Now of course we live in perilous times worldwide for the justice system and one can have far too much faith in legal processes to protect us as the rule of law and the cause of human rights diminishes and the gatekeepers have to enforce ever more draconian legislation. Constrained by the literal application of rules they often disagree with in civilised societies and by a worldwide society descending into borderline anarchy.
In this respect Jeremy Bentham developed the model prison The Panopticon of which Kilmainham in Dublin was an example to enforce 24 hour surveillance. not ultimately adopted due to its inhumane qualities.
Now modern society has become a worldwide Panopticon, as Foucault saw happening, and as the people of Cork in the peaceful protest last Saturday expressed beautifully.
A collective dehumanisation has undermined liberty, movement, privacy and indeed livelihood rights. All that is left for many people is the voice of dissidence. The cry above the suffering, as Leonard Cohen remarked.
But it has been coming for a while in Ireland.
The slippery slope for example of the negation of due process in Ireland began, in my view, with the Proceeds of Crime Act in 1996 which was upheld despite the layers of ambiguity it creates and its disproportionate effect on ordinary people.
The act with its negation of proof seeking processes also invested far too much faith in the ethical integrity of the police which also led to the appalling JC case which allowed the police to rely on a good faith mistake when the legal realist perspective is that in practice this will mean them calling a mistake that which was an act of deliberate criminality on their behalf.
The Charleton Tribunal and The Fennelly report papered up wholesale police malfeasance. Due process has in effect been subverted by the Irish state and the present pool of judges in criminal justice terms and we have now created a police state. The virus just caps it off.
A larger question thus is whether a constitution or a bill of rights or even Bentham’s preferred legislation is at all meaningful and operationally effective if the culture and civility of the society has broken down and where the virus has sacrificed the cause of liberty at the altar of an over stated need for security.
Where rights no longer are meaningfully protected against the might of the Leviathan seeking to secure compliance and a docile uncritical population.
In practice in the UK rights are often taken more seriously, thus I was recently able to save someone from a prison sentence and it was suspended given that his underlying health condition was such that there would be a real danger to his life under Article 2 of The Convention.
But The UK has also some disturbing trends. The Blairite bad character reforms have been a disaster allowing in amorphous bad character not just conviction but misconduct and engendering an almost automatic conviction in a sex case in particular.
The penalisation of lifestyle is also evident in the UK in anti social behaviour orders where a triage of state authorities goes after a person no longer deemed acceptable with the risk of homelessness on a lower standard of proof. Disapproval criminalised.
In the UK, South East London is becoming like The South American film “Pixote” (1980) where 5-year olds are radicalised. An urban transplantation from the third world to the first world is evident with younger gangs also trafficking the drugs across county lines and to counteract same super injunctions restraining behaviour with the possibility of committal in prison so called drug injunctions.
The drug problem in Dublin was in effect a failure of urban planning putting people in tower blocks in Ballymun helped create a drug infested inferno and a failure of proper levels of opportunity.
Draconian legislation fails to tackle the root of the problem. Roberto Saviano the expert in the Italian drug trade and his book “Gomorrah” (2006) and subsequent book called “ZeroZeroZero (2016) makes the point that the drugs cartels in ruthlessness, the Omerta code and indeed drug economics, are a model for corporate business organisations in general.
The international vultures of Canadian and American origin are destroying Ireland and other countries and being upheld by the courts where in the absence of housing and livelihood opportunities or rights people stand to be evicted in an age of pandemic. The gangsterism of Goldman Sachs is the same morally but not legally as Pablo Escabor as vested interests or self enriching corporations stagger the law in their favour.
Immigration courts which I have frequently appeared in the UK are more likely than Irish immigration tribunals to accept, despite reciprocal extradition warrants, a legitimate argument that in the light of false reassurances of prison conditions or survivability someone should not be extradited. But the acceptance of rubber stamped reports from other jurisdictions often does not probe in depth the quality of those justice systems.
There is also in the UK the increasing acceptance of detention centres that are dehumanised for migrants and of course quarantine centres for returnees. A further slippery slope ushered in by the virus. Worldwide detention with vaccine passports to come.
Zuboff in her book The Age Of Surveillance Capitalism on the eve of the virus shows how now our very identities are going to be mined as Facebook does for commercial gain and the virus has led to ever greater wealth to Facebook and Amazon as we work remotely. Small businesses are being destroyed and all the people of Cork can do is protest to survive.
Very few criminal trials are in fact going ahead in the UK and largely only those that cross the urgency criteria. More to the point the swearing of and accommodation of jurors is infinitely problematic not least in that social distancing has to be observed and courts made covid compliant.
So as neo liberal meltdown reaches its dark capitalist apotheosis I was sitting behind a plexiglass window in a courtroom. It is an eerie experience like being in the command of a TV studio or the front of a plane. Cylindrically surrounded.
More to the point the jury also encased in individual plexiglass clam shells. Very much like Maximillian Schell in the film on Eichmann in his glass booth. The jurors, not just the defendant, are covered on all sides.
The imposed confinement of all, of course, shows a tendency to the corralling of individuality and the division of the world into safe and unsafe spaces. The scope for individual freedom and liberty is shrinking…
Directly opposite my courtroom in Lewes, Sussex is the famous The White Hart Lane Pub and further up the high street a residence where Thomas Paine drafted the Rights of Man. Thus the covid laws nationally and internationally are restricting Paine’s rights.
The extension of surveillance is also part of matters and is now proposed in the UK to extend to terrorism and a proposed new Bill suggests the most draconian measures. Potentially the new Terrorism Prevention and Investigation Measures act could see suspects not prosecuted but subject to restrictions on travel and accommodation for the rest of their lives.
TPIMs are used against those who cannot be prosecuted, but breach of a TPIM is a criminal offence allowing for imprisonment. So in principle this could involve lifetime detention on “reasonable grounds” for suspecting someone is or has been involved in terrorist activity. Thus in cold terms lifetime detention is based on suspicion or subjective reasonableness.
At one level the provisions mark a return to the draconian control orders – a form of house arrest – in place previously. Introduced by Tony Blair’s Labour government in the Prevention of Terrorism Act (2005) which were deemed contrary to article 6 of The European Convention.
The ECHR in fact rightly so specifically prohibits the idea of preventative internment. Any detention must be for the purposes of bringing a person before a competent legal authority according to Guzzardi  3 EHRR 33.
Guzzardi was a Mafioso with a substantial criminal record who was charged with various criminal offences and ordered to reside in the Island of Asinara while he awaited trial. The court evaluated the facts and concluded there was a deprivation of liberty and a form of privative detention in that he was being detained not as a punishment for a specific offence but a preventive measure taken on the strength of indications of a propensity to crime.
The crucial point also is that we all are in covid times all preventatively restricted and detained in coronovirus panopticon and the justification of more publique is very dangerous when disproportionate measures are introduced to counteract a wildly overstated emergency and pander to a worrying trend of compliance. Compliance for the sake of compliance and security.
Another worrying trend is that crimes which were once the stuff of Science Fiction are now increasingly in evidence throughout the globe.
In India thinking an anti-governmental thought is a criminal offence in certain provinces. In Ireland a suggestion was made that vigorous and hurtful criticism of a politician should be criminalised and this seems to be gaining traction. Politically trumped-up charges are now in fact common across the globe.
The prosecution for treason of those in Catalonia who legitimately held a successful referendum. Show trials in Russia. The persecution of political movements such as the water-charge protests in Ireland. The ruthless amoral pursuit of Julian Assange by American authorities failing to fess up to their own criminality.
The virus has ushered in the legislative and executive implementation of serf capitalism or Chinese capitalism and such legislation becomes embedded and precious liberties fought for generations divested in a state of perpetual emergency. I
n fact the German jurist Carl Schmitt wrote about how executive actions responding to a subjectively perceived emergency paves the way for totalitarianism and it is minorities who will be most affected or those perceived to be dissidents.
In the US in the Second World War, many disgraceful things happened against mixed blood Americans, particularly those of Japanese origin who were locked up in concentration camps and exclusion zones. In effect internment on the dubious basis that they might be involved in espionage, disgracefully endorsed by the US Supreme Court in the infamous Korematsu Case (1942). America and perhaps the world now to be divided into de facto or de jure exclusion zones. Direct provision in Ireland and quarantining a harbinger of things to come
Jury courts may be victims. Geoffery Robertson QC has been nuanced in responding to an emergency in the interests of the profession. At least a court hearing with the elimination of the jury would facilitate a hearing and the financial sustenance of the profession in time of plague.
There is, however, a larger conversation to be started which is the choice between common law, adversarial and continental-European-style inquisitorial systems.
The systematic collation of evidence by a judge aided a prosecutor building and assessing a file over time, favoured inquisitorial systems, is often more effective in getting to the truth. It has merit if the judge is independent and not subject to influence which is often not the case in inquisitorial systems but would be, I would imagine, in the UK.
We are thus entering and have entered an altered state and a dangerous Brave New World where the cause of human rights has been negated by potentially embedded surveillance, restrictions of liberty and movement and a controlling society where civility and reason is lost and a new form of feudal mercantile capitalism has taken hold.
So , the people of Dublin on St Patrick’s Day should rid us of the snakes of venal corporatism and state authoritarianism and reclaim what Habermas calls the public sphere and realise as he argues as did Gandhi and Martin Luther King that disobedience against tyranny is necessary.
Protest to survive before it is too late.
David Langwallner is a barrister specialising in public law, immigration, housing and criminal defence including miscarriages of justice. He is emeritus director of the Irish innocence project and was Irish lawyer of the year at the 2015 Irish law awards. His column appears here every Tuesday and Friday. Follow David on Twitter @DLangwallner
Top pic via Paschal Sheehy