer when standards are lowered. And while we may be seduced into thinking the new laws only affect the "other", they end up affecting us all.

Helena Kennedy QC is a leading human rights lawyer and member of the House of Lords who defended many members of the IRA during the 1970s and 1980s. She was a member of the International Bar Association's Task Force on Terrorism, which was set up immediately after 11 September 2001

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