The Blair war on our civil rights: Henry Porter and the US-UK extradition treaty

In a recent item in Ephems , I reported as a recent news item from the asylum that —

A man called Steve Jago has been arrested in Whitehall for carrying a banner bearing a quotation from George Orwell ("In a time of universal deceit telling the truth is a revolutionary act") and three copies of an article from Vanity Fair headed "Blair's Big Brother Britain".  He has been charged under the Serious Organised Crime and Police Act.  At the police station a police officer stated for the record that he was showing the defendant the Vanity Fair articles which appeared to be 'politically motivated material'.

The politically motivated article (shock, horror!) in question turns out to be a superb and scrupulously documented analysis of Blair's frontal assault on a wide range of our historic civil rights and freedoms by the Observer columnist (and London editor of Vanity Fair), Henry Porter.  It is in the July 2006 edition of the magazine, and fortunately the full text is on the Vanity Fair website.   It makes for compulsive and riveting reading, and is strongly recommended to anyone who doubts that New Labour has subverted the English tradition of individual rights, probably beyond repair.  Just don't print it out and carry a copy down Whitehall while the cops are looking.

A bonus in Porter's article is a link to the remarkable exchange of e-mails between himself and none other than Tony Blair, published in the Observer in April 2006, and also available in full on the Web. This too is obligatory reading.  It can't be often that a busy prime minister is so incensed by a newspaper column attacking his human rights record that he starts banging out e-mails to the offending columnist.  He begins his counter-attack in uncompromising language:

Frankly it's difficult to know where to start, given the mishmash of misunderstanding, gross exaggeration and things that are just plain wrong.

Needless to say, Porter returns to the charge with redoubled vigour.  A terrific read, if in many ways a deeply depressing one.

One scandal not mentioned by Henry Porter in Vanity Fair or in his e-mails is the agreement with the Americans under which they may demand the extradition to the US of British citizens whom they wish to try in the American courts even if the offences of which they are accused were committed outside the US, and without any obligation laid on the US authorities to provide even prima facie evidence against the person sought in support of their request for his extradition.  The imminent extradition of three British businessmen to stand trial in the US under this outrageous agreement, and the Act of the UK Parliament which brought it into operation despite the fact that even now the US Senate has not ratified it, has belatedly ignited controversy and protests in the UK media and even on the streets. There's no need for me to go into detail about it here (a full account is available on the Web here) . I and others tried to draw it to public attention, e.g. in my letter published in the Sunday Times on 6 June 2004, on this blog in the following February, and in other ways. 

The three men are expected to be flown to the US next week.  Despite a reckless promise in parliament by Blair to see if he could do anything to ensure that the men are granted bail while they await their trials (perhaps for anything from one to three years), nothing seems to have been done and even if bail is granted, it is likely to be on such huge sureties that the men are unlikely to be able to raise it.  If and when they come to trial, they are almost certain to have to consider a plea bargain to avoid the risk of being sentenced to imprisonment effectively for the rest of their lives if convicted:  under such a bargain they will be forced to plead guilty, perhaps to slightly lesser charges than those originally brought, in exchange for a promise of shorter sentences, perhaps five or ten years rather than the 30 or 40 years to which they might well be condemned if they refuse the offer of a bargain.  So we have here three UK citizens, charged with offences committed in Britain against a British company, for which they have never been charged in Britain:  the Americans claiming extra-territorial jurisdiction as if Washington were the seat of a world government and a world court; an Act of Parliament under which all this is allowed to happen (thus effectively preventing the UK courts from offering protection to the victims);  the cowardly refusal of the British law officers or the home secretary to exercise their discretion to prevent extradition from going ahead; a deeply flawed and one-sided agreement with the US, for which David Blunkett is unsurprisingly responsible from his days as home secretary; and three Britons about to be the victims of the deeply unjust American systems of plea bargaining, over-charging (remember Louise Woodward?), and grossly over-long prison sentences.  Other Brits have already been extradited under these monstrous arrangements: it's only when prosperous middle-class British bankers face the same fate that the media become seriously agitated.  All this on top of the catalogue of attacks on the rule of law compiled by Henry Porter. 

Truly, you couldn't make it up.


7 Responses

  1. Carl Lundquist says:

    I might mention for the record, that Miss Woodward was not involved in a plea bargain situation.   She was caught in the situation of having incompetent counsel.    She was charged with an offense which had lesser included offenses within it.  The jury would have had a choice of a range of verdicts:   involuntary manslaughter, voluntary manslaughter, or 2 degree murder.    Her defense attorney moved removal of the lesser offenses, as was the defendent's privilege, the plan being to force the jury to consider only a life sentence for 2nd degree murder, or freeing the young woman.   In the event, the jury given a Hobson's choice,  felt that the evidence of culpability in the homicide of a baby was so great that she had to undergo some punishment and so convicted her of murder 2.   The general idea I suppose that would leave it up to the lawyers to sort out.

    And indeed the lawyers did sort it out.   The trial judge reduced the verdict to involuntary manslaughter and sentenced the young killer to time served,  15 months in jail.   That was confirmed by the  Massachusetts Supreme Judicial Court by a 4-3 vote.

    In short, Miss Wordward received a full ration of justice.   Her troubles were brought on herself for gross and fatal child abuse and stupid counsel.    Nowhere in the matter was plea bargaining involved.   

     The whole uproar over her treatment by the prosecutors and  judiciary of what is probably the most liberal state in the Union, strikes most Americans familiar with the story as just an anti-American canard.  

    Brian writes:  I have replied (much) more fully in a further comment here.   It's enough in this comment to make it clear that I disagree very fundamentally with the assertions that:  Louise Woodward was not involved in a plea bargaining situation (she was); that her defence or defense lawyers were incompetent (they acted throughout in the interests of Louise and of justice — according to the eminent jurist Professor Richard Friedman, "Woodward, through the fortuity of deep-pocketed sponsorship, had representation, in terms of quality and resources, that few defendants on either side of the Atlantic could plausibly dream of having"); that Louise was guilty of child abuse (she almost certainly wasn't, and certainly such abuse was never proved beyond a reasonable doubt); and that the removal of the manslaughter charge was a mistake (it was not). Apart from all that, some of what's left is more or less right!

  2. Patrick says:

    Many thanks for providing the link to the Vanity Fair article and your estimable comments on the Steve Jago affair, as always your blog provides me with a worthy education.  The power of a government is a two-edged sword, as history bears witness, and the current New Labour administration is no different.  This administration brooks no dissent, the values of the Sixties revolution are so obviously correct that any dissent must be wrong and therefore illegal.  To demonstrate against a government that considers itself to be so worthy must surely be a crime?

    The values of self-discipline, service and free speech, along with the freedom to order personal affairs without State intervention are becoming increasingly rare.  The Road to Serfdom?

  3. Brian says:

    It's seriously off-topic, but I can't resist rising to the bait dangled by Carl in his comment, above, on the trial of Louise Woodward, a subject in which for some reason I took a close interest at the time.  My views are set out in full in my long letter published in the (London) Times of 23 June 1998, available in the Times archive at  (subscription required).  I'll be glad to e-mail a copy to anyone who can't afford the modest subscription — send me a request for it from the 'Contact' page of this website (but nb: I'm AFK and without internet access from 15 July to the end of July).  My Times letter prompted a lively private exchange of views with a prominent American jurist who took issue with one or two of the points in my letter but in the end didn't dispute its main thrust.

    Briefly, the main points are these.  Louise Woodward was almost certainly innocent of the charges against her and probably didn't harm the baby.  The prosecution failed to prove that the injury from which the baby died was inflicted on the day when Louise W. was looking after him:  there was evidence, sufficient to raise more than a reasonable doubt, that it had been inflicted earlier and not by Louise Woodward.  Even if she had been guilty of using unreasonable force by shaking him, there was not a shred of evidence to support the charge of premeditated and intentional murder in the first (not second) degree, the charge brought by the prosecution.  The sole purpose of that wholly unwarranted charge was plainly to blackmail Louise into a plea bargain in which, although completely innocent, she would be cowed into pleading guilty to a lesser charge of manslaughter in order to avert the risk, however seemingly remote, of being cionvicted of murder in the second degree with its mandatory life sentence without parole, the sentence actually passed on her.  Louise and her (outstanding) legal team refused to surrender to this attempted blackmail, believing — as they were entitled to do — that no jury could possibly convict her of murder in the absence of any evidence of premeditation;  they saw no reason for her to plead guilty to a lesser charge when she was completely innocent of any offence;  and since the prosecution had opted for this wild gamble, they decided to go for a full acquittal, as they were entitled to do: the Massachusetts Supreme Court itself quoted an earlier finding in a different case that a judge, confronted with a defense strategy not to seek a manslaughter instruction, "has no duty to undercut such a strategy by giving an instruction which the defendant on appeal would surely argue tempted the jury to a compromise verdict adverse to the defendant".  

    The trial was unfair in three ways: the intensely hostile pre-trial publicity, almost certain to have prejudiced the jury;  the politically motivated and cynical tactics of the prosecution in laying a charge of murder 1, hoping thereby to get a 'compromise' verdict of manslaughter via a plea bargain;  and the perverse verdict of the jury, convicting her of a crime (premeditated murder in the second degree) that she had plainly not committed, because they had a vague feeling that she must have done something wrong, and ought not to get away with it, and since a manslaughter verdict wasn't available, they went for the next worst thing.  This was a parody of justice.  The eventual decision by Judge Zobel, upheld in the Massachusetts Supreme Court, implicitly recognised that a gross miscarriage of justice had occurred by substituting a manslaughter conviction and imposing a sentence that entailed Louise's immediate release.

    It's surprising that anyone should seek to defend a decision by a jury to convict a defendant of a crime (murder) that she had manifestly not committed and for which there was no supporting evidence of any kind.  In those circumstances the only possible verdict was 'not guilty':  the likely wish of the jurors that they could have had the option of convicting her of some other offence is, or should have been, completely irrelevant.  The prosecution decision to lay a murder 1 charge flew in the face of justice and they should have been penalised for it by a complete acquittal.  To blame Louise and her defence team for what happened is almost as perverse as the jury's verdict.  It's a tribute to Massachusetts justice that these patent wrongs were fairly quickly rectified and Louise was freed to return to Britain.  Even then she had a nominal conviction for manslaughter on her record which she didn't deserve;  and she had suffered the agony for several months of knowing that she would probably spend the rest of her life in an American prison for a crime that on any reckoning she had not committed.  There are some further comments on the often vicious and unjust practice of plea bargaining (of which Louise Woodward was very nearly a victim) on my website here (see especially the quotation towards the end, and the last paragraph).   If Louise had succumbed to the pressure to accept a plea bargain by pleading guilty to manslaughter, as the prosecution hoped to coerce her into doing, she would probably still be in a Massachusetts penitentiary to this day, despite her probable innocence.

    And lastly, Carl, I hope you'll withdraw your quite unwarranted charge that critics of this particular trial are motivated by anti-American sentiment.  I'm a long-time admirer of very many aspects of American justice, the American constitution, American culture and America's traditions, from all of which we in Britain have much to learn. I have a daughter and two grandchildren who are American citizens and residents, and a son living happily in California.  I have lived in the US for years at a time and regard New York almost as a second home. I regard President Bush and his administration as an almost unqualified disaster but I know the difference between being anti-Bush and being anti-American.  But almost everything that could have gone wrong with a trial went wrong in Louise Woodward's case, and it's not anti-American to say so.  Was Judge Zobel anti-American?

  4. Carl Lundquist says:

    Ohmygod, I have gone and done it.    I have stepped into the Swamp of Woodward.  Such an exercise in self torture is exceeded only by the Bog of F*x H*nt*ng, and the Wilderness of Palestine.   And I should have known better having sysopped on the old UK Current Affairs Forum on Compuserve for years.   Faah.

    Let me take the last point first.   I meant no personal offense in my remark about canards.   It was meant in the most general sense based on my above stated experience.  I certainly would never impugn the motives of your good self. 

    Forging on ahead.   A 12 person jury convicted Ms. Woodward of criminally killing the baby.   This was a Cambridge Massachuetts jury.  Cambridge is a suburb of Boston, MA, the site of Harvard University.   The jurors are not likely to have been a bunch of yokels, tho yokel juries have returned some excellent verdicts.   Ms, Woodward, as you say, was defended by well funded counsel, and the DA had to prove his case.    He evidently did to the standard of beyond a reasonable doubt.

    Competence of the counsel:    Price and quality are not always the same thing.  And even the best of us have our bad days.    The point remains that counsel moved to block consideration of manslaughter by the jury.   The point of this was to force the jury to find guilt at the level of murder or acquit.    BTW, I do believe that murder one was never a consideration.    The jury found her guilty of the only charge available to them — murder towo.    The judge, recognizing the bind the jury found itself in, a bind later revealed in juror interviews,  reduced the sentence to involuntary manslaughter, the closest that he could come to the real intent of the jury.     On appeal by the DA, the Mass. Supreme Court upheld him 4-3.   An appeal by the defense to throw out the verdict entirely was rejected 7-0.

    The trial was televised.   American trials are public and reported on routinely.    I understand that British trials, tho open to the public, cannot be the subject of reporting.  Americans generally are mistrustful of government.   We believe that public and reported  trials insure  against not only against unfair convictions, but also unfair acquittals —   Collusion between defense and  prosecution or judge.  Justice must not only be done, it must be seen to be done.  And seen to be done at the time.   Now I must admit that the entertainment factor of TV means it should be handled with great caution, and, in fact, I have my personal doubts.   Nevertheless, televising can work for a defendant as well ans againts a defendent.   I need only point out the OJ Simpson fiasco that I as a resident of Los Angeles watched gavel to gavel.

    Americans essentially conduct trials in a goldfish bowl, British in a dark room.   I prefer the goldfish bowl…but then I would say that wouldn't I?   <g> 

    Anyrate, Ms Woodward was convicted of criminal homicide by 12 jurors who sat thru the entire case, and heard all the admissable evidence.  Our jury system very throughly vets the jurors, the jurors are extensively instructed in their duties by prosecution, defense, AND judge.   Our judges have fairly extensive powers to reduce jury verdicts, but are forbidden to raise them. 

    I did not sit in that jury box, you did not sit in that jury box, neither of us heard the evidence as they did.   Both of us are going with our remotely derived opinion.

    Brian replies:  Carl, I don't know quite how we got into this, either.  But now that we're in it, ….

    Just a few points in reply to a sample of those in your characteristically courteous comment:

    I didn't describe the Massachusetts jurors as yokels, and I didn't criticise the televising of Louise Woodward's trial.  Indeed, my interest in it was originally awakened by watching a great deal of it on television in London, England, by courtesy of Sky News.  So it's not the case that I'm relying exclusively on second- or third-hand reporting of it, or that "neither of us heard the evidence as [the jury] did".  I didn't of course hear all the evidence as the jury did, but I heard the key evidence and much of the argument by opposing counsel.  And the appeal judge, Judge Zobel, whose decision to release Louise W. forthwith amounted to a de facto acquittal, went over all the evidence and the trial judge's directions to the jury with a fine toothcomb before coming to his conclusion that the conviction for murder was perverse, unsupported by the evidence, and incapable of being allowed to stand.  He was prevented from substituting an outright acquittal (as I believe he would have liked to do) by the fact that this would have been attacked, and possibly overturned on further appeal, for paying inadequate respect to the jury's decision. 

    There's an element of sleight-of-hand in your repeated assertion, in varied terms, that "Ms Woodward was convicted of criminal homicide": that's literally true, but seriously misleading.  She was charged by the prosecution with murder in the first degree, which necessarily involves premeditation.  You must surely recognise that (a) there was no evidence to support such a charge, (b) the prosecution can't have expected to get a conviction on such a charge, (c) this charge was brought purely with the intention of either forcing LW into a plea bargain under which she would feel compelled, even if wholly innocent, to plead guilty to the lesser charge of manslaughter in order to avoid the risk, however remote, of a life sentence without parole that would go with a conviction for murder: or alternatively on the assumption that the jury would convict on the manslaughter charge, not purely on the basis of the evidence, but because it would seem to them a reasonable compromise, whatever the facts, between a conviction for murder (1 or 2) and an outright acquittal.  The defence made the rational and correct decision to avoid that indefensible double trap by asking for the manslaughter charge to be withdrawn, assessing the risk of a conviction for premeditated murder, in the absence of evidence for it, to be close to zero.  That assessment turned out to be wrong, but only because the jury arrived at a perverse verdict (conviction for murder 2) for utterly invalid reasons (they knew she wasn't guilty of murder but decided to convict her anyway rather than acquit her because they thought she had done something wrong even if it wasn't what she had been charged with).  And incidentally it was the judge, not the defence, who withdrew the manslaughter charge at the request of the defence, which he recognised to be a valid response to the deliberate over-charging by the prosecution. 

    Extracts from letter in the (London) Times of 30 June 1998 from Richard D. Friedman, Professor of Law, University of Michigan Law School:

    Brian Barder is certainly correct (letter, June 23) that it is very plausible, even probable, that Judge Zobel would have preferred an outright acquittal of Louise Woodward…

    …the prosecution's decision to charge Woodward with first-degree murder … [t]he jurors, sensibly, rejected that charge…

    Woodward's superb defence – which availed itself of the extensive opportunities provided by the American system of jury selection…

    The suggestion of political motivation on the part of the prosecutors has been much overplayed… [but by implication it was nevertheless a factor — resulting from the practice of electing the district attorney]

    I do not mean to suggest that Woodward got a perfect trial; trials, on either side of the Atlantic, rarely are. The judge's decision, later rectified after a fashion, not to submit the manslaughter charge to the jury was bizarre, but that was a decision invited, for valid tactical reasons, by the defence….  [my emphasis]

    Counsellor, I rest my case.  Let the court of blogosphere opinion judge the merits of our respective arguments.  There's plenty more to be said, but I haven't got time to say it here before I go on holiday on Saturday!

  5. Carl Lundquist says:

    As far as the charge is concerned, I do not know the details of the Massachuesetts charge.   Murder could have been the charge, degree a matter of jury determination and manslaughter a lesser included offense.   There is no such thing as American law.   There are 52 "American" laws — one federal, 50 states, and Puerto Rico.  Damn I wish Joel Shearer, the UKCA criminal lawyer was lurking here.

    The fundamental error was defense — waiving all manslaughter charges and demanding trial on murder.    That was not plea bargaining, in fact it was quite the opposite, a defense all or nothing strategy.

    As far as the judge’s agreement with jury is concerned, in my state the judge has the right to toss out a jury’s guilty verdict entirely and either order a new trial or direct a verdict of not guilty.   He did not.

    In fact, his reduction of the sentence to time served is not a defacto acquital.  Ms. Woodward stands as a convicted felon under US law.  There are a raft of disabilities attached to that status.

    Finally, yes, I am stalling about the three bankers.  The case has been barely reported on in the USA.   I am waiting for coverage on the matter by the "Economist" to which I subscribe.   I generally trust the magazine’s veracity and thoroughness.   Until then as yoyou suggest — pace!

  6. Brian says:

    Carl, I’m sorry to chip in yet again after half-promising not to, but I can’t leave two things in your last comment on the record unchallenged.  I simply don’t accept that the "fundamental error was defense — waiving all manslaughter charges and demanding trial on murder.    That was not plea bargaining, in fact it was quite the opposite, a defense all or nothing strategy."  On the contrary, the fundamental error was the prosecution’s:  laying an obviously unsupported and unprovable charge of first degree murder, not with any realistic hope of securing a conviction for murder, since the facts didn’t support it, but simply to try to frighten Woodward into a plea bargain under which she would feel compelled to plead guilty to manslaughter so as not to risk a life sentence for murder.  That was an insult to justice and a gross breach of professional duty on the part of the DA:  over-charging to force the accused to plea bargain is a lousy and indefensible practice, almost guaranteed to result in a miscarriage of justice, as it very nearly did in Louise Woodward’s case.

    The prosecution also assumed that even if Woodward refused to plea-bargain, as she did, the presence of the murder charge on the charge sheet along with the manslaughter alternative would tempt the jury to convict on manslaughter even if the manslaughter charge couldn’t be proved beyond reasonable doubt, since it would look like a kind of generous compromise compared with murder.  Again, this is a totally illegitimate approach to prosecution, and a fundamental breach of basic principles of justice.

    In this case the tactic didn’t work because the defence gave the sound and rational advice to Woodward that there was no need for her to plea-bargain since no sane jury could convict her of murder (either 1 or 2) and that since she refused to plead guilty to manslaughter, the prosecution’s vicious tactics should be repaid in kind by seeking withdrawal of the manslaughter charge, forcing the prosecution to try to substantiate the charge of murder 1 which they had opted to bring.  In the event the murder charge was never proved — there was no evidence of premeditation so it couldn’t be proved — but the jury convicted her of murder 2 anyway, obviously knowing that she wasn’t guilty of murder but thinking, perversely, that they shouldn’t acquit her if they thought she must be guilty of something else.

    I repeat that there was nothing erroneous about the defence’s response to wholly unacceptable tactics on the part of the prosecution.  To blame the defence for the bad behaviour of the prosecution is almost as perverse as the jury’s verdict!

    So even though Woodward didn’t fall into the trap of agreeing to a plea bargain, it was the attempt to force her to do so that dictated the prosecution’s tactics.  So it’s quite wrong to claim that the issue of plea bargaining with its inherent injustice was irrelevant to the Woodward trial.  It was in fact central to it.

    The other point that needs to be corrected for the record is that the prosecution did charge Woodward with murder in the first degree, a ludicrous, disgraceful and indefensible decision.  In my view it was never proved beyond reasonable doubt that she was guilty of any offence whatever — not manslaughter, not grievous bodily harm, not assault. Indeed, there was a cogent alternative explanation of the cause of the baby’s death.  I think it’s clear that the appeal court judge (Zobel) thought that she should have been acquitted on both murder and manslaughter charges, a view which was shared by Professor Richard Friedman (an acknowledged authority on the case) as quoted above.

    We must agree to differ, I’m afraid.

    It’s very interesting that there has been so little media interest in the US in the case of the NatWest Three (bankers), who are on their way to Houston Texas as I write, to be shackled and taken off to jail despite never having been given an opportunity to challenge the case against them in any court.  There has been enormous controversy about it here, prompting stormy debates in both Houses of Parliament in which the government got no support whatever from any party, including its own, and was heavily defeated on the issue of the injustice of the relevant extradition agreement and Act in both Houses. The whole controversy has reflected extremely adversely on perceptions here of American justice and of our own government’s supine submission to quite exorbitant American demands.  US Ambassador Tuttle has been bravely appearing daily on UK television and radio seeking to defend the indefensible, mainly by repeating over and over again the formula provided, obviously, by Washington despite the fact that it has been repeatedly shown to be factually wrong.  Poor man!

    It should have been sending shock waves across the Atlantic, and the fact that it hasn’t reinforces people’s suspicion that most Americans don’t give a damn any more about what their best friends and allies think.

    Here, I fear, endeth this correspondence.  Anything more on Woodward or the NatWest Three will have to go as a new item on a different blog.  I’m closing down shortly for two weeks while away on holiday.  Auf Wiedersehen!

  7. Carl Lundquist says:


    Enjoy your holiday

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