The abolition of Habeas Corpus

By Frederick Forsyth

(As broadcast on Radio 4 - Saturday essay) - reproduced by kind permission of Mr Forsyth

Some modern journalists never cease to amaze me. They can get their knickers in a hell of a twist over trivia, but stare at a massive story and see nothing. Thus has it been with the appalling decision to accept the pan European arrest, cum extradition, blank cheque, now being railroaded onto our Statute Book, provenance (surprise, surprise) Brussels.

If the aim had been to establish faster and more effective co-operation with European police forces, fine. Why not say so? But this was put over as part of the struggle against global terrorism. Fact: of the thirty two categories of crime included, at least nineteen have nothing whatsoever to do with terrorism in any way, shape of form. So why lie?

When politicians lie, journalists ought to go straight to red alert because they are trying to cover something up. What the Blair government is trying to cover up here is the abolition of the right of every British citizen to present his defence speedily in open court. It gets worse.

Under the new act the demand (not request any more) for your extradition to a foreign jail need not be issued or even endorsed by the Justice Ministry or Attorney General of the European country. A provincial or regional examining magistrate will do. It gets even worse.

The examining magistrate in Europe is both public prosecutor and imprisoning judge rolled into one. In Britain we would never permit such awesome power in the hands of one man, who could be legally flawed or driven by a fanatical political agenda, as some are. It gets even worse. If a foreign magistrate demands your extradition, he does not have to furnish a jot of proof, testimony, evidence, witness statements or prima facie case. And you will have no appearance before a British judge, no refusal and no appeal. And it gets even worse.

A European examining magistrate can consign a suspect to remain in custody (meaning jail) until he is good and ready to address what he has accused you of. And that can take years. Again, no appeal; and the British consul can do nothing.

Now, before I get the usual whinge: 'Oooooh, you're being Europhobic'..... wrong. I am simply pointing out the complete incompatibility of two legal systems that cannot meld.

British law is based on three pillars: Common Law, Case Law and Statute Law. But these are run through with hard won rights: writs of Habeas Corpus, Mandamus, Certiorari, trial by jury, speedy access to an independent judge, the presumption of innocence until proven guilty. Never mind the Latin; what they all mean is that even if accused and charged, you are still a human being, not a pawn in some legal game.

European Law depends massively on the Code Napoleon. Bonaparte was a dictator; he loathed democracy and despised citizen's rights. The law he left behind is massively skewed in favour of the State and against the individual. That is why successor dictators, arising in Germany, Austria, Vichy France, Spain, Portugal and Greece, only needed to make the tiniest amendments to Code Napoleon to cow their people into frightened submission. And all within the law. Under Code Napoleon pre-trial detention, its conditions and duration, are entirely at the whim of the Chief Prosecutor who will naturally not be susceptible to the idea that he might have made a mistake. Yet time and again in recent British cases, the police's first suspect has turned out not to be the guilty one after all.

The right to protest your innocence, to defend yourself, before a judge / magistrate who is utterly independent of the prosecuting machine, is the greatest civil right we Brits ever had. Tony Blair, ramming the new measure through the mindless cipher the House of Commons has become, using a procedural trick to avoid the House of Lords, has thrown it away for a round of applause in Berlin.

It would have been perfectly possible to speed up court procedures, ban artificial delays, create a special Extradition Court, and still retain the accused's right to one independent hearing. Habeas Corpus may be dead, but Pierre Laval lives again.