Round-robins of ‘tough on crime’ legislation go from state to state, nation to nation. Here, noted Manchester QC Mark George analyses the cumulative effect of years of repressive laws in the UK, which have whittled away the traditional protections of the ‘rule of law’. Other Observer newspaper commentators take the debate further.
The assault on (UK) civil liberties has been long and laboured
A noted Manchester (England) QC wrote last month to The Observer newspaper columnist Henry Porter, in support of the Porter campaign for more attention to be paid for human rights.
Dear Mr Porter,
Your series of articles on civil liberty has prompted me to write on the wider impact of the continual assault on the rights of those accused of crime. We all remember the mantra of (UK) Labour in 1997 that they were going to be “tough on crime and tough on the causes of crime”, but the reality is that the second limb of that soundbite has, in fact, changed to being “tough on those accused of crime”.
However, the assault under Labour is merely the continuation of a process that had already begun under the Tories and, in particular, during the stewardship of Michael Howard as Home Secretary. The 1984 Police and Criminal Evidence Act revolutionised practice in police stations. Once police officers realised that they no longer had the power to prevent solicitors from being present in interviews and, under the new regime of tape-recorded interviews, the opportunity to “verbal” defendants, the number of cases in which there was a sudden confession by suspects declined dramatically. False confessions disappeared overnight and cases involving disputes over what was said in police stations, which happened in most trials before the 1984 act, are nowadays extremely rare.
That was 25 years ago; in the time since, I cannot think of a single legislative provision that has been designed to assist those on trial accused of a serious criminal offence. The assault on our rights was undoubtedly first led by the Tories. Howard’s Criminal Justice and Public Order Act 1994 was a typically mean and nasty piece of Tory legislation. It was this act that introduced the concept that the right of silence was no longer to be regarded as an unfettered right and was, in fact, to become more of a liability than a right. Sections 34 and 35 allowed a judge and jury to draw adverse inference from silence by an accused either in interview or at trial. Behind the legal language was the concept that a defendant’s silence had nothing to do with being frightened or incapable of explaining oneself adequately; it simply meant that a person had something to hide and was therefore guilty.
When Tony Blair’s version of perpetual conservative government got its chance, its first foray into criminal legalisation was the 1998 Crime and Disorder Act. Among other things, this introduced ASBOs (Anti-Social Behaviour Orders). These rapidly became the method of choice for criminalising young misfits.
The courts even helpfully categorised such proceedings as being civil, which is very convenient in that it made it so much easier to get hearsay evidence before the courts. Then, when the offender inevitably breached the order, he or she could be subject to penalties far beyond those that could have been imposed for a criminal offence that might have been alleged at the time of the original ASBO.
Such orders have become common currency, as they are cheaper to obtain and enforce. They have continued through into serious crime prevention orders (Serious Crime Act 2007, section 19) and civil proceedings (section 36), which means that the standard of proof is the civil one (on the balance of probabilities) rather than the criminal one of being sure beyond a reasonable doubt.
Breach is punishable, albeit after a criminal trial, on the criminal standard of proof, with five years’ imprisonment. The latest manifestation of this type of justice on the cheap is the idea of granting injunctions (civil proceedings) to restrain “gang-related violence” under sections 34-50 of the Police and Crime Act 2009 with a power of arrest for breach of the injunction. Although not yet in force, this is another example of a deliberate evasion of the criminal process because of that tiresome need for admissible evidence that persuades a jury so that they are sure of guilt before a conviction can arise.
Other New Labour legislative assaults on the civil and human rights of those accused of crime include section 41 of the Youth Justice and Criminal Evidence Act 1999. To the extent that this measure was intended to stop the offensive conduct of cross-examinations of complainants in rape trials along the lines that women in short skirts and who drink are fair game for a bit of extracurricular sex, this was both welcome and, no doubt, well intentioned.
However, as drafted, the provision was so draconian that it actually prevented a jury from being told that the complainant and the defendant were, and had been for some time, in a consensual sexual relationship. It tried to suggest that all rapes cases can be determined on the basis of taking a single incident completely out of context.
So draconian was this provision that even the House of Lords, not generally known as a hotbed of liberalism, had to declare that the provision breached the right to a fair trial. The Law Lords only avoided a declaration that the provision was incompatible with the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights by suggesting that the section could actually be read in a way that was in effect the opposite of what the words say.
Such was the mania of the feminists in the Labour Government that the Sexual Offences Act 2003 sought to criminalise all manner of sexual activity, invariably creating two or three new offences where one would have been adequate. Section 5 means that, if two 12-year-olds have consensual sexual intercourse, the boy commits rape and faces a possible life sentence.
Perhaps even worse, because of its potential to apply to almost every young person, section 13 makes any sexual activity (which includes kissing) between people under the age of 16 a criminal offence punishable by up to five years’ detention. It appears that only the discretion of the Crown Prosecution Service stands between young people engaging in entirely normal teenage behaviour and a criminal record and possible period in custody. This prompted Professor JR Spencer, a government adviser, to comment that these provisions were “flatly contrary to the rule of law” (the Times, 7 October 2003.)
Ah yes, the rule of law, remember that?
It has been invoked down the ages in the face of oppressive government legislation, but it seems to have been forgotten altogether under this shameless government. Not much evidence that David Blunkett, the author of the Criminal Justice Act 2003, had ever heard of such a concept, much less tried to square his proposals with it. But then, if you prepare your criminal legislation on the basis of the law and order agenda of the editors of the Daily Mail and the Sun, you are bound to find you have drifted far from the port of the rule of law.
So the CJA 2003 has made the introduction of the previous convictions of a defendant entirely routine purely because the government know that, once a jury knows that a defendant has “done it before”, they are far more likely to convict than if they had not known that fact. So too hearsay evidence – long regarded as alien to the criminal process, mainly because it is inherently unreliable – is now routinely admitted, again for the sole purpose of increasing conviction rates.
To this already long and sorry tale could be added the reports which emanated only in mid-2009 – I believe from Harriet Harman – that a review of the law on rape might also consider reducing the standard of proof to that of the civil courts. The only possible reason for this could be to improve conviction rates. Never mind that this would mean increasing the risk of innocent men being convicted. It seems only belatedly that Harman and her sidekick, Vera Baird, have realised that the real problem with rape cases is not what happens after they get to court (Observer columnist Nick Cohen reports that rape convictions are currently running at 58%, which seems remarkably high, considering the quality of the evidence in many of the cases I have seen over the years) but what happens when the complaint is being handled by the police.
No one could accuse me of being likely to vote Tory, but I am left wondering after the experience of the past 12 years or so whether the position of those accused of crime could possibly be any worse if we get a Tory government in a few months’ time?
When Howard was Home Secretary, it was hard to imagine anyone worse, but then along came Jack Straw, who in turn was succeeded by the appalling populist David Blunkett, each worse and more authoritarian than his predecessor.
And I haven’t even mentioned the control orders fiasco yet. After many years and repeated rebuffs from the higher courts, these seem finally to be in terminal decline – but not for the want of trying on the part of supposedly Labour politicians. How any government that had even heard of the concept of the rule of law could have countenanced locking people up for three months without charge beggars belief.
If it had been proposed by some authoritarian regime in Africa, it would have led to an international outcry, but this happened in England, the supposed birthplace of liberty.
Yours sincerely
Mark George QC
(This letter first appeared in The Observer newspaper on 31 January 2010 : http://www.guardian.co.uk/commentisfree/2010/jan/31/mark-george-henry-porter-civil-liberties – The letter is carried here with permission of Mark George)
Followng the article, there were dozens of comments. The ones below are a selection to give an idea of the response.
‘Nothing to fear’
We often hear that “if we have nothing to hide then we have nothing to fear”. Yet despite conducting myself morally and lawfully I certainly do fear our justice system. I’m sorry to say that fear is only intensifying. Indeed it seems the generally law-abiding public often have the most to fear. The vast majority of us make a conscious decision to act in a way that we believe to be morally right every single day. If the law did not stand we would be highly unlikely to to commit the acts which we describe as crime anyway. Yet incompetents and worse have the power to record, to secretly categorise & database us, to denounce us traitors to our country, our families and to our fellow Man.
It is for this reason I fear some terrible error being made, some mistake by an individual or group which results in my or mine being accused of something of which I / they have not done.
In the past I felt confident the system would protect me. That the truth would out. I no-longer have that confidence; indeed I fear the shattering of my life by a box ticking bureaucratic jobs-worth. It cannot be healthy for the soul this fear; and it is unhealthy for the spirit of our nation.
– 2PenniesWorth, 31 Jan 2010
‘It makes no difference who is in power’
…What is more striking is the growth in the volume of legislation since the start of the last century, measured simply by the number of pages. With the exception of two relatively short periods when it more or less fails to grow at all (1914 to 1918 and 1940 to 1945) the volume grows exponentially. It roughly doubles every ten years. It makes no difference who is in power.
It seems reasonable then to see this as a consequence of our system of government, and not as a party political issue at all. The decline in the perceived quality of the legislation is, I suggest, just an inevitable consequence of enacting such vast quantities. It cannot possibly be scrutinised properly.
…MPs are now so carefully selected for their supine character, so concerned to demonstrate mindless loyalty in the hope of receiving ministerial patronage and so thoroughly whipped that they think nothing of voting for bills they not read and have not debated.
– outradgie, 31 Jan 2010
‘View from the USA’
Well, welcome to the 21st century. It isnt what I expected at all, and from what I gather, neither did you. We in the US have been in a “culture war” since at least the Vietnam era with no clear winner but many losers, among those is our own civil liberties. Especially since 9/11.
Our government can evesdrop on conversations between cell phones with the “right kind of probable cause”, inside the US. Incoming phone calls to the US can be intercepted at will with no consent or knowlege. they can detain you for 48 hrs without arresting you, you and your property can be searched if the police have the “right probable cause”. All of this without telling you why, and further under the homeland security act can further violate your “right of privacy” without your knowlege or consent. The people at Gitmo face a harder future because they were technically combatants waging a guerilla war, the Geneva convention does not apply to them (unless we wish it to) The attempts to try those who stand a chance of having procedural evidence is slim, no one wants them in prisoned in their communities.(I cant say I blame them) We have come to believe that both our political parties are really two sides of the same coin. They both tend to behave the same way. The things that make them different is their priorities, one is better at economics and foreign issues, and the other is better at domestic issues. Either way, they are the exact same in dealing with law enforcement issues. We are starting to see that, albeit slowly. I dont like to think about where that leads us, because when I do it disturbs and frustrates me.
– madjack, 31 Jan 2010
How much real resentment is seething?
It’s true that a few more souls, like the writer of this article, are coming out into the open with their burning criticisms of, mainly, New Labour since 1997 in regard to the bonfire of civil liberties that has been continually stoked by arch-dictator Tony Blair in his guise as lead actor in a Shakespearean tragedy, but it’s a very small number overall. I suppose we will have to wait for the election to see just how much real resentment is seething in the average British breast – although the turn-out may be the lowest yet, such is our apathy.
– Little Tyke, 31 Jan 2010
‘Liberty falters when we disregard the basic needs’
In the bien pensant world, human rights are a significant topic. In some of our most oppressed and impoverished communities they’re an abstract. The right to a peaceful existence and security in your own home is not going to get debated when the entire estate turns into an armed camp after dark, each family sheltering within their own home and hoping to get through the night with the windows intact.
ASBOs are a crude weapon, sometimes misused by foolish bureaucrats against people who aren’t doing anything criminal, but to attack them and not explain how you would deal with the key problems that make them so popular now is the kind of lazy thinking that comes with a QCs income and a QCs cosy home in the suburbs. Liberty falters when we disregard the basic needs, for security and peace, or large chunks of our society. To forget that is as criminal as anything a politician might do to try and fix the problems.
– Dogstarscribe