|Montreal, February 2, 2002 / No 97|
by Ralph Maddocks
Whenever I ponder the sayings and doings of the world's politicians, the above phrase from Alice in Wonderland comes wandering into my mind. I can recall complaining to a politician many, many years ago, that things were happening about which the people had never been consulted. His enlightening reply was that if one wished to make progress then it was no use asking the electorate because they would only reject your project out of hand. The only way to get something done, he insisted, was to do it and then get the lawyers to find a legal precedent and let the complaints diminish as the electors realized that it was too late to protest anyway. Most of us could probably find numerous examples of that kind of thing happening.
The latest example of such duplicity to come too my attention is a 700
page report written by Sir Robin Auld, and published on 8 October 2001.
Sir Robin Auld was appointed on 14 December 1999 by the Lord Chancellor,
Lord Irvine, to review how the criminal courts in England and Wales work
at all levels. Sir Robin has been a Lord Justice of Appeal since 1995 and
was first appointed a High Court Judge in 1987. He was educated at Brooklands
College and King's College, London, graduating with a 1st Class Honours
degree in Law in 1958. In 1963 he obtained a doctorate in law in 1963 and
was appointed a King's College Fellow in 1987. Obviously a man well versed
in Common Law as practised in our main English speaking countries.
By way of clarification, the responsibilities of the Lord High Chancellor include the effective management of the courts. The appointment of judges, magistrates and other judicial office holders. The administration of legal aid. The oversight of a wide programme of Government civil legislation and reform in such fields as human rights, freedom of information, data protection, family law, property law, defamation and legal aid. The office is older than any other except the Crown and in precedence, the Lord Chancellor is the second subject outside the Royal Family, ranking only after the Archbishop of Canterbury. Over the past thousand years or so the office of Lord Chancellor has evolved to become the answer to the problem of maintaining judicial independence in a Constitution which concentrates supreme power in a democratically elected legislature dominated by party politics.
Today, the appointment has become in effect what other countries would call a minister of justice. Unlike all other judges, however, he has no security of tenure, his office is held completely at the pleasure and disposition of the Prime Minister. The present incumbent, The Right Honourable the Lord Irvine of Lairg, first became Lord High Chancellor of Great Britain in May 1997 at the invitation of the Prime Minister, Tony Blair. The UK Government has said that it will seek the views of the public, political parties, and those working in the criminal justice system in order to gain "a broad consensus for enlightened and effective reform." The period for comment ended on 31 January 2002 and is to be followed by the publication of a White Paper, a document which will probably put an end to England's ancient liberties.
In his report, Sir Robin has made many recommendations, some rather esoteric and of interest only to practising lawyers in the UK, and this article is certainly unable to deal with all of them. However, among his key recommendations we find the following: Sir Robin proposes that magistrates' courts and Crown Courts be unified in a single criminal court structure with a new third intermediate District Division to be created. Cases would be tried, according to their seriousness and the likely maximum sentence, either by magistrates, by judge and jury, or in the new District Division by a professional judge and two lay magistrates. Magistrates in this proposed court would have no right to pronounce sentence, the judge would do that. The court, not the defendant, would decide which tribunal should hear a case. Thus he is proposing to abolish the longstanding right of a Briton to elect trial by a jury of his peers. Jury trials are to be abolished for a wide range of offences including assault, theft and drugs. The House of Lords has twice blocked attempts by the governing Labour Party to abolish this ancient right. The Government's third attempt has now, perhaps unsurprisingly, been bolstered by the Auld report.
Justice for an estimated 30,000 people a year will now be delivered by legal experts and officials rather than by a jury of the accused person's peers. Magistrates convict very significantly more than do juries. This is the thin end of a wedge which first we saw coming some time ago when the EU first tabled its infamous Corpus Juris project. Should anyone still be in doubt about what is intended to happen then consider another of Sir Robin's proposals. "In the meantime, I consider that the law should be declared, by statute if need be, that juries have no right to acquit in defiance of the law or in disregard of the evidence. I consider also that judges and practitioners in their conduct of criminal cases should acknowledge that truth and not invoke the ability of a jury to defy the law or breach their oath in that way. I recommend that the law should be declared, by statute if need be, that juries have no right to acquit defendants in defiance of the law or in disregard of the evidence, and that judges and advocates should conduct criminal cases accordingly."
The right of juries to judge the justice of laws was eloquently discussed by Lysander Spooner, one hundred and fifty years ago in his Essay on the Trial by Jury, when he wrote,
For more than six hundred years – that is, since Magna Carta, in 1215 – there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.Jury nullification is the citizen's last defence against State tyranny – the right for the ordinary man, in the form of a jury, to acquit despite the evidence and the law, if they consider the law to be unjust. Without this protection, the jury is merely a tool of the State. Justice Auld says abolition of trial by jury will limit the number of "perverse decisions" by juries and that there should be provision for appeal by the defence or the prosecution against a special verdict of a jury which on its terms is perverse. Interestingly, that famous jurist Lord Devlin, a former English Lord Justice of Appeal, was a great defender of that "perverse decision," as giving "protection against laws that the ordinary man regards as harsh and oppressive."
One may recall that 19th-century sheep-stealers, modern mercy killers, peace protesters, whistle-blowers and elderly shoplifters have all benefitted from "perverse" juries refusing to convict them. Such juries defy evidence, the law and the judge's instructions. Perhaps they believe the sentences are not proportionate to the crime. Perhaps they believe that the law is odious or idiotic. Sir Robin seems to be trying to ensure that this last defence of the citizen will disappear and it is interesting to read what the Lord Chancellor had to say.
Lord Irvine said: "The Government is grateful to Sir Robin Auld for his very substantial and important review of the criminal courts at every level. He offers a stimulating vision of what a modern criminal justice system should be – the criminal courts must be seen by the public to be fair and efficient and to meet the needs of everyone who uses them. Sir Robin has urged the Government to move beyond law, structures and rules which exist only for historical reasons. He reports that cases could be handled more predictably, that delays could be cut and that justice could be more efficiently dispensed without compromise in the fundamental requirement for fairness. Sir Robin makes some radical recommendations which will need the most careful consideration. The Government has taken no decisions on his Report and we are keen to encourage wide debate on these issues before we reach decisions early next year."
So there we have it "... law, structures and rules which exist only for historical reasons," nothing is said about ancient rights or constitutions. The reference to historical reasons is interesting because the system which Corpus Juris seeks to impose can hardly be described as modern. Another proposal to come out of the Auld report is that concerning Double Jeopardy. A defendant acquitted of a crime could be re-prosecuted, if new evidence emerges. In effect, this means that no acquittal will ever be felt as final. Having gone through the draining experience of a court trial one will never feel completely discharged. The reputation of acquitted defendants will never be fully cleared. At a time when the UK criminal-justice system is straining under the weight of numerous changes, one may well question the virtue of such a proposal on pragmatic grounds apart from the principle involved.
The UK Home Secretary David Blunkett having determined that terrorism was "threatening the life of the nation" has already proposed abolition of Habeas Corpus. As a result of the Anti-Terror Bill passed before Christmas, certain people may be locked up without trial. If tried, the court proceedings may be in secret. Prisoners needn't hear all the evidence against them. Defence lawyers would be hired by and responsible to the court. The lawyer wouldn't have the right to see the accused or the evidence. Officials, legal experts and politicians will administer this system of justice in secret. Blunkett's Anti-Terror Act also says: "Public authorities can disclose certain types of otherwise confidential information where this is necessary for the purposes of fighting terrorism and other crimes." The phrase "other crimes" is, as may be expected in this embryonic police state, not defined. European interior ministers have already agreed on a definition of terrorism. It includes people "who hoped to seriously alter the political, economic or social structure" of the EU. This would include Eurosceptics, Marxists, hunt saboteurs, GM crop activists, anti-road protesters, fuel protesters, and carnivalists against capitalism.
The freedom of officials and experts to access information on the private lives of British citizens has been given a generous boost in the last couple of years. Information from a wide range of sources the Office for National Statistics, the National Health Service, the Inland Revenue, the VAT (Value Added Tax) office, the Benefits Agency, and school reports can now be collated into a file on a citizen, without a court order showing cause. Other proposals put forward in recent Bills are that phone and e-mail records are to be kept for seven years. Child curfews have been extended. If you commit a minor offence such as defacing say a road sign, as has happened lately, a DNA sample is taken immediately upon arrest and retained even upon your acquittal or even if no charges were ever laid. This is because they wish to build up a National DNA Database.
Restrictions on travel can be placed on those convicted of drug offences, compulsory fingerprinting for those cautioned of a recordable offence has been extended and public authorities are authorized to carry out speculative searches of the DNA database. It will be a criminal offence to disobey a police officer who has told you to leave a demonstration outside any residential property and it will be an offence to attend a demonstration wearing a mask or painted face.
The English are absolutely fanatical when it comes to football (soccer) and there have been many incidents of hooliganism at matches both in the UK and in other countries. To deal with this, a court may take away your passport. The court must be satisfied merely that there are reasonable grounds to believe that making the order would help to prevent violence or disorder. Presumably, any previous involvement in related offences would provide such "reasonable" grounds. A football-related offence might include drunk-driving to and from a match or celebrations at an after-match function. It could be disorderly conduct in a pub where a match was playing. An offensive gesture by a player to the crowd could attract a private prosecution for disorderly conduct. Convictions could result in an up-to-10-year ban from all football matches, restriction of foreign travel and perhaps de facto imprisonment at a police station during domestic football matches. A police officer might issue an order to a fan requiring him to attend a magistrate's court the next day to defend his or her right to attend matches. Failure to comply would represent an imprisonable criminal offence.
Liberty, the UK human rights organization, commented: "A substantial number of the much-trumpeted powers brought in over the last 10 years are in fact unnecessary, because the police and others have been 'Hoovering' up new powers since the beginning of the 1980s (about 85 Acts dealing with crime and criminal justice since 1981)."
While the above brief synopsis may induce feelings of great concern, the consultation period announced by the government after receipt of the Auld Report ended two days ago. Already, there are some signs that resistance to many of its provisions is building. A report in the Times last week indicated that "PLANS to scrap the right to trial by jury for many offences are to be abandoned in the face of strong opposition led by prominent members of the Cabinet. Among those expressing grave doubts were David Blunkett, the Home Secretary, Lord Irvine of Lairg, the Lord Chancellor, and Lord Goldsmith, QC, the Attorney-General. Mr Blunkett in particular, bruised by fierce opposition to his anti-terrorism Act, believes that the Government must heed the many critics of its proposed overhaul of the criminal justice system. In addition, Labour backbenchers had signalled that they would give the proposals an even rougher ride than they did the anti-terrorism legislation. The result is an embarrassing climbdown over the central plank of the reforms: the creation of a middle-tier court comprising a judge and two lay magistrates who would take over from juries in up to two thirds of cases, such as theft, burglary and assault. It leaves plans to reform the system in disarray after previous attempts to legislate foundered when peers twice threw out a reform Bill in Labour's first term."
The EU-imposed Europe-wide arrest warrant is creating a swelling tide of resistance. Led by SANITY (Subjects Against the NIce TreatY), an organization devoted to detaching the UK from the EU, many thousands of letters and cards are pouring into Buckingham palace urging Her Majesty to withhold the Royal Assent from the Extradition Bill due to be introduced in the Commons in February. It will be recalled that the Extradition Bill will extinguish forever the right to Habeas Corpus long enjoyed by UK citizens. Last year's campaign against the Nice Treaty generated over 300,000 letters and cards to the Palace, as well as a petition signed by 28 peers of the realm. The Bill to ratify the Nice Treaty is still in its parliamentary stages with 3rd Reading of the enabling act due in February.
Perhaps I should not be so pessimistic about these infringements of our cherished rights since there appear to be some small signs of resistance appearing, but then I read a comment by UK Foreign Minister Jack Straw this week. A reply which showed, very clearly in my opinion, the way the UK government views its position. Returning from a trip, Straw was responding to a question asking whether Tony Blair, who has been perambulating all over the place as an emissary for George W. Bush, had been taking over the Foreign Secretary's job. Mr Straw replied, "He's not. The more critical an issue, the more a head of state is going be involved with September 11 and the use of our military action." As I read this, I wondered if anyone had informed Her Majesty Queen Elizabeth II that she was no longer Head of State...
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