Discolouring Democracy? Policing, Sensitive Evidence, and Contentious Deaths in the United Kingdom

Publication Date01 Nov 2013
DOIhttp://doi.org/10.1111/j.1467-6478.2013.00643.x
AuthorGreg Martin,Rebecca Scott Bray
JOURNAL OF LAW AND SOCIETY
VOLUME 40, NUMBER 4, NOVEMBER 2013
ISSN: 0263-323X, pp. 624±56
Discolouring Democracy? Policing, Sensitive Evidence, and
Contentious Deaths in the United Kingdom
Greg Martin* and Rebecca Scott Bray*
This article examines recent United Kingdom government proposals
for secret inquests, which, it is argued, are part of a general push for
secrecy discernible across common law jurisdictions, and which
include developments such as increased recourse to sensitive evidence
in forensic settings and the normalization of intelligence-led policing.
While the push for secrecy is justified by national security claims, the
article shows that in cases of contentious death involving police, the
issue is less about national security and more about the use of intercept
evidence, covert surveillance, and intelligence-led policing, all of
which have implications for police trust, accountability, and reputation
management.
INTRODUCTION
On Monday 23 August 2010, the body of Gareth Williams, a 31-year-old
British Government Communications Headquarters technician on second-
ment to the Secret Intelligence Service (SIS, or MI6), was found in a
padlocked holdall bag in the bath of his Pimlico flat in central London. He
had been absent from work for a week when his colleagues notified police
and his family. Given the sensitive nature of Williams's employment and
fears about national security, security-cleared officers from the Metropolitan
Police SO15 counter-terrorism unit searched SIS offices and interviewed its
staff, liaising between homicide officers and the SIS. At the inquest into
Williams's death, a number of difficulties with this investigative approach
became apparent. The coroner criticized SO15 officers for producing
anoymized notes of interviews with SIS staff instead of formal statements,
624
*Department of Sociology and Social Policy, University of Sydney,
Camperdown, NSW 2006, Australia
greg.martin@sydney.edu.au rebecca.scottbray@sydney.edu.au
Thank you to the anonymous referees and editors for their helpful comments, and to Sam
McIntosh for personal correspondence regarding the Azelle Rodney inquiry.
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School
which she noted affected the quality of evidence heard in court. Furthermore,
the coroner rebuked SO15 for failing to pass potential evidence taken from
Williams's work locker to homicide officers because the SIS had deemed it
irrelevant, and also criticized the SIS for not reporting Williams's absence
from work earlier.
Taken together, these facts led some to note the case undermined the
United Kingdom government's plans contained in its Justice and Security
Green Paper to conduct closed hearings involving sensitive evidence from
the intelligence services,
1
where inquests into deaths like Gareth Williams's
would potentially be held in secret.
2
They believed the case demonstrated the
capacity for the security services to act self-interestedly, and that the `scope
for wrapping themselves in national security and acting outside the law
without being held to account is thus very considerable'.
3
For others, this
illustrated one of the strongest arguments against the Green Paper: `that,
sometimes, when the state's secret agencies do wrong, they must be called to
account openly, with full disclosure of the facts'.
4
The bulk of the Green Paper proposals are now contained in the Justice
and Security Act 2013,
5
although the government's `secret inquest' propo-
sals were excluded from the Justice and Security Bill 2012 following
significant criticism. This push for greater secrecy in legal proceedings is
important to our arguments in this article because it constitutes the latest in a
line of examples involving what we identify as the creep of `secret justice' in
the United Kingdom. And even though government attempts to introduce
secret inquests have been continually knocked back over recent years, we
examine them here be cause, we argue, th ey highlight ongoin g and
unresolved issues that relate to policing and the use of secret evidence in
the context of death investigation. Specifically, concerns to do with the
relationship between intercept evidence and inquests remain pertinent
despite that issue not being addressed by the Justice and Security Bill 2012
and subsequent Act. Significantly, this issue has been neglected in the
academic literature, and concern about it remains undiminished by the fact
that inquests were excluded from the legislation.
It is a central contention of ours that although still a relatively under-
researched area of `secrecy studies', most attention has focused on reform of
intelligence agencies, while limited consideration has been given to reform
of law enforcement agencies in light of the normalization of intelligence-led
625
1 HM Government, Justice and Security Green Paper (2011; Cm. 8194).
2 O. Bowcott and R. Norton-Taylor, `Queen's Speech: Plans for Secret Hearings in
Civ il C our ts B ro ugh t Fo rw ard ' Gu ard ia n, 9 M ay 20 12 , at tt p: //
www.guardian.co.uk/law/2012/may/09/queen-speech-secret-hearings-courts>.
3 M. White, `Gareth Williams case should make us all uneasy' Guardian, 3 May
2012, at 012/may/03/gareth-williams-case-
all-uneasy>.
4 D. Rose, `The CIA and Rendition' New Statesman, 7 May 2012, 15.
5 The Justice and Security Bill 2012 received Royal Assent on 25 April 2013.
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School
policing. Using key cases of contentious deaths involving police, we
demonstrate how attempts to keep things secret ± for example, via the
production of redacted material or the United Kingdom's continued bar on
intercept evidence ± have potentially deleterious effects on police trust and
accountability, as well as infringe upon the principle of open justice.
Moreover, in an era where the executive arm of government, intelligence
services, and police forces all seem intent on shrouding their activities in
secrecy and attempt to protect their actions via closed procedures, we show
how a `jurisprudence of secrecy' is emerging, which expresses unease at the
increased incidenc e of Kafkaesque scenari os, and is sceptical abo ut
justifications for confidentiality and secrecy on the basis of protecting
national security. Ultimately, these developments take place in the context of
the United Kingdom's human rights obligations.
The developments we outline in this article therefore signal an urgent
need to evaluate and account for the creep of secrecy in legal settings,
criminal justice, and law enforcement. Indeed, this need has been highlighted
by comments made in the wake of the Hillsborough Independent Panel's
revelations about police cover-up and doctoring of evidence, including Lord
Macdonald's observation that the Panel's findings illustrate the ```absolutely
suffocating'' culture of secrecy in British public life';
6
a view further vin-
dicated by revelations of child sexual abuse involving high-profile television
personalities.
7
A CREEPING CULTURE OF SECRECY
In this section, we provide a context within which to frame our analysis of
secrecy and `secret justice' in the United Kingdom. The analysis confirms
the view that like other exceptional legal measures introduced after the terror
attacks of 11 September 2001 (9/11) there has been a slide to secrecy in areas
of law and policy beyond the counter-terrorism context. Among other things,
this involves increased use in legal proceedings of secret evidence and
intelligence collected by security and law enforcement agencies, as well as
the enhancement of police powers to carry out surveillance and conduct
clandestine searches, which can be the source of such `evidence'. Legal
exceptionalism, justified on the basis of safeguarding national security, has
also led to an increase in the power and discretion of politicians within the
executive who `always find it difficult to resist when spooks tell them that,
unless they get their way, the country will be more vulnerable to terrorist
626
6 A. Sparrow, `Politics Live with Andrew Sparrow' Guardian, 13 September 2012, at
tp: //w ww. gua rdi an. co .uk /po lit ics /bl og/ 201 2/s ep/ 13 /hi lls bor oug h-r epo rt-
reaction-politics-live>.
7 See, for example, S. Moore, `After Stuart Hall and Savile, the more victims' voices
are heard, the better' Guardian, 3 May 2013, at
commentisfree/2013/may/03/stuart-hall-savile-victims-voices>.
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

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