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Justice on the cheap is no justice at all

by Jon Whitfield and Liam Walker.

Euro 2004 in Portugal saw incidents of football hooliganism and a number of English fans were arrested. They were paraded in public and around the world in newspapers and on television as the ugly face of football, the hooligan element. Many if not all were considered guilty even before the ink dried on the tabloid pages. They were ‘tried’ convicted, sentenced and deported from Portugal in under 48 hours under a special fast-track system designed to deal with hooliganism quickly and efficiently. On arrival in the UK they were met by the police and served with notices that Football Banning Orders (FBO) would be sought against them by the Metropolitan Police.

You may recall the comments by the great and the good praising the fast-track justice (for which read conviction) and the harsh sentences. Such comments may look good at the time and catch the voter’s or the reader’s eye but they were ill-judged and precipitate. Read on and find out what really happened to eight innocent men caught up in a politically motivated legal system. As you do so, lament the passing of the English legal system as it is politicised and strangled.

Football Banning Orders

The FBO is one of the weapons used to prevent organised football violence at home and abroad. Broadly speaking if it is shown that you have “caused or contributed” to violence in the UK or elsewhere and, there are “reasonable grounds to believe an FBO would help to prevent [future] violence”, a court must impose a ban. The reasoning is simple - if you have been convicted of football-related violence then (a) you have caused or contributed to violence and (b) a banning order could help to stop you in the future. An FBO may thus be based on a conviction abroad which his exactly what was attempted in this case.

Human Rights

Proportionality

Article 8 of the European Convention on Human Rights guarantees a respect for a private and a family life. In this context it means that sentences or other orders must be proportional to the crime, it must be fair (we prefer the term ‘just’). An FBO prevents someone from travelling both in this country and abroad and may operate for several years. It is therefore a severe limitation on a citizen’s Article 8 rights. However, hooliganism brings misery to many and disgrace to this country and to football. If you are properly convicted of violence (if you are a real thug) it is unlikely that a sensible preventative order will be seen as disproportionate. The length and strictures of an order can be adjusted such that if you are convicted of riot you may expect a lengthy order, if convicted of disorderly behaviour proportionality would dictate a shorter term. For all the fancy EU or UK terminology we return to our favoured phrase, an order must be ‘just’.

Fair Trials Abroad

Each and every one of the men had the same story to tell – police beatings (some resulting in broken ribs), no food, no water, no sleep, inhumane conditions. No lawyers, no interpreters and a kangaroo court more interested in speedy convictions and publicising a job well done (ie convicting) than getting to the truth. Of course no-one believed them after all, they were hooligans weren’t they??

In this country all that was argued on behalf of the eight men was that to rely on the conviction in Portugal the Police had to prove that the conviction was safely and properly obtained, the trial was fair and balanced and, the truth was achieved. It is not a question of guilt or innocence, it is even more fundamental than that. You cannot begin to consider guilt or innocence until for example you know: Did they know what they were charged with? Did they understand they were on trial? Did they speak the language? What was the evidence against them? Were they ever able to speak on their own behalf? These fundamental matters are what may give rise to a safe verdict. That was the argument raised on behalf of all thee men and no-one can have the slightest objection to these principles whether enshrined in English law, in the HRA or in Portuguese law. Sadly in Portugal they were observed in the breach in every single aspect not that anyone bothered to properly investigate these issues before trumpeting the convictions and/or setting about obtaining FBOs.

Sadder still is the fact that we are set upon a similar course by Government as they erode your right to know the case against you (disclosure), your right to silence, your right to proper representation, your right to call expert evidence, they are collectively denying you the right to properly defend yourself in court. Without effective independent representation there is no safeguard against executive action and, alarmist as that may appear to some, why should we be any different to what happened in Portugal where the process was political and even the defence lawyer spoke in terms of arriving at a safe conviction?

Here, now, we have endless references to the guilty getting away with it, reason twisted by greedy lawyers earning hundreds of thousands, when the truth of the matter is that what every lawyer wants is a fair system. Fair to the Prosecution and the victim, fair to the Defence and the accused, fair to the lawyers who have to act in these cases and, free from political intervention and vote-grabbing.

In cases such as this, there is a presumption against the grant of legal aid. Indeed following the “acquittal” of these men and the condemnation of the proceedings to which they were subjected, the advocates in court are yet to be told if they will be paid.

The Police application to obtain banning orders against the eight men convicted after “trial” in Portugal was based entirely on the Portuguese conviction. They argued that since Portugal had signed the ECHR and a legal-process had been followed, one could presume that there was no unfairness, the conviction was proper and the FBOs should be imposed. Not only does such an approach demonstrate the naivety of the application, it reverses the burden of proof. One doesn’t assume that a trial is fair because a country has signed the HRA. The Police have to prove that it was fair after all, they are relying on it.

Article Six – A Fair trial

Two questions arise: One, how do the Police prove a trial abroad was fair? Two, what do they have to prove? The first question is easy they bring evidence to court here and describe the process and procedures used to obtain a conviction. The second question is also easy because the answers have been written down in Art.6 ECHR and refined in case law.

Article 6 provides as follows

1. “… everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ....”
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
   1. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
   2. to have adequate time and facilities for the preparation of his defence;
   3. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
   4. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
   5. to have the free assistance of an interpreter if he cannot understand or speak the language used in court

Of course not all the above are absolute, you cannot demand a QC to represent you at public expense on a shoplifting charge. Once again the watchword is ‘just’, you are entitled to what is ‘just’ – to know what you are charged with, to be advised and represented and to be assisted with any language difficulties. It really is pretty basic stuff.

The eight men alleged that they were arrested, held for a day and a night taken straight to court and convicted of heaven knows what without meeting a lawyer, with no proper interpretation and without being able to speak up for themselves. It was submitted that every single part of Art.6 was breached. Curiously in this case the fact that the process was so fast was in itself the cause of so much of the injustice.

In this country we now push trials forward to the earliest possible date. We have no difficulty with the principle save for the problem of inequality. With the strictures placed on legal aid and representation it can take months of application and appeal to be properly prepared for trial. Frequently this requires trips to court to beg for more time or, trips to the Legal Services Commission to beg for payment for work properly done. These are now routinely met with refusal requiring further arguments and appeals before a just decision is made. We recognise we must all use public money wisely (after all it is our money too) but, we must also use it fairly and with the increased power of the state and the increased technicality in policing, forensic and court process comes an increase in costs.

Submissions were made in respect of all the men:

1. they were given insufficient time to prepare their defences;
2. they were unable to instruct a lawyer effectively (they didn’t even know who the lawyer was);
3. they were unable to understand the proceedings through
4. they did not know or the nature of the charges against them.
5. relevant witness evidence were either not heard and/or were not fairly treated by the convicting court;
6. no reasons were given for preferring the evidence of the prosecution witness over that of defence witnesses.

Yesterday the truth finally emerged (only a year late). Mr Barwick had always said he was arrested for being drunk not for rioting. He was arrested 1½ miles away and 2½hrs before the violence erupted, he was therefore in police custody when it ‘kicked off’. He had two broken ribs care-of the arresting officers, was kept awake with no food/water for 30hrs and first saw a lawyer when she was on the other side of the court. He never met or spoke to her. Mr Parkes was arrested running to get away from the trouble caused by others. He too was denied water and sleep and, when finally given a drink was so dehydrated he could not keep it down. The court-appointed interpreter (one for 12 men) was inaudible and couldn’t speak English properly. In fact it turned out she was a local hair-dresser drafted in overnight. They were never told what they were charged with, never heard any evidence of what they were supposed to have done and were not allowed to give evidence or call witnesses who were with them (including in the case of Mr Barwick, 3 people he had spent the evening with and who saw him arrested).

An English police-officer PC Rutter saw the men when they were in Portuguese custody and observed the trial. He confirmed almost every aspect of the defence case. The physical distress of the men which he described as “shambolic”, the lack of contact with a lawyer – even in court he never saw the lawyer speak to the men. He volunteered the fact that Mr Barwick made it plain he was not present at the riot but this was never investigated and no witnesses were called on his behalf. No-one gave evidence in court to tell the judge what he was supposed to have done. No-one asked any questions on his behalf or suggested he was not involved. Mr Barwick was permitted a one-line statement to say he wasn’t there but was not permitted to give evidence or call witnesses – indeed witnesses who attended court for other men were arbitrarily dispensed with even though the lawyer and judge had no leave to dispense with them. Mr Parkes repeatedly asked what on earth was going on and he too was refused the opportunity to give evidence or call witnesses. The interpretation was merely a form of Chinese (Portuguese) whispers as the first in line told the next what may have been said. PC.R said that he just about understood some of the procedure and he ahs been in the police force for 26 years.

The Police pursued their application for an FBO for 12 months. Yesterday at the half-way stage of the hearing at Uxbridge Magistrates Court, Mr Day DJ threw the case out upholding almost every point raised by the men. All eight men were subjected to a process that was not compliant with Art 6. There were ‘substantial breaches’ which meant that the original trial was unfair, the conviction unsafe and, he refused to make any FBOs on the basis of a hearing that was a travesty not a trial.

The District Judge made the following comment “I start by stating that it is a salutary experience to criticise a foreign jurisdiction’s procedure…”.

He found as a fact that

1. There was no clarity in what they’d been charged with
2. One interpreter acted for 12 men.
3. There was no disclosure before trial
4. There was no opportunity to consult with lawyers pre-trial
5. There was no opportunity to instruct lawyers during trial
6. There was no opportunity to ask questions of witnesses
7. There was no opportunity for the men to give evidence
8. Not all witnesses of fact were called

He concluded:

“The trial was not Article 6 compliant and the breaches were substantial. I am not prepared to make a FBO.”

Older men lost their jobs. Younger men lost their University places. All were vilified by Government and hounded by the press. They will get no apology and no compensation. Nor will their families and friends who had to suffer with them. It is only now when they are properly represented by proper lawyers doing a proper job in a proper court that justice is served and the truth emerges. Now starts the real task of clearing their names either in Portugal or if as we expect that fails, in Europe.

Of course finding the truth is not cheap and like any other tax-payer we want value for money. The alternative is cutting back, cutting corners and cutting-out the truth. We cannot believe that that is what the public wants but it is appears to be what the Government intends to deliver. Once we set our foot on that path we may as well just send the innocent to prison as happened here.

“This is what we fight for, this is why we do our job. Mr Barwick was wrongly accused, wrongly convicted and wrongly vilified in the press. I am saddened that it has taken a year for him to clear his name, something he could not have done without legal aid. I hope this shows that even in the current climate of criticism and cut-backs justice can still be done but, I wonder for how much longer.” - Jon Whitfield

“The treatment of Mr Parkes was nothing short of a disgrace. Without recourse to free representation Mr Parkes would be in no position to challenge the Portuguese conviction in Europe as he intends to do.” - Liam Walker

Related Information

• Football Banning Orders (Home Office)
• European Convention on Human Rights (Council of Europe)
• Legal Services Commission
• Deported fan protests innocence (BBC News)

22 July 2005

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