Cassandra Voices

Tag: Lord Bingham

  • Public Intellectuals: Leonardo Sciascia

    Corruption is worse than prostitution; the latter might endanger the morals of an individual. The former invariably endangers the entire country.
    Karl Krauss

    Leonardo Sciascia or Shaza was an Italian or rather Sicilian political journalist, an elected radical member of the Italian parliament and the most prominent anti-mafia and indeed anti-corruption critic of his time. He was also a voice of moderation in a sea of extremism in the 1970s and 1980s.

    All this features in his famous detective novels which are really anti-detective novels or works of political observation. Along with his masterful analysis of the assassination by the Red Brigade of the Christian Democrat conciliator and former Prime Minister Aldo Moron – a book not unlike the equally masterful News of a Kidnapping (1997) by Garcia Marquez concerning Colombia in the era of Escobar – his oeuvre offers a sustained critique of Italian and Sicilian political and cultural life.

    This reflects the complex interstices of corruption and collusion between extreme-right-wing Catholicism, organised crime and the shadowy self-protection syndicates of big business, politics, as well as a malevolent state bureaucracy deeply embedded in all of the aforementioned. His books also demonstrate the lethal effects of innuendo, smoke, mirrors and the nefarious rumour mill.

    You could cut and paste these, change the names, and apply them to Ireland, the U.K. or U.S. or any country where extreme neo-liberalism or Christian evangelism holds sway.

    Sciascia was a specialist on the mafia, and he demonstrated how they kill and destroy. First, they isolate and disempower and then they denigrate. Often, demonising or scapegoating their prey. And those who seek to investigate them – such as the anti-corruption Sicilian Judge Giovanni Falcone – who act on principle are destroyed. This is exquisitely detailed in Equal Danger (1971), his best book.

    Illustrious Corpses

    In Sciascia’s fiction, it is the detective, not the murderer, who is isolated and suspected, suffering the same fate as whistleblowers around the world today. It is a post-truth doppelganger of good and evil. Thus, those who oppose corruption in the words of the film adaptation of his book become Illustrious Corpses [1976].

    In fact, his current heir, as the anti-corruption conscience of Italian letters, Robert Saviona was placed under police protection after his exposure of the Neapolitan mafia in Gomorrah (2016), and his fabulous text Zero Zero Zero (2013), which was made into a T.V. series that highlights how the practices and modes of organisation of the drugs trade are mirrored in corporate organisation, and vice versa. The same brutality. The same hierarchical structure. The same partnerships.

    Mr Saviona was recently prosecuted by Meloni for calling her a bastard over her immigration views. A cautionary tale perhaps for the revival of the hate crimes bill in Ireland, and our anti-immigrant stance? Who would dare call Jim O’Callaghan a bastard?  I doubt he would sanction a prosecution, but who knows as the centre-right moves even further to the right, just as Starmer has the taken the so-called Labour Party.

    In Ireland, anti-mafia or anti-corruption activists face an uphill not impossible struggle in our present universe. Witness the case of Jonathan Sugerman.

    In a world of statist and corporate authoritarianism, what Eisenhower historically called (in interview with the late great Walter Cronkite at the end of his Presidency) the military industrial complex poses an existential threat to humanity. Meanwhile, on X, Elon Musk perversely uses freedom of speech to undermine the civic space.

    Indeed, Habermas‘ ideal of communicative action is poisoned by misinformation undermining the democratic rights and entitlements of all by pandering to far right-wing extremists and racists and WOK simpletons.

    The film Illustrious Corpses. (1976) begins with the murder of Investigating Judge Vargas in Palermo, amidst a climate of demonstrations, strikes and political tension between the Left under a Christian Democratic government. The detective Rogas is assigned to investigate the case and no sooner has he started then two more judges are murdered.

    He is encouraged ‘not to forage after gossip,’ but to trail the ‘crazy lunatic who for no reason whatsoever is going about murdering judges.’  He focuses mistakenly on a suspect leftist wrongfully convicted by the judges. Whereupon he is advised by the President of the Supreme Court, played in sinister fashion by Max van Sydow, that the court is incapable of error.

    At a party he is advised there will be a coalition of the Communists and the Christian Democrats, and that the murder of the judges as well as Rogas’s investigations were causing tensions, and justify the prosecution of the far-left groups. Rogas also discovers that his suspect, Cres, is present at the party. Rogas meets with the Secretary-General of the Communist Party in a museum. Both are killed.  And the murder is blamed on the innocent detective.

    The film ends with the dictum: ‘The people must never know the truth?’

    Giovanni Falcone and Paolo Borsellino in March 1992. Two assassinated judges.

    Equal Danger

    It is this kind of disrespect for the truth that has led us collectively, in my view, into the present quagmire. The gatekeepers of the system must be above reproach, and the exposure of corruption may lead – as it did to the Italian judge Falcone – assassination by the mafia, although in more ‘civilised’ countries this may consist of a fabricated charge, or some form of propaganda-by-omission where a critic of government policy is no-platformed in the media.

    The salient message of the book Equal Danger is that the system breaks down when one of the canonical features of the Rule of Law is eradicated. This includes when the gatekeepers are no longer independent, as Lord Bingham suggested in his canonical text on The Rule of Law.

    At the core of the ideal of the Rule of Law, the legendary Law Lord and jurist Bingham, suggests is the idea ‘that ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred, and without exceeding the limits of such powers.’ Sadly those conditions have been undermined in many jurisdictions.

    Ironically in the end, Sciascia attacked crusading judges for putting civil rights at stake in an article, while on his deathbed, that irredeemably punctured his reputation: attacking Falcone as a celebrity judge which was ludicrous and frankly in bad taste.

    First Edition.

    Anomie

    Another Sciascia theme, particularly evident in his most famous text, The Day of the Owl (1961)’ is the Sicilian trait of anomie or indifference, implying that pursuit of principle, justice and the truth are all a waste of time.

    In controlled societies, such as Italy or Ireland, Sciascia’s books demonstrate the lethal effects of innuendo, smoke, mirrors and the nefarious rumour mill, along with the collective trivialisation that amounts to a resigned admission that the victims of crime had it coming to them in some obscure way. This betrays a latent desire for yourself not to go the same way. What C.S. Jung referred to as the shadow.

    The Day of the Owl also brilliantly shows that to succeed in a mafiosi culture you must pay the protection money or pizzo; just as in Mario Puzo’ s vastly underrated The Godfather (1969) you must kiss Don Corleone’s ass. An understanding of patronage and feudalism remains crucial in our time.

    That book also canvasses another theme of distraction central to our age: the playbook of the false sex allegation. The virtuous are undermined by the crime passional, the allegation of sexual impropriety, including child abuse. Those who carry out the task appear sanctimonious and mask political persecution, often framing their victims. A favourable appointment follows. Robespierre would approve.

    In the context of false allegations Roy Cohn, Trumps lawyer, was barely twenty-four years old when he played perhaps the central role in the Rosenberg’s’ espionage trial, relentlessly and vindictively lobbying the judge for their execution. Both were found guilty of passing information to the Soviet Union and electrocuted at Singh Sing in 1953.

    It was quite clear that this was utterly malicious in that he knew Ethel Rosenberg was innocent but used forged documents, perjured evidence and the art of persuasion – in that he believed her indictment would force Julian Rosenberg to reveal his espionage sources.

    Well whistleblowers and anyone accused of sedition, espionage or treason also come from the fascist playbook. That is now Trumps agenda for even academics and students.

    And people forget. Memories fade. The shadow play moves on. Thus, Sciascia a proper Sicilian communist has much to say about the rule of law and not just in Italy. His work is crucially relevant to our time.

    Roberto Calvi

    Roberto Calvi

    Close to my Chambers is Blackfriars Bridge where Roberto Calvi the former head of the Vatican bank was found dangling. Sciascia’s acidic response was: ‘Why was a good mystery preferred to finding out the truth?’

    But the truth depends on memory, pattern recognition and a sense of history, and as Milan Kundera – as good an exposer of corruption as Sciascia in his way – remarked, the first way of liquidating a people is to destroy memory, or the lessons of history.

    Thus, in contemporary Italy the mayor of Montefalco banned cricket in a village played by immigrants near Joycean Trieste, forgetting that AC Milan was founded as a cricket club. And lest we forget that in the jaw-droppingly beautiful village of Sant Angelo in Ischia Italy gave refuge to one of the great artists and enemy of Pinochet, the Chilean Pablo Neruda, though the film Il Postino (1994) fictionally suggests it was nearby Procida!

    Thus, as I enthused about the country on a train from Perugia, after viewing the Fra Angelica painting Resurrection, an Italian lawyer said yes but what about the government? He reminded me not just about Berlusconi, but Andreotti so closely connected with the corruption I have referred to – Il Divo (2008) to reference Sorentino’s film about him. Surviving into his nineties, he was the reptile like crystallisation of the world’s corruption. A man who sent people to their death via his associations with the mafia, but a pious Catholic. Sound familiar?

    Now let us pave a path for a new resurrection to create a better world based on the Rule of Law and moderation, whether secular or Christian. Let us wonder if the good man Jesus would stand for what has been done and is being done in his name.

    The message of our sceptical and brilliant communist Sicilian friend is most relevant to this age. Keep to the truth and let the heaven’s fall.

    Title Image: Paolo Borsellino with Leonardo Sciascia (Creative Commons).

  • Disturbing Developments in Criminal Justice in Ireland

    All persons and authorities within the state, whether public or private, should be bound by, and entitled to, the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.
    Lord Bingham, ‘The Rule of Law‘, Sir David Williams Lecture, Cambridge, 2006.

    I have written extensively about the whittling away of due process in Ireland. This is derived from Article 38 of the Constitution, which states: No person shall be tried on any criminal charge save in due course of law.

    In 2017 Supreme Court Justice Gerard Hogan at least had the courage to argue that the Irish Courts have, in effect, failed to enforce due process, constitutional rights in Ireland for the past thirty years. ‘Moves’, he said, to reduce the scope of ‘the most fundamental constitutional safeguard of all‘ — the habeas corpus guarantee in Article 40.4.2 – ‘speaks volumes regarding the prevailing constitutional zeitgeist.’ That zeitgeist has only become more illiberal, especially with the advent of emergency powers in response to Covid-19.

    Indeed, we have no equivalent to the UK’s Police and Criminal Evidence Act 1984 giving statutory protection to anyone suspected of a crime.

    The particular violations of due process have been exposed in the J.C. Case (2015) where the Supreme Court – notwithstanding what was probably Adrian Hardiman’s most brilliant dissenting judgment – effectively allowed the police to characterise as an accident, what seems to have been a purposeful and deliberate breach of constitutional rights.

    We have also witnessed the subordination of privacy rights to considerations of public order in the Dwyer Case on appeal to the Supreme Court. There, the Court simply sidestepped the State’s breaches of directly applicable EU data protection legislation, rendering privacy rights a dead duck.

    But if these developments aren’t sinister enough, consider what is happening now for the liberty of the subject.

    Adrian Hardiman.

    In Camera Proceedings

    The term in camera in legal and juridical terms is about a hearing being held in private. It is a pragmatic feature of civil or industrial processes, such as patent violations or family law proceedings. It has various implications, including that the names and identities of the parties to the suit are kept out of the public gaze, and reporting restrictions are in place, including press coverage and conventional law reporting. A judgment could be published, and context made clear, but details may be kept out, redacted or anonymised.

    The intra-jurisdictional consensus – a fundamental principle of international law – is that when a process or a piece of legislation or an executive decree is adjudicated without there being independent representation or scrutiny it is of dubious authority, as it has not been adequately challenged.

    In camera proceedings can be a shortcut to secretive laws, which were even condemned by the Nazi jurist Carl Schmidt. Schmidt’s view is echoed in the minority report on the future of the Special Criminal Court.

    So-called emergency powers have a nasty habit of becoming permanent, everywhere. In the face of opposition, however, the UK government repealed its controversial law, giving police the right to apprehend people suspected (hence ‘sus’) of ‘intent to commit an arrestable offence.’

    Within Lord Bingham’s summary of the Rule of Law is the idea that the law ‘should be publicly administered in the courts.’ It is crucial for any democracy that all judgments become a matter of public record or, failing that, only partial elements are excluded, and then only by implication, after independent representations of counsel.

    This is violated when in camera proceedings occur. Justice, as Bingham said, cannot be achieved behind closed doors.

    The current Minister for Justice Helen McEntee TD has, nonetheless, obtained a High Court order from Justice Owens requiring telecommunications service providers to retain certain data – including user, traffic and location data – for a period of twelve months, for the purpose of safeguarding the security of the State.

    The Communications (Retention of Data) (Amendment) Act 2022 came into operation on June 26, 2023. Under the terms of the Act, the Minister for Justice must have been satisfied that there exists a serious and genuine, present or foreseeable, threat to the security of the State.

    She also, presumably, had regard to the necessity and proportionality of the retention of Schedule 2 data, and how this could potentially impact on the fundamental rights of citizens under the Constitution. Justice Owens was obviously persuaded by her arguments, which are not in the public domain, for reasons of state security; do you see where this is going?

    It should also be noted that the Minister consulted with the Garda Commissioner prior to making the application. The Act was, in effect, a transposition of an EU Directive, but no scrutiny has been permitted. No independent counsel. No counterweight.

    So what could this threat to the security of the state amount to? Minister McEntee also recently stated that Sinn Féin presents a threat to the criminal justice system because they timorously suggested adopting suggestions of the review group on the Special Criminal Court.

    The Yam Case of 2020, which Geoffrey Robertson QC litigated before the ECHR under Article 6, clearly identified that even partial exclusion under the in camera rule and partial reportage invites scrutiny.

    Thus, T.J. McIntyre from the Sutherland School of Law in UCD argued that Ireland’s new mass surveillance regime is ‘certain’ to be challenged in the European courts. He said the government’s decision to seek a High Court order was made ‘behind closed doors, without any consultation with the data protection commissioner, with civil society, or with the industry’ and, importantly with no detail provided on the supposed national security threat.

    In a damning assessment he stated:

    The 2022 Act has to be treated as of no legal value … You can’t have a measure that’s supposed to authorise mass surveillance of the entire population, and be the basis for criminal investigations and prosecutions for years to come, where its foundation is so uncertain. It’s grossly irresponsible to do that.

    Thomas Bingham, Baron Bingham of Cornhill 1933-2010.

    Special Justice

    The Special Criminal Court is a three-judge criminal court, convened without a jury to avoid any potential intimidation of its members. It is enabled by the Offences Against the State Act, the first of which was published in 1939 to prosecute members of the IRA and declare any similar organisations unlawful. More recently, the Court has been used to deal with the deadly rise in gangland crime and organised criminal syndicates.

    The legislation, and its Court, have been criticised by Amnesty International, the United Nations and the Irish Council of Civil Liberties over the last number of decades and at its inception by Mary Robinson.

    Most of the recent review group concluded that the use of a non-jury court is ‘justified’ and that the court is needed to counter ‘a real risk to juror intimidations.’ However, the review added, contradictorily, that there is ‘an absence of concrete evidence’ on the nature and extent of the risk posed to jurors today. The review added that a non-jury court should only be used in ‘an exceptional case.’

    One way that the review recommended this should be done is through abolishing ‘scheduled offences’ – where certain offences are automatically tried by a non-jury court – and placing the decision in the hands of the Director of Public Prosecutions (DPP), which, it should be noted, is a political appointment.

    As an additional safeguard, the majority review recommended the appointment of a judge to review whether the correct procedure has been followed by the DPP, and whether the decision had been made based on of the evidence heard in that case alone. This would mean, under the new Court, that the DPP would decide whether it is suitable that a citizen, who stands accused of a crime, be tried in a non-jury court based on the evidence in the case, regardless of the case’s threat to national security.

    Accompanying the majority review, there is also a minority review which argues that the establishment of a permanent non-jury court is ‘constitutionally inappropriate’. The minority review said: ‘Just because something can be done does not mean it should be done, we are in danger in all sorts of way as Iseult O’Malley of the Irish Supreme Court said of becoming ‘overly habituated to the abnormal.’

    Commenting on the recommendation to replace the SCC with a new Special Criminal Court Minister for Justice Helen McEntee said that the Special Criminal Court eliminates the very real risk to jurors and potential jurors posed by subversives and organised criminal groups. She said that the recommendation from the review group ‘requires serious consideration’ due to the importance of the Special Criminal Court and its place in the Irish judicial system.

    Minister for Justice Helen McEntee.

    ‘Belief Evidence’

    As well as non-jury trials, the SCC has special powers to accept ‘belief-evidence’. This allows the belief of a Garda Chief Superintendent that a person is a member of an illegal organisation to be used and accepted as evidence of that person’s membership. While the majority’s report recommends that new legislation be created to provide more regulation around the use of non-jury courts, they have deemed the continuation of belief-evidence ‘appropriate’.

    While the report says that belief-evidence can continue to be used, it adds that someone must not be prosecuted ‘solely on the basis of that evidence.’ There needs to be corroboration. The minority simply notes that the UK police did not need belief evidence to prosecute and recommends its abolition.

    Last month, Minister Simon Harris, who took over as Justice Minister while McEntee was on maternity leave, received approval to propose the resolutions to extend the legislation. A Government spokesperson said Harris considered that there remained ‘a real and persistent threat from terrorist activity, primarily from so-called ‘dissident’ republican paramilitary groups.’

    The criminal court of justice, Dublin. Daniele Idini/Cassandra Voices

    Conclusion

    We appear to be witnessing a serious regression in the Rule of Law in Ireland, where unspecified threats to the state are decided in camera, and an extension to the use of judges without jury with police belief evidence continuing to be accepted. All of this twenty-five years after the signature of the Good Friday Agreement which effectively ended the Troubles.