Saturday, February 11, 2012

Justice 2

The abandonment of the double jeopardy rule is just one aspect of a trend that has been evident to all who give a damn about justice since the 1980's, a trend to make it easier to convict people. Any people; genuine guilt would be nice but is not a necessity.
As I look back at some of these changes, I cannot help but wonder how they must seem to readers in faraway places, such as the United States; places where putting restraints on the power of the government are viewed rather more seriously than in the UK.
Where else but in the UK are the police so lazy that they objected to a suspect's right to silence? Now, a refusal to answer questions can be used to "draw adverse inferences" before a jury. I take a pretty strict view on this - if you want to prove a charge against me, get off your backside and find the evidence. Why the hell should suspects be forced to make the State's case?
Where else but the UK can we seriously listen to the police whining that it is too difficult for them to give the Defence a copy of all their evidence? That happened, and now it is the police themselves who decide what material to give to the Defence. Worse, they only do this after the Defence has sent them a copy of the accused's defence.
In what other nation that claims adherence to the rule of law can we institute secret courts where neither the accused nor his lawyers can know the evidence against them?
In what other common-law jurisdiction can the accused be barred from facing his accuser, who can even hide behind a pseudonym and a black screen in court?
And what other Western nation stomach the fact that at any moment, for no reason whatever, you can be stopped on the street and searched by the police?
What other nation could even contemplate instituting these measures and still unblushingly make a claim to be a nation of laws?

And just in case this panoply of measures fails to convict, the State can always wave an accused’s previous convictions before a jury.
We have rarely taken Justice seriously in this country. The home of Magna Carta is seemingly unable to place any significant restraints on the ability of the State to prosecute. And the thin line between prosecution and persecution grows ever more threadbare.
Of course, you will doubtless persuade yourself that these things are irrelevant, they only apply to "bad" people. Surely you could never, ever find yourself being the focus of police attention? I sincerely hope that you are. Not out of any malicious desire, but because only then will you begin to see the dangerous imbalances in both State power and the criminal justice system. Because I have never met anyone who has come away from even the most fleeting contact with that system who hasn't felt that their illusions have been shattered.
And the next time you hear someone say that it is the defendant who has all the rights, that the criminal justice system is unbalanced in favour of criminals, try to pause that part of your brain that is lured by populist slogans and re-read the above. Then ask yourself if you would feel comfortable if a vanload of police turned up on your doorstep.


  1. Well said Ben

    I've been watching exactly these changes you describe with increased concern over the years...

    I do wonder if Orwell's 1984 should be required reading for every politician but I fear even if it were they'd treat it as a manual rather than a cautionary tale -.-

    Mind you, if you think it's bad here it's /much/ worse in America and at least the state haven't gone for restoring the death penalty as yet...

  2. I don't have a problem with the rejection of the Double Jeopardy law. Procedure shouldn't override justice. Likewise, if a convicted person is later found to be innocent, then there'd be no argument for his continued imprisonment on the basis of the original trial. But having said that, and mindful of the points you make, how (and why) legislation has been implemented is pretty dubious.

  3. Oh hear, hear and hear, hear again, Ben!

    As you say, whatever the police have asked for in order to save them actually having to do some real policing, they have been given. And this has been sold to the more malinformed section of the populace (that is, somewhere between 75 and 90 per cent) under the lie that all the cards are in the hands of the nasty suspects.

    Same section of the populace swallow this because they bask in the comforting delusion that it will never, *can* never happen to them or one of their own. After all, they're not one of the 'criminal classes', are they?

    It will only be when the whole thing comes around and bites *them* on the arse that they will finally realise that if we do not carefully protect the rights of those of whom we/they disapprove, then it makes it that much easier for those in control of the system to strip those rights from the rest of us.

  4. Re double jeopardy: as a matter of principle I'm unhappy with any law that states that something must always or never occur. A law that allows no flexibility whatsoever will tend to create manifest absurdities, such as someone confessing to a crime but being beyond the reach of the law. I'm very comfortable with the double jeopardy rule no longer being an absolute. I think the current situation (given the requirements for fresh evidence, the role of the court of appeal, etc) strikes a decent balance and I expect retrials to continue to be extremely rare. And rightly so.

    Re the right to silence: as you well know, the law on adverse inferences is far more nuanced that this blog suggests. Adverse inferences can only be drawn in specific circumstances and each situation makes a fair bit of sense to me. For example, someone is arrested with a blood stain on his shirt. After obtaining legal advice and etc he is asked to account for the blood stain and is unable to do so. A month later he has a story. Why didn't he say anything at the time? That to me is a perfectly natural inference for a jury to make.

  5. "And just in case this panoply of measures fails to convict, the State can always wave an accused’s previous convictions before a jury."

    Not entirely accurate, Ben. For any bad character evidence such as previous convictions, an application has to be made and a judge has to rule, after hearing arguments from both sides, on whether it is relevant or not. If it's not relevant to the crime the defendant has been charged with (eg a conviction for theft when the defendant is charged with murder), the jury will never know about it.

  6. You may quibble over the details and the caveats but the fundamentals are correct - the State can and does have and use all of these powers. That it can only do so, sometimes, in limited circumstances doesn't alter the fundamental objection that it has these powers at all. Ben.


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