The case of the missing thumbprint

The "Hyde Park bomber" has become a landmark for British justice, reports Bob Woffinden

Scant attention was devoted last month to the successful outcome of the appeal of Danny McNamee, known as the "Hyde Park bomber". In publicity terms, McNamee was doubly disadvantaged: not only was the judgment overshadowed by pre-Christmas festivities, it was also given on a day when the news agenda was focused on Baghdad. With Britain and the US dropping so many bombs on Iraq, who was interested in a man who, we belatedly learnt, hadn't bombed anyone at all?

Yet the judgment was of immense importance, for it offered yet another proof of how catastrophically flawed the British justice can be; and because the appeal judges fundamentally restated the legal position with regard to appeals.

McNamee had supposedly manufactured the bomb that exploded in July 1982, killing four soldiers and seven horses.

The Crown's case rested on three fingerprints: one each on short lengths of insulating tape in two caches of explosives-making equipment discovered in Pangbourne and Salcey forests, and a thumbprint on a Duracell battery recovered from the debris after a controlled explosion in Kensington.

As a result, the Crown argued that the "artwork" used in the manufacture of circuit boards found in these locations was so similar that they were all made by "the same original master". This, they asserted, was McNamee. This evidence, together with all the emotive associations of the Hyde Park bombing, added up to a formidable case.

From the outset, McNamee's defence was that, although he was at a loss to explain the thumbprint, there was an innocent explanation for the first two fingerprints. After graduating from Queen's University, Belfast, he was employed by Kimballs in Dundalk, making circuits for gaming machines. If bomb-making had been going on, he was unaware of it. The judge, however, claimed that "two prints . . . could have an innocent explanation; but three prints is beyond coincidence."

The appeal judges noted that the case which they heard in 1998 was very different to that presented to the jury in 1987. It certainly was. The Crown now had to concede that they were unable to say that McNamee was "the Hyde Park bomber" or that he was responsible for the manufacture of the circuit boards. The critical thumbprint, found on the Kensington bomb, also disappeared. A print is supposed to have 16 identifying features, yet of the 14 fingerprint experts called to this appeal, none could now find more than 11 characteristics.

The judges further remarked on the extraordinary amount of relevant material that was not disclosed in 1987. They referred to two "detailed and impressive" reports on the caches of explosives prepared by the anti-terrorist branch of New Scotland Yard. They wrote that, with regard to the cache of explosives found in Pangbourne forest, "the evidence against the bomb-making team of Hughes, Ellis, Leonard and McGuire is overwhelming". The second report said that "Moyna and Harford [are] clearly . . . responsible for the production of the majority of the bomb components found in Salcey forest".

The names are all those of known terrorists. While they were in top-secret reports, McNamee's name was conspicuous by its absence. The defence didn't realise this, however, as no one was thoughtful enough to pass on such vital information. Nor had anyone from the prosecution side bothered to inform them that, although they had found a solitary fingerprint of McNamee's in the Pangbourne forest cache, they had found 24 identified as those of Desmond Ellis, a leading bomb-maker.

Despite all this, the judges still held to the view that McNamee might be guilty. They may have been influenced by a public interest immunity (PII) hearing at the very start of the appeal. One member of McNamee's team explained that the material appeared to consist of "really objectionable low-grade gossip, with the RUC saying they had sightings of McNamee on dates when he was actually in prison". This "evidence" was unchallenged and unchallengeable. (The use in British courts of PII hearings is on the agenda for the European Court, on the grounds that it breaches the right to a fair and public hearing.)

The judges' perspective could have presented serious difficulties for McNamee. One of the provisions of the 1995 Criminal Appeal Act was to change the grounds on which appeals would be allowed from "unsafe and unsatisfactory" simply to "unsafe". Had parliament, in introducing the change, intended a fundamental shift in the court's approach?

The answer, initially determined in the appeal of R v Chalkley and Jeffries, was the latter: appeals were allowed only if judges were convinced the whole case was "unsafe".

Yet McNamee's defence team (headed by the solicitor Gareth Pierce and the QC Michael Mansfield) succeeded in persuading the judges that, for the previous two years, the appeal court had been frustrating the wishes of parliament. The judges conceded, in effect, that the Chalkley and Jeffries judgment was too sweeping and that a real test for an appeal should be "[where] the impact of the fresh evidence on a case is not conclusive, but is such as to render the verdict of the jury unsafe because a tribunal of fact might . . . be left with a reasonable doubt as to guilt".

The appeal means a big step forward for all future appellants. Immediate beneficiaries were Michael O'Brien, Ellis Sherwood and Darren Hall, convicted in the so-called Cardiff newsagent case. Their case was referred to appeal, and the three were released on bail in time for Christmas.

This article first appeared in the 08 January 1999 issue of the New Statesman, Stuff the millennium

Jeremy Corbyn. Photo: Getty
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Lexit: the EU is a neoliberal project, so let's do something different when we leave it

Brexit affords the British left a historic opportunity for a decisive break with EU market liberalism.

The Brexit vote to leave the European Union has many parents, but "Lexit" – the argument for exiting the EU from the left – remains an orphan. A third of Labour voters backed Leave, but they did so without any significant leadership from the Labour Party. Left-of-centre votes proved decisive in determining the outcome of a referendum that was otherwise framed, shaped, and presented almost exclusively by the right. A proper left discussion of the issues has been, if not entirely absent, then decidedly marginal – part of a more general malaise when it comes to developing left alternatives that has begun to be corrected only recently, under Jeremy Corbyn and John McDonnell.

Ceding Brexit to the right was very nearly the most serious strategic mistake by the British left since the ‘70s. Under successive leaders Labour became so incorporated into the ideology of Europeanism as to preclude any clear-eyed critical analysis of the actually existing EU as a regulatory and trade regime pursuing deep economic integration. The same political journey that carried Labour into its technocratic embrace of the EU also resulted in the abandonment of any form of distinctive economics separate from the orthodoxies of market liberalism.

It’s been astounding to witness so many left-wingers, in meltdown over Brexit, resort to parroting liberal economics. Thus we hear that factor mobility isn’t about labour arbitrage, that public services aren’t under pressure, that we must prioritise foreign direct investment and trade. It’s little wonder Labour became so detached from its base. Such claims do not match the lived experience of ordinary people in regions of the country devastated by deindustrialisation and disinvestment.

Nor should concerns about wage stagnation and bargaining power be met with finger-wagging accusations of racism, as if the manner in which capitalism pits workers against each other hasn’t long been understood. Instead, we should be offering real solutions – including a willingness to rethink capital mobility and trade. This places us in direct conflict with the constitutionalised neoliberalism of the EU.

Only the political savvy of the leadership has enabled Labour to recover from its disastrous positioning post-referendum. Incredibly, what seemed an unbeatable electoral bloc around Theresa May has been deftly prized apart in the course of an extraordinary General Election campaign. To consolidate the political project they have initiated, Corbyn and McDonnell must now follow through with a truly radical economic programme. The place to look for inspiration is precisely the range of instruments and policy options discouraged or outright forbidden by the EU.

A neoliberal project

The fact that right-wing arguments for Leave predominated during the referendum says far more about today’s left than it does about the European Union. There has been a great deal of myth-making concerning the latter –much of it funded, directly or indirectly, by the EU itself.

From its inception, the EU has been a top-down project driven by political and administrative elites, "a protected sphere", in the judgment of the late Peter Mair, "in which policy-making can evade the constraints imposed by representative democracy". To complain about the EU’s "democratic deficit" is to have misunderstood its purpose. The main thrust of European economic policy has been to extend and deepen the market through liberalisation, privatisation, and flexiblisation, subordinating employment and social protection to goals of low inflation, debt reduction, and increased competitiveness.

Prospects for Keynesian reflationary policies, or even for pan-European economic planning – never great – soon gave way to more Hayekian conceptions. Hayek’s original insight, in The Economic Conditions of Interstate Federalism, was that free movement of capital, goods, and labour – a "single market" – among a federation of nations would severely and necessarily restrict the economic policy space available to individual members. Pro-European socialists, whose aim had been to acquire new supranational options for the regulation of capital, found themselves surrendering the tools they already possessed at home. The national road to socialism, or even to social democracy, was closed.

The direction of travel has been singular and unrelenting. To take one example, workers’ rights – a supposed EU strength – are steadily being eroded, as can be seen in landmark judgments by the European Court of Justice (ECJ) in the Viking and Laval cases, among others. In both instances, workers attempting to strike in protest at plans to replace workers from one EU country with lower-wage workers from another, were told their right to strike could not infringe upon the "four freedoms" – free movement of capital, labour, goods, and services – established by the treaties.

More broadly, on trade, financial regulation, state aid, government purchasing, public service delivery, and more, any attempt to create a different kind of economy from inside the EU has largely been forestalled by competition policy or single market regulation.

A new political economy

Given that the UK will soon be escaping the EU, what opportunities might this afford? Three policy directions immediately stand out: public ownership, industrial strategy, and procurement. In each case, EU regulation previously stood in the way of promising left strategies. In each case, the political and economic returns from bold departures from neoliberal orthodoxy after Brexit could be substantial.

While not banned outright by EU law, public ownership is severely discouraged and disadvantaged by it. ECJ interpretation of Article 106 of the Treaty on the Functioning of the European Union (TFEU) has steadily eroded public ownership options. "The ECJ", argues law professor Danny Nicol, "appears to have constructed a one-way street in favour of private-sector provision: nationalised services are prima facie suspect and must be analysed for their necessity". Sure enough, the EU has been a significant driver of privatisation, functioning like a ratchet. It’s much easier for a member state to pursue the liberalisation of sectors than to secure their (re)nationalisation. Article 59 (TFEU) specifically allows the European Council and Parliament to liberalise services. Since the ‘80s, there have been single market programmes in energy, transport, postal services, telecommunications, education, and health.

Britain has long been an extreme outlier on privatisation, responsible for 40 per cent of the total assets privatised across the OECD between 1980 and 1996. Today, however, increasing inequality, poverty, environmental degradation and the general sense of an impoverished public sphere are leading to growing calls for renewed public ownership (albeit in new, more democratic forms). Soon to be free of EU constraints, it’s time to explore an expanded and fundamentally reimagined UK public sector.

Next, Britain’s industrial production has been virtually flat since the late 1990s, with a yawning trade deficit in industrial goods. Any serious industrial strategy to address the structural weaknesses of UK manufacturing will rely on "state aid" – the nurturing of a next generation of companies through grants, interest and tax relief, guarantees, government holdings, and the provision of goods and services on a preferential basis.

Article 107 TFEU allows for state aid only if it is compatible with the internal market and does not distort competition, laying out the specific circumstances in which it could be lawful. Whether or not state aid meets these criteria is at the sole discretion of the Commission – and courts in member states are obligated to enforce the commission’s decisions. The Commission has adopted an approach that considers, among other things, the existence of market failure, the effectiveness of other options, and the impact on the market and competition, thereby allowing state aid only in exceptional circumstances.

For many parts of the UK, the challenges of industrial decline remain starkly present – entire communities are thrown on the scrap heap, with all the associated capital and carbon costs and wasted lives. It’s high time the left returned to the possibilities inherent in a proactive industrial strategy. A true community-sustaining industrial strategy would consist of the deliberate direction of capital to sectors, localities, and regions, so as to balance out market trends and prevent communities from falling into decay, while also ensuring the investment in research and development necessary to maintain a highly productive economy. Policy, in this vision, would function to re-deploy infrastructure, production facilities, and workers left unemployed because of a shutdown or increased automation.

In some cases, this might mean assistance to workers or localities to buy up facilities and keep them running under worker or community ownership. In other cases it might involve re-training workers for new skills and re-fitting facilities. A regional approach might help launch new enterprises that would eventually be spun off as worker or local community-owned firms, supporting the development of strong and vibrant network economies, perhaps on the basis of a Green New Deal. All of this will be possible post-Brexit, under a Corbyn government.

Lastly, there is procurement. Under EU law, explicitly linking public procurement to local entities or social needs is difficult. The ECJ has ruled that, even if there is no specific legislation, procurement activity must "comply with the fundamental rules of the Treaty, in particular the principle of non-discrimination on grounds of nationality". This means that all procurement contracts must be open to all bidders across the EU, and public authorities must advertise contracts widely in other EU countries. In 2004, the European Parliament and Council issued two directives establishing the criteria governing such contracts: "lowest price only" and "most economically advantageous tender".

Unleashed from EU constraints, there are major opportunities for targeting large-scale public procurement to rebuild and transform communities, cities, and regions. The vision behind the celebrated Preston Model of community wealth building – inspired by the work of our own organisation, The Democracy Collaborative, in Cleveland, Ohio – leverages public procurement and the stabilising power of place-based anchor institutions (governments, hospitals, universities) to support rooted, participatory, democratic local economies built around multipliers. In this way, public funds can be made to do "double duty"; anchoring jobs and building community wealth, reversing long-term economic decline. This suggests the viability of a very different economic approach and potential for a winning political coalition, building support for a new socialist economics from the ground up.

With the prospect of a Corbyn government now tantalisingly close, it’s imperative that Labour reconciles its policy objectives in the Brexit negotiations with its plans for a radical economic transformation and redistribution of power and wealth. Only by pursuing strategies capable of re-establishing broad control over the national economy can Labour hope to manage the coming period of pain and dislocation following Brexit. Based on new institutions and approaches and the centrality of ownership and control, democracy, and participation, we should be busy assembling the tools and strategies that will allow departure from the EU to open up new political-economic horizons in Britain and bring about the profound transformation the country so desperately wants and needs.

Joe Guinan is executive director of the Next System Project at The Democracy Collaborative. Thomas M. Hanna is research director at The Democracy Collaborative.

This is an extract from a longer essay which appears in the inaugural edition of the IPPR Progressive Review.

 

 

This article first appeared in the 08 January 1999 issue of the New Statesman, Stuff the millennium