A critical discussion and analysis of 'The Rule of Law'

Paul B.

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A critical discussion and analysis of 'The Rule of Law'

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Abstract

Central to the general idea of the Rule of Law is the specific intention that it involves the rule of the law rather than the rule of the people. Judges hold a position of central importance in the relation to the concept of the Rule of Law. They are expected to deliver judgment in a completely impartial manner through a strict application of the law, without allowing their personal preference, or favor to any party of the action in their decision .

Nevertheless, decisions in the criminal process system often involve conflicts; the best framework to analysis the criminal justice system is the work of Herbert Packer, developed in the 1960s. Packer suggested that there were two models of evaluation, the Crime Control and the Due Process model. The Crime Control system is based on the suggestion that the criminal conduct is the prime function.

Introduction
Packer contrasts this with the Due Process model
The crux of the prosecutions case
The prosecution barrister, William Boyce QC
The David Shayler case vs. the Burrell trial
1. The public had a right to know about certain actions of the MI5
2. David Shayler's lack of defense in law in disclosing information to the public
3. Responsibility for those who would be injured if he did not take preventative action
Dame Stella Rimington: It is wrong to make too sharp a distinction between police detectives and spy
The true relationship between the police and the Crown Prosecution Service
Conclusion

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Extract

[...] David Shayler believed that the public had a right to know about certain actions of the MI5, but in contradiction, the government, in common with its predecessors, insists that the security and intelligence services must be shielded by total security if they are to function effectively. rejects any system of outside, independent, scrutiny on the grounds that outsiders whether MP's, privy councilor or judges could never be in a position to make judgment about the rights and wrongs of why and how the security services acted as they did in a particular case'[9] The government argued over the years that an independent body which was allowed into the ‘barrier of security' would have no effective function as it would not be able to disclose anything it had learned so would not be economically liable to introduce such an agency. [...]

[...] Police therefore frequently construct cases and therefore the screening of the case is obligatory the role of the Crown Prosecution Service who do not have the capability to reconstruct accounts of cases that they are given and weigh it against the ‘probability of conviction' as shown in the Burrell case with a skillfully constructed case, the Crown Prosecution Service will see no-lines of re-investigation as there are no loose ends, the version on offer is of course the manipulated version of events as constructed by the police and may not be the true course of events. [...]

[...] Much of what had already been published; he argued was very general and did not pose any harm to the public.[15] However he thought some of the material in the case of ‘Case that made me Quit' might be of use to a hostile power. He concluded that an injunction would cause no great harm to the public. This was continued by Mr. Justice Hooper on 4 September 1997. It also included an undertaking that all documents and other records should be handed over, this was argued in front of judge Inman at Middlesex Guildford crown court on 8 September. [...]

[...] The officers regard analysis and comprehensive statements more important than preventing or solving a crime. For MI5 to play a role in criminal investigations it needs to be accountable. An independent centralized agency staffed by MI5, police and special branch would be welcome by many, free of old prejudices and bureaucratic restraints. The government has hidden behind a smokescreen of security as repeat players[19] instead of confronting the problems that surround the security service they have been able to prevent legal change. [...]

[...] The clear message behind this argument against a parliamentary oversight committee is that no one can be trusted with any information about the activities of the security service and indeed they might not be aware of the significance of any such information and it could be leaked to score partisan points.[10] David Shayler had no defense in law in disclosing information to the public, but in his defense he claimed that his disclosures revealed that MI5 had in the past acted incompetently and that he needed to reveal this information so that MI5 would be forced to improve their working practices so that they would effectively protect the public in the future. [...]

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