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 favour to any party of the action in their decision1.
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. 2 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. This calls for 'a high rate of apprehension and conviction', placing a 'premium on speed and finality', and it therefore presents a minimal opportunity for challenge.
To work effectively the Crime Control model should ensure that only the strong cases are taken forward to conviction and sentence as expeditiously as possible. Packer contrasts this with the Due Process model which takes the view that the stigma and loss of liberty might fall on the defendant, therefore insists on fairness criteria and other protections for the defendant. This places the open adjudication in court, with the possibility of an appeal to ensure maximum protection is in place for the defendant.
Some components of the Due Process model would claim to have a more accurate method of discovering the truth than the Crime Control Model. The writer will now apply Packer's models to the cases of the former butler to Princess Diana, Paul Burrell and David Shayler the former employee of MI5, by applying Packers methods we can determine if the agencies of the criminal justice procedure3 applied the requisite criteria of the Due Process ensuring that the defendants had the protection of 'innocent until proven guilty'
We will look briefly at the facts of the case of Paul Burrell. He appeared in court charged with stealing hundreds of possessions belonging to the Princess, Prince William and the Prince of Wales. Mr Burrells's solicitor, Mr Andrew Shaw said 'the police had decided to charge Mr Burrell before he had had a chance to provide any explanation for the items in question'. 4 Parts of the trial were conducted in secret, with evidence being shown to the jury but not read out in open court.
The trial judge, Mrs Justice Rafferty had justified the secrecy as "to protect Princes William and Harry", and had not been a palace request she confirmed no application for Public Interest Immunity5 (PII) had been applied for. 6 The crux of the prosecution case against him was that he not had told anyone that he had kept items belonging to the Princess at his home in Farndon. The Queen was not briefed on the way the case was being prepared against Mr Burrell to avoid any criticism that Buckingham Palace would interfere with the proceedings.
The Queen therefore believed that the police had evidence to support their prosecution. At a meeting at Highgrove on 3rd August 2001, the officer in charge of the case, Detective Chief Inspector Maxine de Brunner, told the Prince of Wales and Prince William, that the police possessed evidence that large quantities of items stolen by Mr Burrell had been sold abroad. She also claimed that officers had seen photographs of Mr Burrell dressed up in clothing belonging to Princess Diana and that the photographs had been sold to a tabloid newspaper.
These claims were later found to be false, but neither Prince Charles nor Prince William, whose support was needed in order to proceed with the prosecution were told this. The detectives on the case had implied to the royal family that Mr Burrell had become wealthy soon after the death of Princess Diana by selling some of her possessions. However, during the investigation the police failed to account that Mr Burrell had written a book which had sold 100,000 copies and that he gave after dinner speeches for fees up to i?? 1,000.
'The police have now admitted that they were effectively gilding in the lily during their conversation with Prince William and the Princess of Wales,' Andrew Shaw, Paul Burrell's solicitor, told the Observer7 Mr Burrell had informed that police and Crown Prosecution Service that he had taken items for safekeeping some nine months before the case came to trial. This disclosure was not followed up; no questions were asked of who was aware of the arrangement prior to the case being heard at trial. This was a big investigation error on the part of the police and would prove to be of vital importance later in the trial.
The prosecution barrister, William Boyce QC said that it had emerged that Mr Burrell had told the Queen in a private conversation after Diana's death that he had kept some of her possessions for safe keeping. Neither the police nor the prosecution had asked the Queen about the private meeting which was mentioned in Mr Burrell's defence statement. The Queen had realised only after the case had started that he evidence might be relevant and it was brought to the attention of the police. The information from the Queen was that Mr Burrell had told her he was keeping some items of Diana, Princess of Wales.
That undermined the prosecution case that he had stolen from Diana, and led to the prosecution 'forming the view that there would no longer be a realistic prospect of conviction and they offered the court to direct the verdicts of 'not guilty'8 There were many criticisms arising from the trial including the search of Burrell's home, if it had been investigated thoroughly it would have demonstrated that there was no evidence that he tried to dispose any items, the police also failed to take any photographs of allegedly stolen items.
The 'searchers' removed computer disks but failed to switch on the office computer to ascertain if there was any incriminating files, the officer in charge of the search did not enter the loft area because she was afraid of heights. There was also the meeting with the two Princes which was misleading. The whole investigation was a shambles from start to finish with an estimated cost of 1. 5 Million from the public purse. Mr Burrell was considered guilty by the police and in turn by the Crown Prosecution Service who decided that they had a high conviction case.
We now turn to the David Shayler case and contrast it with the Burrell trial, David Shayler served as an officer with the Security Service, known as MI5, from November 1991 until he resigned in October 1996. His terms of service included extensive prohibitions on publishing information about the Security Service. When Mr Shayler left, he took with him copies of many confidential documents containing sensitive information relating to intelligence activities of MI5. According to the Attorney General, Mr Shayler then disclosed some of this material to a newspaper publisher, Associated Newspapers Limited.
Articles written by Mr Shayler, or based on information provided by him, were published in the 'Mail on Sunday' and the 'Evening Standard' in August 1997. He was charged with disclosing confidential information without lawful permission thus breaking the Official Secrets Act 1989. 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.
'It rejects any system of outside, independent, scrutiny on the grounds that outsiders – whether MP's, privy councillor 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.
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.