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Joined: 25-November 05
John Gardner is the Professor of Jurisprudence at the University of Oxford, and occasional Visiting Professor at Yale Law School.
Like many of my fellow-Londoners I am less alarmed by suicide bombers than I am by the police’s Mossad-style execution of a ’suspect’ (who turned out to be a completely innocent passer-by) on Friday 22 July. This is not because we are at any greater risk of death at the hands of the police than at the hands of the bombers. (Both risks are pretty tiny, but of the two the risk posed by the police is clearly smaller). Rather, it is because, all else being equal, it is worse to be killed by one’s friends than by one’s enemies, and worse to be killed by people in authority than by people not in authority.
Here are some other important things to remember in thinking about the police actions of 22 July:
(2) There are special police powers to arrest and search. But there is no special police licence to injure or kill. If they injure or kill, the police need to rely on the same law as the rest of us.
(3) The law allows those who use force in prevention of crime to use only necessary and proportionate force. Jack Straw and Sir Ian Blair say that officers are under great pressure. But this is no excuse. In law, as in morality, being under extra pressure gives us no extra latitude for error in judging how much force is proportionate or necessary. R v Clegg  1 A.C. 482.
(4) Arguably, the police should be held to higher standards of calm under pressure than the rest of us. Certainly not lower!
(5) The necessity and proportionality of the police use of force is to be judged on the facts as they believed them to be: R v Williams 78 Cr. App R 276. This does create latitude for factual error. In my view it creates too much latitude. The test should be reasonable belief. The police may be prejudiced like the rest of us, and may treat the fact that someone is dark-skinned as one reason to believe that he is a suicide bomber. But in court this reason should not count.
(6) It is no defence in law that the killing was authorised by a superior officer. A superior officer who authorises an unlawful killing is an accomplice. R v Clegg  1 A.C. 482.
(7) The fact that those involved were police officers is irrelevant to the question of whether to prosecute them. It is a basic requirement of the Rule of Law that, when suspected of crimes, officials are subject to the same policies and procedures as the rest of us.
(8) Some people say: Blame the terrorists, not the police. But blame is not a zero-sum game. The fact that one is responding to faulty actions doesn’t mean one is incapable of being at fault oneself. We may blame Tony Blair for helping to create the conditions in which bombing appeals to people, without subtracting any blame from the bombers. We may also blame the bombers for creating the conditions in which the police act under pressure, without subtracting blame from the police if they overreact. Everyone is responsible for their own faulty actions, never mind the contribution of others. This is the moral position as well as the position in criminal law.
Proposed new anti-terrorist offences: The one that has been variously labelled as ’condoning’ or ’glorifying’ or ’indirectly inciting’ terrorism gives cause for concern. It is already an offence to incite another person to commit an act of terrorism (Terrorism Act 2000 s59). In which respects, we may wonder, is the scope of this offence to be extended? The word ’indirect’ suggests that they mean to catch those who incite the s59 inciter. But under general doctrines of English criminal law it is already an offence to incite the s59 inciter. So one suspects some other extension of the existing offence is being cooked up. Is the plan to criminalise the mere defence or endorsement of a terrorist act? If so we are in for trouble. Terrorism in English law is defined to cover all modes of political violence, however trifling. Are academics and commentators no longer to be permitted to defend any political violence? Is Ted Honderich’s Violence for Equality, or Peter Singer’s Democracy and Disobedience, to be put on the banned books list? The only thing protecting these books at the moment is that, in the eyes of the law, an argued endorsement is not an incitement. The thought that the government may be thinking of changing this should send a shiver down the spine of anyone who still has a spine (damn few).
Lord Hoffman in A v Home Secretary  2 WLR 87: ’The real threat to the life of the nation ... comes not from terrorism but from laws like these.’ Quite right. Some extra risk of being blown up by fanatics on the way to work is one of the prices we pay for living in a free society. Let’s make sure we keep it that way."
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Joined: 25-November 05
Perhaps Professor John Gardner was right to be alarmed:
MOSSAD ASSASSINS RETURN TO BRITAIN AFTER 17 YEARS' ABSENCE TO 'DISABLE' THREAT FROM ISLAMIC TERRORISTS
May 11, 2003 Sunday Express - Exclusive by Gordon Thomas, Tim Shipman and Yvonne Ridley
MOSSAD has sent four of its top assassins to Britain, provoking fears of a violent showdown on the streets with Islamic terrorists. The kidon assassination squad has joined 15 handpicked katsas - Mossad's regular field agents - in the UK to "carry the war to our enemies", according to senior Israeli sources. Their brief is to "disable" any of the "close to 50" British Muslims that the extremist Islamic group, Al-Muhajiroun, last week boasted were "primed and ready" to carry out suicide missions similar to the one in Tel Aviv carried out by a British passport holder.
An MI5 source said: "In Mossadspeak 'disable' means taking them out permanently. We know from past experience the kidon can make murder look like an accident. It is their speciality."
Two of the kidon sent to Britain are understood to be women trained in the art of the honeytrap.
Former Mossad chief Meir Amit said: "Sex is a woman's weapon. Pillow talk is not a problem for her. But it takes a special kind of courage to sleep with the enemy."
Rafi Eitan, a former director of operations, said: "We are like the official hangman or the doctor on death row who administers the lethal injection. We are simply fulfiling a sentence sanctioned by the prime minister of the day".
Since he has come to office Israel's Prime Minister, Ariel Sharon, has "sanctioned" a number of assassinations of terrorists who could not be brought before Israeli courts. The decision to send in Mossad came after urgent discussions between the two governments last weekend, which were described as "heated". One senior Israeli minister accused Britain of becoming a "haven for terrorists" during a hostile telephone conversation. Later, Mossad's new chief, Meir Dagan, called Eliza Manningham-Buller, head of MI5, and told her that his men would co-operate closely with her agents. The next day, katsas from Mossad headquarters in Brussels had flown into Heathrow, followed 24 hours later by the four-man kidon from Israel. Supporting them are Mossad yahalomin, who are specialists at bugging phones and buildings. Israel has made it clear that it fears Britain has become a haven for extremist preachers.
British intelligence officers are angry that Mossad's arrival in force in Britain for the first time since 1986 undermines their independence and casts serious doubts on their ability to deal with the enemy within. Their worst fear is that innocent civilians could get mixed up in an assassination attempt or a botched kidnapping. But they also fear that the Mossad incursion into Britain is an attempt to embarrass the Labour Government, which has upset Mr Sharon through Tony Blair's stern advocacy of the Middle East peace road map.
A British intelligence source said: "The whole purpose would be to neutralise Britain and eliminate Blair from taking part in the talks on the grounds his country is harbouring terrorists. "Sharon gets rid of UK interference and is able to shoehorn Mossad in to Britain again with the blessing of the Government." The Israeli embassy in London denied Mossad is on British soil and praised the role of the British intelligence services.
A spokeswoman said: "Britain has offered full cooperation in the investigation of the suicide bombings. We are very satisfied, we have full confidence in MI5 and MI6, we have very good relations."
The security situation will form a key part of talks this week between Foreign Secretary Jack Straw and his Israeli opposite number Silvan Shalom. These will be the first toplevel talks with Mossad on British soil since Margaret Thatcher ordered their operations to be shut down in 1986 after a "honeytrap" operation to kidnap Mordechai Vanunu, the whistleblower who revealed secrets about Israel's nuclear arsenal.
In Britain, the kidon are banned from using guns or explosives. But they are equipped with long and short-blade knives, and piano wire to strangle their victims.
Victor Ostrovsky, a former member of the assassination team, said: "Strangulation if the target is to be killed at night. Sometimes an aerosol or a syringe in the jugular to deliver a fast-acting nerve agent that kills and leaves no trace."
In the past, Mossad has killed 'terrorists' in Paris, Frankfurt and other European cities.
THE legal and ethical roles of those in uniformed public service were put under the spotlight at the University of Chester’s annual law lecture.
John Gardner, professor of jurisprudence at the University of Oxford, was the guest lecturer for this year’s event, which was hosted by Chester Law School at the institution’s Chester campus.
His lecture, entitled The Electrician’s Tale, opened with the story of the police shooting of Jean Charles de Menezes and considered issues of law and morality surrounding the responsibilities of those in uniformed public service.
Now in its third year, the law lectures have attracted an impressive calibre of speakers, with Lord Justice Maurice Kay addressing last year’s event, and the Rt Hon Baroness Hale of Richmond – the only female judge in the Supreme Court.
Professor Roger Kay, head of law at the university, said: “It was a great privilege to welcome Professor Gardner to the university.
“His talk touched on the concept of ‘criminals in uniform’. By exploring some of the more divisive issues surrounding the Menezes case he raised some very interesting legal and moral questions.”
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