Some interesting evidence here, particularly from Sir Ken MacDonald QC, former Director of Public Prosecutions, and on the matter of intercept evidence in court.
What Sir Ken MacDonald says about the infringements we managed to avoid is worth hearing (1 hour 2 mins in) – pretty shocking what has been proposed by those at the top.
We are not living in a police state. Not even a remotely authoritarian one. In fact we, all of us, have never enjoyed so much liberty—personal, political and legal. Yet to assert this view sets one at odds with a large part of liberal opinion in Britain.
… When I read the actual litany of complaint against the government, I felt unmoved. Forty-two days detention without charge and control orders (which apply to just 17 people)?
David thinks it’s fine to put N people under house arrest without trial provided N looks like a little number.
He’s not alone in this – this notion is also advanced by the Government when it wants to persuade us to accept yet more liberty infringing legislation (for example, secret inquests).
Yet the cases so affected will perhaps be the most controversial and therefore most deserving of scrutiny.
The Government’s word that this person must be kept under house arrest for secret reasons may be enough for David, but it isn’t for me.
And I believe strongly that everyone is entitled to know the charges against him and have a fair trial.
True, 42 days (which was rejected by parliament) is a long time but suspects are under constant judicial review—and both measures were a response to a real threat, something that never seems to feature in the liberty lobby discourse.
Um, in fact it does feature in the “liberty lobby discourse”. The question here is, is 42 days – which is by the way the longest pre-charge detention period in the civilised world, and we’re lucky it isn’t 90 days – a necessary and proportionate response, or should we get off our arses and come up with a way to try these people?
Then there is the surveillance state—CCTV cameras and DNA databases.
Nowhere have I heard of innocent people suffering injustice as a result of either technology
Then open your effing ears: two council CCTV camera operators were jailed for four and two months respectively for spying on a naked woman in her own home, for example.
… What is going on here? Of course there are some serious issues concerning the database state. But why do so many intelligent people appear to hold such disproportionate views about this subject?
Part of the answer is simple enough: the left (and right) needs a club to beat a government with, especially a betraying Labour government.
An obvious counterpoint is that supporters of civil liberties have been complaining since Labour came to power and before.
Now that Iraq is fading from view, or even coming good, a new club is required. Another reason was pinpointed by Rafael Behr in the Observer on 15th March: “Why are we liberals so pessimistic about liberty? It’s as if we secretly crave repression to give us a sense of political purpose.” As he points out, most of the organisers of the Liberty Convention are members of the establishment. For the privileged and influential, freedom is banal. So these liberal babyboomers with a romantic view of political struggle are tempted to invent a repressive state that gives their activism a more heroic purpose.
Of course! We civil liberties supporters are delusional. The database state is a figment of our imagination; our perception of an erosion of our civil liberties is really a manifestation of our secret craving for repression. I’m glad David has opened my eyes.
… We are moving from a world of privacy by default to one in which privacy must be designed into our systems. The modern social democratic state needs lots of data about us in order to fulfil the demands we make on it; not just trivial things like our bank account details to pay in pensions or tax credits but much more personal things like health records—to make sure we get the right treatment at the right time.
If there is too much suspicion of the state, and too many data protection rules, the state cannot give us what we want. Equally, if there are no rules or inadequate rules to protect the more sensitive information about citizens then there is the potential for abuse, either accidentally or intentionally. At present we risk getting the worst of both worlds.
There is a third aspect to this: the quantity of information stored. I’m not entirely sure the state needs to know everything about me. But that is what we are approaching (if we are not already there).
Certainly there would be less suspicion if the Government didn’t behave so suspiciously.
There are countless examples of good public service ideas that are falling foul of unnecessary restrictions. In Southwark, for example, there has been a successful experiment with a “one-stop shop” bereavement service that helps (often old) people deal with all the bureaucratic complications when a close relative dies. It was hoped that this would be extended to the whole country, but as different rules govern various national databases, they cannot share information with one another. Jack Straw has tried to change this [this is a reference to Clause 152 of the Coroners and Justice Bill], but in March he had to scrap the idea after coming under pressure from civil liberties groups.
This is a really pathetic argument. But again its something that the Government itself advanced.
You’ll note that Clause 152 does not mention bereavement – the power is rather more widely drawn.
This is a Bad Thing.
The reason why David’s argument is pathetic is that such a bereavement service doesn’t require legislation in the first place: the individual can just go to Southwark and tell them that their family member has died and Southwark informs up to “9 Local Authority (internal) departments of the death, it also officially notifies several Central Government agencies delivering benefits and pension services, general registration, driver’s license authority and tax credit support services”.
In short the individual chooses to tell Southwark about the bereavement and Southwark tells its contacts on the individual’s behalf.
This is a Good Thing and I don’t see any reasonable person objecting to it.
Giving Ministers such a broad power is a Bad Thing. Do read NO2ID’s Parliamentary Briefing on the Coroners and Justice Bill. Clause 152 will return.
Similarly a plan to replace the current humiliation and delay of applying for free school meals with a single, national website (able to share data across relevant departments) has been held up.
I’m not sure what David is referring to here.
There are big challenges ahead—such as who should be on the DNA database, and how the new database to monitor web use should be overseen—and the government has not set out clear and principled positions on these or many other aspects of the database state. It is also true that parts of the state, in particular the police and local authorities, sometimes take a cavalier attitude to the existing protections.
But it has set out clear positions: everyone must be enrolled on the DNA database after contact with the police, no matter whether they are innocent, charged, or convicted, no matter how old they are, no matter what the offence.
They have been told by the European Court on Human Rights that this position is contrary to the European Convention on Human Rights and must therefore be changed.
Nonetheless, the liberty lobby is unimaginatively one-sided. People want privacy where it matters, but they are also prepared to trade it off for other things—like safety from terrorism, or to stop tragedies like Baby P.
People have an inadeqate understanding of risks and an inadequate understanding of what databases can do and how they can be abused. It is to the shame of Ministers that they play on this lack of understanding and take advantage of fear in order to churn out ever more legislation and databases.
In fact, people happily give up their privacy every day to private or public bodies in return for the smallest convenience. Take Google’s new “latitude” website. It allows you to register your mobile phone. If you do this, and your friends do too, you can see where everyone is on a map, located by the chip in their phone. On a night out in central London, or in downtown New York, this could be very useful: has everyone got to the party or are they already moving on? Latitude has caused a minor storm among the privacy lobby—but you can be sure it will be popular.
The clue there is in the fact that one may choose to opt-in to Google’s service. Google didn’t come along to us and say, “you will enrol or you can’t have a passport / benefits / work in the air travel industry / etc” and you can opt-out when you like, too.
It might be useful if we started to see our data as similar to tax, something we willingly surrender to the authorities in return for various benefits, but over which there is also a political negotiation about how much to surrender. The liberty lobby, in this analogy, becomes the Thatcherite Taxpayers’ Alliance of the database state—wanting individuals to hoard their data and leaving the state powerless to serve citizens as it could.
Er no, I recognise that the public sector needs some data in order to serve us. Does it need all it has? Does it need all that the Government proposes to collect? Does it need to be shared as the Government sees fit?
Moreover, by turning these complex, technical debates into a story of noble defenders of liberty versus cynical, power-grabbing tyrants (whether politicians or officials) the liberty lobby reinforce the lazy anti-politics of the age—a sort of Ukip for the chattering classes.
The reality is made very clear by Guy Herbert in the NO2ID briefing on the Coroners and Justice Bill:
Buried among the numerous complicated and controversial provisions of this legislation is a single clause, clause 152 in the first draft of the Bill, which is a profound threat to privacy, liberty and the rule of law. It is enabling legislation that converts the Data Protection Act into a machine for massively increasing the dealing by government in information of all kinds. It is designed to allow ministers to use a fast-track regulatory procedure to sweep away data protection, human-rights considerations, confidentiality, legal privilege, and ultra vires when they would stand in the way of any use, acquisition or dissemination of information in pursuit of departmental policy. The availability of broad data-sharing along these lines would be a profound change in the way the country is governed, potentially altering the function of almost all other legislation. It should not be introduced at all, but certainly not without proper public debate. There has been no such debate. …
The developing philosophy of government by information management that we characterise as “the database state”, has become Whitehall orthodoxy without any systematic public debate, and the ISO should be regarded as the outcome of a desire to manage the citizen centrally as a single file, rather than permit separate relationships with separate organs of state, and of an impatience with mediating institutions such as parliament and the rule of law. In this view, information sharing is seen as one-sidedly good for everyone. This is set out very clearly in a series of official documents on “Transformational Government”. …
We think that the “barriers” are not random obstacles. They are principles that have evolved in the courts and been captured in statute precisely because they protect things in human life that are worth protecting. …
Lots of complaints along the following lines.
One step forward, two steps back. The Law Lords ruled last week that Abu Qatada – the Islamic extremist who has called for the murder of Jews, Americans and Britons, and who has been identified as al-Qaeda’s spiritual leader in Britain – can be deported back to Jordan, where he has been convicted in absentia of conspiracy to cause explosions. But the very next day, the European Court of Human Rights in Strasbourg decided that he should be paid £2,500 compensation because the Government detained him without trial in Belmarsh prison.
Er yes, two different cases: he won one, lost the other. What’s Palmer’s point?
And the Strasbourg court may yet decide that the Law Lords are wrong. Abu Qatada should not be deported back to Jordan: doing so would violate his human rights.
Difficult to see on what point they could decide the Law Lords are wrong. They might find that the diplomatic assurances from Jordan are inadequate? But that’s speculation.
Palmer later appears to suggest we simply ignore rulings we don’t like:
Jacqui Smith, the Home Secretary, has to authorise the payment of £2,500 to Abu Qatada and to each of the eight others that the European Court of Human Rights has ruled must be compensated. She could simply refuse to proceed with it, on the grounds that we have already paid him thousands of pounds in benefits, and it is outrageous to compensate someone who wishes to destroy British society.
What I think is outrageous is that people think those whom they find objectionable are somehow not entitled to due process or compensation for being unlawfully detained, and that we should simply ignore rulings (that we signed up to obeying, by the way) that we find objectionable.
What are the tenets of British society? I suggest one of them is that we obey the rule of law. In not allowing due process for objectionable people and ignoring adverse judgements we are not obeying the rule of law. Who then is damaging our society? The one person suspected (not convicted, or even charged, in an English court) of involvement in terrorism, or the multitude of influential people, from journalists to politicians, who are seriously suggesting a British Home Secretary should violate the rule of law when it’s convenient.
By the way, in relation to the £2,500: there are roughly 25 million households in the UK, so we could say that each household paid £0.0001; the average income of each household is roughly £30,000 pa, so we could say that each household paid on average 0.0000003% of its annual income. Or let’s say the final cost, including legal and benefits, is £1 million (just guessing here) – this means each household has paid 0.0001 % of its annual income. Multiply that cost by 10, if you like, to £10m – each household will have paid 40p, or 0.001%.
The point being that, yes, £2,500 is a lot of money to the average person – on the other hand, it is insignificant in the scheme of things, and we are only paying it because our authorities unlawfully imprisoned Qatada in the first place. Likewise the £1m, or even £10m, is insignificant in the scheme of things, and it looks like we could have got out of paying that had the authorities got their act together sooner, including in terms of allowing intercept evidence in court.
And of course it is the taxpayer who has to pay Qatada compensation for the mistakes made by the authorities.
Also, Palmer’s complaint that Qatada will be here for ages because the European Court has a backlog of cases isn’t particularly fair on Qatada (or any other applicant) – it suggests the Court could do with better funding and processes. Of course people will exhaust due process if they are able. But are those people at fault for it taking a long time?
Later, Palmer suggests formally withdrawing from the jurisdiction of the European court altogether:
The most incisively intelligent of the Law Lords, Lord Hoffman, has suggested opting out of the jurisdiction of the European Court now that the European Convention on Human Rights has been incorporated into our law. Can anyone seriously maintain that the judges in Strasbourg are more likely to reach wise decisions on how to apply human rights law in Britain than our own judges? Can it even be claimed that we would lose anything at all by reverting to the age-old system of having our own judges interpret our law, rather than having, as the ultimate authority, foreign judges who know nothing of it? To pose those questions is to answer them. The sooner we extricate ourselves from Strasbourg, the better for the rule of law in Britain.
I’m not sure if I’m being fair in suggesting there is an element of xenophobia here. The claim that foreign judges “know nothing” of our law is bizarre, particularly given that they refer to it throughout their judgements (and of course some of them are British). Palmer also seems to sneer at the judges who come from such countries as “Albania, Serbia, Azerbaijan, Bulgaria, Russia, Romania and Latvia”, because those countries (not the particular judges) have had problems with obeying the rule of law in the past. And there is some irony here, in that Palmer on the one hand suggests we violate the rule of law, but on the other he suggests those countries are bad because they violated it.
I’m not sure how withdrawing would work – I think that being a member state of the Council of Europe and the European Union (two different organisations) obliges us to be signed up to the Convention, and the jurisdiction of the court, so this would require renegotiation. But this seems a moot point in relation to Qatada’s case.
Part two of an ongoing, indefinite number of ‘observations’ in no particular order.
Eroding the right to trial by jury
It was proposed by this Government (when Jack’ Straw was Home Secretary) to remove the right to trial by jury for offences including theft, criminal damage, burglary and assault, or so-called ‘either way’ offences, and in fraud trials (proposed when David Blunkett, Charles Clarke, and John Reid ‘ were each Home Secretaries).
As the name implies, these can be dealt with either by the magistrates or before a judge and jury at the Crown Court. Such offences include theft and handling stolen goods. A suspect can insist on their right to trial in the Crown Court. Similarly, magistrates can decide that a case is sufficiently serious that it should be dealt with in the Crown Court – which can impose tougher punishments.
Lord Justice Auld, was asked by the Government in 1999 to inquire into,
the practices and procedures of, and the rules of evidence applied by, the criminal courts at every level, with a view to ensuring that they deliver justice fairly, by streamlining all their processes, increasing their efficiency and strengthening the effectiveness of their relationships with others across the whole of the criminal justice system, and having regard to the interests of all parties including victims and witnesses, thereby promoting public confidence in the rule of law.
He concluded that,
The defendant should no longer have an elective right to trial by judge and jury in ‘either-way’ cases. The allocation should be the responsibility of the magistrates’ court alone
I’m not entirely sure whether the Government thought up their proposals before or after Auld’s review. Regardless, he provided some very interesting material about and insights into juries.
But something I’ve always found odd is this:
Over the last two or more centuries judges have been more instrumental than juries in declaring and protecting the rights of citizens. Sadly, juries did not prevent the miscarriages of justice uncovered in the late 1980s and early 1990s arising, in the main, from falsification or concealment of evidence that so shook public confidence and gave rise to the appointment of the Runciman Royal Commission some ten years ago.
I say odd because I wonder how on earth can juries be expected to prevent miscarriages of justice arising from the police falsifying or concealing evidence (e.g. in the cases of the Guildford Four, Macguire Seven, and Birmingham Six). I would expect juries to tend to believe the police rather than the suspect. Wouldn’t you?
Furthermore the implication (or least a reasonable inference to draw) is that a judge, sitting on his own, might do better. But the judiciary did not prevent those miscarriages of justice either, did they? Indeed the judge at the trial of the Birmingham Six prevented the jury from examining their ‘confessions’. And when the Birmingham Six pressed charges of assault against the West Midlands police in 1997, the Court of Appeal rejected their case (supporting the appeal by the police against their writs), with Lord Denning (incidentally, seven judges agreed with him) saying that,
Just consider the course of events if their [the Six's] action were to proceed to trial … If the six men failed it would mean that much time and money and worry would have been expended by many people to no good purpose. If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous. That would mean that the Home Secretary would have either to recommend that they be pardoned or to remit the case to the Court of Appeal. That was such an appalling vista that every sensible person would say, ‘It cannot be right that these actions should go any further.’ They should be struck out either on the ground that the men are estopped from challenging the decision of Mr. Justice Bridge, or alternatively that it is an abuse of the process of the court. Whichever it is, the actions should be stopped.
In short, “we must not countenance the undermining of public confidence in the criminal justice system, so even if these men are innocent they must be kept inside”. Now that is an appalling vista.
It seems rather perverse then to conclude that a jury that was lied to, and who had evidence withheld from it, was somehow at fault for not preventing a miscarriage of justice.
Whatever; I’m drifting off topic and Auld dealt with the subject better than I can.
I also think it interesting, given the Government’s naked populism, that the public seems largely in favour of juries – absent other considerations I would expect the Government to improve the right, not erode it. But then there are other considerations.
There are the usual arguments that eroding the right to jury trial would only affect a minority of trials (and suspects). I wonder if there is an inverse of argumentum ad numerum, a logical fallacy (I’m perhaps incorrectly applying here) that consists of the assertion that the more people support or believe something, the more likely it is to be correct (or as I like to call it, the Millions of Flies Can’t Be Wrong fallacy). In other words, the assertion here is that we need not be concerned because only a few people will be affected, which incidentally seems to be something the Government claims of pretty much every objectionable liberty-infringing proposal.
There was also the argument that we should do away with juries in complex and lengthy fraud trials because they are thick. Well, that’s not quite how the Government put it, but that’s what they meant (they have since backed away from that position). They wouldn’t wait to see how the reforms of case management would play out – oh no, let’s have more reform. And the Parliamentary machinations relating to the Fraud Trials (without Jury) Bill were symptomatic of the lengths the Government go to in order to get objectionable measures on to the statute book. (We are in the odd position of having the power on the statute book, within the Criminal Justice Act 2003, but it cannot be used unless it is approved by both Houses of Parliament…)
If I recall correctly some former jurors have strenuously objected to being called incompetent, and suggested that, if the state minded adverse judgements so much, perhaps it could put its case a little better.
Apparently the ‘slippery slope’ or ‘thin end of the wedge’ argument is a logical fallacy. I must however insist on using it here because you can quite clearly see that if we agree a fraud trial is complex and therefore requires that the suspect be tried without a jury, any number of other trials – say, terrorism, serious organised crime – could be equally if not more complex, and therefore if they are equally or more complex, why shouldn’t they be tried without a jury?
It is for that reason (if you generally support jury trials, of course) that you should be very wary of proposals to get rid of juries.
There are of course reasonable ways to ‘streamline’ trials – improve case and trial management. For example, apparently one judge tells the prosecution to pick the best four or five points they have out of their ten or twenty, and just proceed with those.
One more important thing about juries is their de facto right of ‘jury nullification’. This is where they can – merely by being a jury – acquit a defendant despite his violation of the law. They are rarely informed they have this ability.
Juries don’t only appear in criminal cases. They are also involved in inquests – not every inquest, just the most serious / controversial (out of 500,000 deaths in England and Wales each year, only 500 have inquests with juries). The Government has proposed getting rid of juries in ‘sensitive’ inquests, in its recent Coroners and Justice Bill (view its progress here). Again there was the argument that only a minority of inquests have juries. Why not get rid of them altogether? Of course that is unreasonable. We should have (or get rid of) juries based on the merits, not on the numbers.
The ostensible reason for getting rid of juries is to deal with inquests, such as Azelle Rodney’s, where the case seems to rest on intercept evidence. The Government’s solution is to get rid of juries and have security cleared coroners. And of course the Government says it should be up to the Government, not a neutral and informed decision-maker (a coroner or judge) whether or not a jury should be involved.
Of course there is a much more reasonable solution – for instance, we could treat intercept evidence in inquests in a similar way as it’s treated in criminal cases.
At the time of writing, I think the Government has backed off from demanding it be given the power to appoint coroners in such cases. Their approach here was ridiculous – there was no way such a power could be considered fair (and it would definitely be unlawful under Article 2, right to life, of the European Convention). Suppose you killed someone – would it be fair to be able to appoint your own judge?
Essentially that is what they suggested, that the state should be allowed to appoint their own coroner to oversee an inquest into a death that may have been (or was known to be) caused by an agent of the state. This affects ordinary people, not just suspected terrorists and criminals, such as the families of the soldiers killed at Deepcut barracks.
(There is more in this Bill to be concerned about, as Liberty and others make very clear.)
The purpose of the criminal justice system
I have to wonder about the Government’s motives here. I think Auld was genuine about the need for reform. But what’s more important to the Government? Delivering justice fairly or streamlining all their processes, increasing their efficiency, and/or political expediency? Performance management, targets, and managerialism?
We know Tony Blair’s opinion:
For 8 years I have battered the criminal justice system to get it to change. And it was only when we started to introduce special ASB laws, we really made a difference. And I now understand why.
The system itself is the problem. We are trying to fight 21st century crime – ASB, drug-dealing, binge-drinking, organised crime – with 19th century methods as if we still lived in the time of Dickens.
I just want to point out that here that he suggested we never had anti-social behaviour, drug-dealing, binge-drinking, or organised crime before the 21st century – however, one need only look up Mother’s Ruin to put the lie to all of that in an instant.
Also, 19th century methods (wot, like gathering evidence, finding motives, presenting the case to court?) are inadequate not on their merits but because they are from the 19th century – another logical fallacy, argumentum ad antiquitatem, or ‘something is bad because it is old’. This is curious because Blair seemed to wholly approve of fingerprinting, which dates from the 1700s B.C., if not earlier Yes, B.C.: ‘Before Christ’.
The whole of our system starts from the proposition that its duty is to protect the innocent from being wrongly convicted. Don’t misunderstand me. That must be the duty of any criminal justice system.
But surely our primary duty should be to allow law-abiding people to live in safety. It means a complete change of thinking. It doesn’t mean abandoning human rights. It means deciding whose come first. I believe three things work.
First, a radical extension of summary powers to police and local authorities to take on the wrong doers.
We will publish plans to do this by the end of the year. They will tackle specifically binge-drinking, drug-dealing and organised crime; and develop existing laws on ASB.
Second, we need a uniformed presence on the street in every community. Officers on the beat is what the public have wanted for years and they’re right. I have seen teams of police and CSOs in action. It works. We want them across the whole of Britain over the next few years.
Third, give our young people places to go so that they’re off the street.
In other words he claimed the “primary duty” of a criminal justice system is not justice but (ostensibly) the protection of everyone other than the suspect. I confess this is so alien to my view (and what I understand to be the reasonable view) of the criminal justice system that I initially had trouble comprehending what he was talking about.
As a symptom of Blair’s somewhat peculiar perspective on the criminal justice system, I’d also like to mention that he demanded to know of Foreign Office officials why they were seeking assurances of Egypt that people deported there would not be subject to “ill treatment whilst in detention” and that they would “receive a fair and public hearing” – according to him, such things were, and I quote, “a bit much“.
Blair never explained how innocent people who become suspects are protected by such a system. And he never provided evidence that those “three things work” – nor his definition of work – he merely claimed to “believe” that they work. (But I’m not sure he sincerely “believes” in much at all.)
I think a reasonable definition of ‘work’ in the justice system would include the following: it deters people from committing the crime; fairly determines if a suspect committed the crime and appropriately punishes that person; reduces the likelihood of him committing that offence again or indeed any other (recidivism); justice must be done and seen to be done; it should operate as quickly as is reasonable.
So does the use of summary powers or summary justice ‘work’? Is the target of “offences brought to justice” (where ‘justice’ can merely mean, ‘dealt with’) appropriate, reasonable, productive?
The huge growth in on-the-spot fines to keep offenders out of the courts is in danger of bringing the law into disrepute, the Lord Chief Justice’s chief of staff [Lord Justice Leveson] says. …
… summary criminal proceedings … have ceased to be summary. There has been an incremental growth in paperwork and procedural formality and of the time that the formalities take to bring a case to trial. So that, in some parts of the country, it has been taking over six months to bring simple and straightforward criminal prosecutions to court. This is one of the factors that has been responsible for the growth of ‘diversion’ that is the administration by the police of conditional cautions or fixed penalties, so that the lesser offences do not come within the purview of the court at all. Diversion can make sense in the case of some minor offences which do not require to be dealt with on an individual basis. The Magistrates are concerned, however, that there should not be removed from their adjudication cases that call for an individual sanction that it is designed to prevent re-offending. I share that concern, and I am also concerned at the length of time that is elapsing before cases are brought to trial before the Magistrates.
The current system of measuring police performance has distorted operational priorities, criminalised many individuals for trivial misdemeanours, and prevented forces from focusing on what is important locally. There is much to be welcomed in initial attempts to reform the performance framework. We are pleased that the generic targets for offences brought to justice and sanction detections, which encouraged forces to focus on the easiest crimes to resolve rather than those which have the most significant impact on public safety, have been removed from the 2008/09 statutory performance indicators …
I think Blair’s comrades were and continue to be of similar bent. Certainly proposals for reform have not stopped coming – 60-odd criminal justice bills in 11 years, over 3,000 criminal offences etc. I don’t think there is anything malign – it’s just that the people in charge don’t have as much respect for our traditional (and proven) freedoms and rights as they do for political expediency; and law and order is one of the most important political issues, so they have to be seen to be doing something, even if it means churning out ever more legislation.
I’ll give you an example of something that made me think “what a complete waste of time”: when they made Causing a Nuclear Explosion a criminal offence. Quite why causing a nuclear explosion would not be covered by S2 Explosives Act 1883 (offence to cause an explosion likely to endanger life or cause serious injury to property), or indeed any other offences of harm to people or damage to property, such as the law on murder, I just don’t know, and nor it seems does anyone else.
What else can be done to punish wrongdoers more ‘efficiently’?
Reducing and reversing the burden of proof
The criminal standard of proof is ‘beyond reasonable doubt’ – the civil standard of proof is ‘more likely than not’.
A lower standard of proof would make it easier to punish wrongdoers, wouldn’t it?
In 2004 the Government proposed lowering the standard of proof in trials relating to terrorism or organised crime (see also this). Perhaps not quite to the civil standard but certainly less than the criminal standard. Sadly the response to this suggestion was so overwhelmingly negative that we heard no further detail.
We could also unreasonably reverse the burden of proof, for example in relation to s49 Regulation of Investigatory Powers Act, notices to require disclosure of an encryption key. Apparently it is rather far-fetched that someone might forget the key to encrypted information, so the onus is on him to prove that he has forgotten it, or of he goes to jail.
But why bother with criminal trials at all?
The right to personal liberty as understood in England means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification.
That anybody should suffer physical restraint is in England prima facie illegal and can be justified (speaking in very general terms) on two grounds only, that is to say, either because the prisoner or person suffering restraint is accused of some offence and must be brought before the courts to stand his trial, or because he has been duly convicted of some offence and must suffer punishment for it.
Over the past 20 years, public policy has increasingly reflected the view that criminal prosecutions and sentences alone may be an inadequate legal response to criminal and other unacceptable behaviour.
The statute book now contains a growing number of examples of a different model: powers enabling individuals or public authorities to seek civil orders from a variety of courts to prohibit undesirable behaviour, backed by criminal sanctions if the subject of the order breaches the order.
As civil orders are rather easier to obtain than criminal sanctions, being subject to a lesser burden of proof, it is no wonder they are attractive to legislators.
Here are the examples the Committee gives of these “inroads into personal liberty”:
- The Company Directors Disqualification Act 1986 created a civil remedy of disqualification, which enabled the court to prohibit a person from acting as a director; breach of such an order is subject to criminal sanction.
- Part 5 of the Criminal Justice and Public Order Act 1994 created a power for police to request that a local authority make an order to prohibit trespassory assemblies which could result in serious disruption of the life of a community or cause damage; breach of an order made under these provisions may result in criminal prosecution.
- Part 4 of the Family Law Act 1996 conferred powers to make residence orders (requiring a defendant to leave a dwelling house) and non-molestation orders (requiring a defendant to abstain from threatening an associated person); criminal sanctions are available for disobedience to these orders.
- The Protection from Harassment Act 1997 created a criminal offence of harassment (section 1), but section 3 also created a civil remedy, enabling individuals to apply for an injunction in the High Court or a county court to restrain another person from pursuing conduct which amounts to harassment, and breach of such an order was made a criminal offence.
- The Crime and Disorder Act 1998 created anti-social behaviour orders(ASBOs); local authorities were empowered to seek orders from the magistrates’ court where a person acted “in a manner that caused or was likely to cause harassment, alarm or distress” (section 1). The Act also created sex offender orders; a chief officer of police was given power to seek such an order where a person is a sex offender and that person acts “in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public from serious harm from him” (section 2).
- The Football (Disorder) Act 2000 created “banning orders“, designed to prevent known football hooligans from causing further trouble at home and abroad. Breach is subject to criminal penalty.
In fact there are two types of banning order that can be made: one, on conviction of an offence; two, on a complaint.
- The Anti-social Behaviour Act 2003 amended Part 8 of the Housing Act 1996 to give powers to housing authorities to seek ASBOs.
- Part 2 of the Sexual Offences Act 2003 (which repealed the Sex Offenders Act 1997) created “sexual offences prevention orders“, “foreign travel orders” and “risk of sexual harm orders“.
- The Prevention of Terrorism Act 2005 created control orders “against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism” (section 1) and “a person who, without reasonable excuse, contravenes an obligation imposed on him by a control order is guilty of an offence” (section 9).
The obligations of the control order must be considered in their entirety, but it has been found by our judiciary that 16 hours or more house arrest is a deprivation of liberty and therefore the control order must be amended or quashed.
More recently there are Violent Offender Orders, and Serious Crime Prevention Orders of which the Committee said:
We draw to the attention of the House the fact that the far-reaching restrictions of a SCPO may be placed on a person against whom no criminal proceedings have been instituted or who has been convicted of no criminal offence.
Moreover, the restrictions which can be imposed are not limited to conduct forming part of the particular type of crime which has been proved, by civil standards, against the defendant.
ASBOs and other types of control order that now exist on the statute book generally deal with small-scale anti-social behaviour and have little impact on third parties associated with the subject of those orders. SCPOs will have a much wider reach. …
A broad question for the House is whether the use of civil orders in an attempt to prevent serious criminal activity is a step too far in the development of preventative orders.
Whether or not the trend towards greater use of preventative civil orders is constitutionally legitimate (a matter on which we express doubt), we take the view that SCPOs represent an incursion into the liberty of the subject and constitute a form of punishment that cannot be justified in the absence of a criminal conviction.
Meanwhile a second anti-state battleground had opened up, as libertarians of right and left attacked the government for Big Brother-like interference with the privacy and freedoms of the citizen. Labour’s plans to introduce identity cards, to allow police to hold terrorist suspects without trial for 42 days and the widespread use of CCTV cameras in public places were seen by conspiracy theorists as sinister encroachments on ancient civil liberties.