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This climbdown is liberal, not Conservative

In Events, Home Affairs, Ideology, Judicial Spotlight, Law And Order, Party politics, The Media on June 21, 2011 at 11:53 pm

David Weber

I respect Ken Clarke, as a politician and more importantly as a political thinker, but some of his reforms weren’t liberal, just as much as they weren’t Conservative. At the heart of the Legal Aid, Sentencing and Punishment of Offenders Bill was a scandal, one which should have been obvious even underneath the noise and fury that erupted over Clarke’s ill-informed comments about rape, but has still gone largely uncommented on, which is deeply troubling. I refer to the damage that would have been done, to a fundamental principle of justice, by the proposal to cut sentences by as much as 50% in return for an early guilty plea.

This is precisely the proposal which the Guardian, in a typical bout of sheer missing the point, described as “a sensible move to relieve the pressure on Britain’s creaking courts”. The latter may be true, but the policy can only be described as sensible from a cold, bureaucratic, and morally corrupt perspective, the perspective of those who care nothing for justice and everything for money above all else.

Has the Guardian considered the stigma which is already attached to being falsely accused of a crime — particularly the most serious and horrifying of crimes? Has it occurred to the sadly anonymous writer of its editorial that there are already numerous incentives for the accused to plead guilty, not out of honesty, but as a gamble for the sake of an easier future? It should have, for such nightmares are frequently reported, and even more frequent in real life. Not only does plea bargaining already exist, but it actually goes far too far. In reducing the cost of justice it perverts the cause of justice, bargaining away the right to a fair trial. “Innocent until proven guilty” becomes “do you want to risk being proven guilty?” Far from it being “sensible” to increase plea bargaining, it would actually be “sensible” to abolish or at least reduce it — at least from a perspective of moral sensibility.

One would hope that it is for these principled, and most definitely liberal reasons, that David Cameron et al have decided to abandon this “reform”. One has to be sceptical, particularly given Ken Clarke’s reputation for liberalism, and the association of the Liberal Democrats with his agenda for reform in the Ministry of Justice. I suspect that if No. 10 had been motivated solely by liberal principles, it would have held back from interfering with Clarke’s agenda due to a mistaken association of liberalism with the Liberal Democrats. Additional policies announced at the same time, such as a new mandatory prison sentence for certain knife crimes, are distinctly conservative in nature.

More likely is that a tipping point of unpopularity with Conservative backbenchers, and with certain parts of the general public, has been reached; and that the rewriting of Clarke’s bill is a conciliatory gesture in the aftermath of the rewriting of Andrew Langsley’s NHS bill. It is certainly true that the bill had numerous “Conservative” objections to it, not least because the halving of sentences in some cases could have led to very short sentences indeed, for very serious crimes. But this merely demonstrates that conservatism and liberalism are not always mutually exclusive, and that liberals should not be associated with a policy just because conservatives are opposed.

But despite Downing Street’s arguably cynical motivations, the u-turn on this bill is something Liberals should be thankful for, not morose. Liberal Democrats should put their party’s ego (sorry, ‘influence in government’) to one side for a moment, and actually consider if, were they not in government, they would be supportive of or horrified by this particular proposal. Then they should put that response in front of any regrets they might have about their influence in the coalition, and whether the prevailing direction is conservative or liberal, because at the end of the day, it is more important. Real lives, real injustices, are always more important.

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From one extreme to another…

In Home Affairs, Ideology, Judicial Spotlight, Law And Order on September 14, 2010 at 11:46 pm

David Weber

Part of September’s Law and Order Series

I would like to take a brief ideological break at this juncture, and shift the focus of my critique of the anarchist position to look at the far more common presence of authoritarianism.

We could start with the death penalty. This is one of the frequently cited areas where politicians supposedly part ways with public opinion, although given that ‘evidence’ for this often takes the form of polls run in the wake of sensational crimes, I have my doubts. Nevertheless, it is certainly clear that public opinion on the subject is far less consensual than political opinion, where support is largely confined to the fringes.

Why is this, you may ask? I suspect that is an answer which has its roots in many factors, not least including the “grey wash” created by our electoral system. One I’d like to think has most influence is that the more informed you are on a subject, the less likely your opinion is to flip-flop.

And in most cases, opinion polling shows far more evidence of flip-flopping than it does anything meaningful. In the run up to the election, it was established fairly firmly that the public were in favour of spending cuts — unless it affected health, of course. Or education. Or pensions. And against tax rises. But we shouldn’t let those dastardly bankers get off lightly, better slap a couple of hundred extra taxes on them before you touch my darling child’s trust fund. And in favour of balanced budgeting. And in favour of the Tories’ line on immigration. But in favour of Labour’s policy.

Apart from illustrating my scepticism of the “great unwashed masses”, I hope this might demonstrate how the existence of a “political class” might not necessarily be a bad thing. Certainly, given that government is supposed to “amplify all of the factors that can cause immoral behaviour”, I see a surprising lack of evidence for this in the criminal justice system here, which has been slow to respond to public opinion.

But unfortunately not slow enough. Although the death penalty has no serious chance of being reintroduced, the public’s attitude towards crime in general has influenced the political sphere, and entirely too much so. The second term of the Blair government not only allowed for the first infringement to a criminal trial by jury for centuries, but according to the Director of Public Prosecutions of the time, Ken MacDonald, Blair himself suggested diluting the burden of proof for the most serious offences*. Blair was worried about the impatience of the “middle classes” at a criminal justice system which was perceived to be slow to deal with criminals.

And if you take the view that this is merely government perverting the substance of public opinion and not representing it, ask yourself this: why so little outrage? Why so little unease? A few academics write worried letters, and the country (or rather more accurately, the media) moves on, as if it was only of passing interest.

The simple fact is that “innocent until proven guilty” may sound like a principle that everyone believes in, but in reality it tends to be far less certain than many of us would like. Just witness the attitude towards “terror suspects”. Every time the government is unable to deport a terror suspect, many wax lyrical of the “outrageous” Human Rights Act “perverting” the course of justice. However, hardly any appear to think of mentally adding a question mark to their thoughts when they read “terror suspect”. Do they know the suspect is guilty? Are they certain he has committed a crime? If not, why are they willing for them to be treated however the State pleases?

Despite a veneer of outward belief in the principles of justice, many people think that the State can, more than ever before, be sure that someone has committed a crime. Who hasn’t heard the “DNA evidence” chestnut, used to justify such views? The very example of DNA evidence is another excellent illustration of areas where the public, not just the government, are generally out of touch with the facts. The reliability of DNA evidence is far more disputable than many realise or would like to admit. According to a recent New Scientist article, in an example case, different methods generated different probabilities of error, ranging from 1 in 3, to 1 in 95,000! But if you speak to many you would think it was crowning proof of the need for a death penality.

So criminal justice is perhaps the core of my belief in the State — not because I particularly endorse violence but because I wish to limit it. There is simply no evidence in this field that people would exercise power any less savagely privately than public servants do publicly. Quite the opposite, in fact.

* Taken from a seminar in the Compass Conference 2010, “Why has the left become so illiberal?”. Further details can be found here: http://www.designtoday.info/aziziye/?p=670

The puzzling case of Paul Clarke must be addressed

In Events, Home Affairs, Judicial Spotlight on November 20, 2009 at 6:10 pm

BY TOM KENNEDY

When Paul Clarke handed in a shotgun he had found to the police, he thought he was “doing his duty”.

I took it indoors and inside found a shorn-off shotgun and two cartridges. I didn’t know what to do, so the next morning I rang the Chief Superintendent, Adrian Harper, and asked if I could pop in and see him. At the police station, I took the gun out of the bag and placed it on the table so it was pointing towards the wall.”

Little did he know that this seemingly sensible decision could cost him up to five years in prison. Clarke was arrested, charged with the possession of a firearm and marched off to the cells by an officer Garnett. The former soldier was found guilty of possessing a firearm at Guildford Crown Court on Tuesday, with the jury taking little over twenty minutes to reach a verdict. Judge Christopher Critchlow stated: “This is an unusual case, but in law there is no dispute that Mr Clarke has no defence to this charge. The intention of anybody possessing a firearm is irrelevant.” Many would dispute that intention is irrelevant, at least any local who had read the leaflet printed by Surrey Police, which explained that “reporting found firearms” was one of many things you could do at a police station. The question that really needs to be answered is what Judge Critchlow would prefer Clarke to have done. Perhaps leave the gun on the floor, in the middle of the public field that his garden backs onto?

Clarke’s lawyer Lionel Blackman claimed “This is a very small case with a big principal”. How right he is. Unless this conviction is overturned, it has the potential to change the way that Britons think, and lead to fear and hostility being felt towards authorities such as the police. The  worrying thing is that if many of us found a gun, we would do exactly what Clarke did. After hearing about this case, passersby may be inclined to just leave the weapon on the floor, because they don’t want to be involved or accused of something that isn’t any of their business. Think about who could have picked that gun up if it had been left, and it becomes apparent how dangerous this form of thinking could prove to be. On reflection, Clarke has claimed “I wish I had just thrown the gun in a bush now – however wrong that is. But I wanted to do the right thing.” The message people will receive as a result of this conviction is that doing the right thing is dangerous. We should be encouraging others to think of their communities, look after each other and  be able to put their trust in the police force whilst carrying out their civic duties. This is exactly what Paul Clarke did, and now he’s waiting to go to prison for it.

The prosecuting brief, Brian Stalk explained to the jury that possession of a firearm is a “strict liability” charge. Of course it is, but common sense dictates that a utilitarian approach must be exercised here. The only reason that Clarke was in possession of the weapon was to hand in to the police. It was clearly not his weapon, and he had no intention to use it. If he did why would he have handed it in? The legalistic approach taken by the jury and judge is equally bemusing and disturbing. Public support has grown in favour of his cause, but Clarke is convinced that he will be sent to prison, saying “the judge has to do his job, and his job is to rule on a conviction”.

We must remain hopeful that this conviction can be overturned. If not, the consequences for Britain at both a social and legal level could be greatly damaging.

#paulclarke

In Events, Home Affairs, Judicial Spotlight on November 18, 2009 at 3:01 am

DAVID WEBER

…appears to be another example, hot on the radar, of a news story that has bypassed the mainstream press (apparently, according to the Sun, page 25 counts as an ‘Exclusive’) but proved a significant hit on the blogosphere and Twitter, exploding, if indeed it needed exploding, the popular myth that the established media is representative of free speech and popular opinion.

Quite why the Journos are so quiet is something of a mystery. I’m not one to see conpsiracy theories in the pattern of the shapes lurking under my bed, but I must confess that there is something a little unsettling about this story, one of the most pressing that the Sun has ever ran, failing to even make it onto their website, whilst the usual dross it churns out is uploaded as a matter of cheerful regularity.

What is the story? Well, the best way to find out is to follow the diverse set of links provided by searching the title of this article in Twitter, where it has become a hugely successful ‘trend’ over the last few days — but I will attempt to summarise the facts, in as unbiased a way as possible, below:

Paul Clarke is an ex-soldier, living in Surray. According to the reported facts, he found a sawn-off shotgun abandoned on his property, and contacted the police to arrange an appointment. He ommitted to inform the police that he wished to hand in an illegal firearm, so they were first made aware of the fact upon his arrival at the police station.

This is where the story gets interesting. The police arrested — and charged — Clarke.  They pressed charges of illegal possession of an illegal firearm, which we are now discovering is a significantly more serious charge than one would have thought.

Clarke was found guilty by the jury for illegal possession, and awaits sentencing. But the interesting fact here that he wasn’t prosecuted on the basis of having illegally procured the firearm, but merely upon having illegally possessed it, and, apparently, handed it in in the wrong way (you’re not supposed to hand in a firearm at the police station, but rather not touch it and simply report it to them, although to add to the confusion, police in Scotland apparently advised someone to do the former).

Moreover, apparently there is a strict liability clause in the legislation, which means that there is no defence in law for possession, and intent is irrelevant.

If this wasn’t enough, possession of certain firearms, including shotguns, carries a mandatory five year sentence, although “exceptional circumstances” (naturally, not prescribed) can be taken into account.

So it would appear, from the face of the evidence, that someone can be prosecuted, convicted and sent to jail for five years simply for handing a firearm in to the police in the wrong way, and failing to fully understand gun law.

This throws up a number of concerns, some of which, interestingly, go beyond the immediately obvious “what are the police thinking” or “this is a travesty of justice” reaction. We do not know, remember, that Clarke was innocent of criminal procurement of a firearm, as it hasn’t been tested in court. Indeed, we cannot make assumptions about the motivations of the police for exactly the same reason that we cannot make assumptions about Clarke’s motivations, because we have no evidence concerning them.

What we do have is some fairly serious evidence of a failing piece of legislation, and failings at the heart of the justice system. What’s more, many of these failings are not new, and indeed have been present, bubbling away underneath the surface, for decades.

The first concern is that the immediate response of the police should be to prosecute for illegal possession, rather than illegal procurement, as the latter would appear to be the far more serious issue, rather than the former. What matters is whether Clarke procured the weapon from criminal sources or whether he really did come across it innocently, far more than whether he posessed it illegally for a few days, or whether he handed it in in the wrong way.

The second concern; if charging for illegal possession is the only option when illegal procurement is impossible to prove, then there should be both strict measures in place to ensure that people are not guilty until proven innocent, and significant discretionary powers for both juries and judges to take circumstances and intent into account. Yet neither of these measures are in place, and the law is specifically drafted as to treat all guilty of illegal possession in the same manner.

The third concern, and I feel this goes to the heart of the problem, is that the judge and jury should be given so few discretionary powers in cases such as these. Indeed, the law goes out of its way to deny them these powers, through the strict liabiliy clause, and the mandatory sentence.

What is interesting is that in the guidelines to the Police, the Home Office says:

25.5 Anyone surrendering an illegally held firearm should be questioned discreetly with a view to establishing its history but, unless circumstances exist to give serious cause for concern as to its provenance (for example, if it appears to have been stolen), the person handing it in should not be pressed. The emphasis should be on creating an environment in which people hand in illegally held firearms.

…which many people have taken as evidence that circumstances should have been taken into account, but were not. This misses the point, however: Discretionary powers were available, but only to the Police and the CPS. This means that the Home Office fully understood that this was a charge that should only be brought in specific circumstances, but chose only to trust the Police and CPS to apply their discretion, and actively denied the courts of the same privilege. In essence, if we wanted to see justice done, we should trust the Police and CPS for it, and not the courts.

This amounts to an astonishing lack of confidence in our judicial system. It effectively proclaims that our way of applying justice for centuries is not fit for purpose, and that the people who decide to press charges and prosecute crime should also be in charge of basic principles of justice. This is laughable, yet as aforementioned, it is part of a power struggle that has been going on for decades, and illuminates a simple truth: Politicians do not trust the judiciary. Michael Howard is perhaps the most famous Home Secretary for this*, but numerous other politicians have followed his legacy, attempting to bypass the judicial process wherever possible, and reacting with anger to places where the Judiciary holds them to account for it (such as thee 2005 Afghan Hijackers case, for example). What Howard started with Mandatory sentences, Labour have followed,  and the Conservatives have pledged to extend,  by setting in place four years for knife possession; so it is clear that the lesson is not being learned. Yet here we have a simple case that demonstrates the ineptitude of this sort of legislation. The judiciary may be unelected, but at least it has to  regularly make decisions again on the same subject. Politicians only have to get it wrong once; and the result is badly written, draconian legislation that undermines  confidence in the law, and makes us all the more unsafe.

Hat tip: Liberal Burblings, Constantly Furious, Jack of Kent, Sharpe’s Opinion, and of course Twitter.

*John B makes the point in the comments that this particular clause has been around a long time prior to Howard’s stint as Home Secretary. It would seem that these problems go back a lot longer than I’d previously realised.

Is punishment justified?

In Home Affairs, Judicial Spotlight on September 24, 2009 at 4:43 pm

This essay will seek to answer two questions. Firstly, is punishment justified in principle? Can a coherent justification of punishment be provided? Secondly, is punishment in its current form in the UK justified? Does it meet the conditions for justified punishment as specified by the answer to the first question? This essay will start by defining punishment, then will consider four purported justifications of punishment – that it has a legitimate function as a deterrent, that it protects society, that it rehabilitates criminals, and that it is (justly) retributive. This essay will argue that deterrence does not justify punishment, that protection and rehabilitation only justify punishment provided stringent conditions be met, and that retribution-based justifications offer the best prospect of justifying punishment. However, the claims needed to justify retribution – especially that the guilty deserve to be punished – raise uncomfortable questions about to what extent we can be held morally responsible for the upshots of luck. This essay will conclude that many aspects of the UK criminal justice system are unjustified, the main end not being retribution.

What is punishment? The Stanford Encyclopaedia of Philosophy defines punishment as “the authorized imposition of deprivations — of freedom or privacy or other goods to which the person otherwise has a right, or the imposition of special burdens — because the person has been found guilty of some criminal violation, typically (though not invariably) involving harm to the innocent.” This essay will use this definition, with the recognition that in the UK civil, as well as criminal violations can result in the imposition of punishment: for example the breaching of a (civil) anti-social behaviour order can carry a prison sentence of up to five years. (43% of children who breached ASBOs between 2000 and 2004 were given a custodial sentence.) Most civil violations, such as breach of contract, do not result in the imposition of punishment: the SEP notes that what marks out these “nonpunitive deprivations from the punitive ones is that they do not express social condemnation”.

What must we do in order to justify punishment? The SEP notes four requirements. Firstly, “we must specify…what our goals are in establishing (or perpetuating) the practice itself”. Secondly, “we must show that when we punish we actually achieve these goals”. Thirdly, “we must show that we cannot achieve these goals unless we punish… and that we cannot achieve them with comparable or superior efficiency and fairness by nonpunitive interventions”. Fourthly, “we must show that striving to achieve these goals is itself justified”: in other words, no “moral side constraints” on action have been violated by punishment.

Definitions aside, now let us turn to the justification for punishment in terms of deterrence. This sees potential criminals as rational individuals seeking to maximise their own utility. If the expected value (found by multiplying the probability of possible outcomes by their (dis-)utility) of crime is higher than the expected value of keeping within the law, then crime will be committed; the existence of punishment lowers the expected value of crime, so acts as a deterrent to crime. Deterrence is a popular justification, especially in the pages of the Daily Mail; in an article protesting against the possibility of community sentences for drug dealers, they quote David Green of Civitas, who says “All the real evidence on drug dealing and deterrence shows that deterrence does work.” However, deterrence seems to fail the second justification requirement. The criminologists Gottfredson & Hirschi (1995) argue that people with low-self control (a feature disproportionately found in criminals) have limited capacity to appreciate long-term consequences, such as imprisonment. This leaves the individuals “[un]restrained by the fear of detection”, a requirement for punishment to be an effective deterrent. “Prisoner Ben”, a blogger who has been in prison for over thirty years, makes essentially the same point: “deterrence only works with putative criminals if they believed that they would be caught. If you believe that you will get away with your crime, then the potential sentence is utterly irrelevant. And guess what? Most criminals are drunk, desperate or very confident. The possible sentence for their crime is of as much interest to them as the movements of the Hang Seng index; they either believe that they won’t get caught, or are so desperate for the next beg of smack that they don’t care.” Moreover, deterrence seems unfair. Surely if the only reason to punish A is to have an effect on B, then A’s rights are being unjustifiably infringed: justifications for infringing A’s rights have to do with A (for example if he deserves to have his rights infringed) not with B. To consider whether deterrence suffices as a justification of punishment, consider whether it would be justified to punish an innocent man if the net result would be to reduce crime. My intuition is that it would be not justified; the sacrificing of one man’s interests to benefit others (those who would be the victims of the crimes prevented by the innocent man’s punishment) seems to fail to respect the “separateness of persons”, Rawls’ objection to utilitarianism. Thus deterrence fails as a strategy to justify punishment; it does not fulfil the second and fourth necessary criteria.

The argument that criminals need to be put in prison in order to protect society from their harmful presence seems to fare slightly better as a justification for punishment. The second criterion is fulfilled; on a basic level, when criminals are behind bars they cannot harm those outside prison. It also seems that no moral side constraints are violated if restricting the liberty of some is necessary to prevent them from violating others’ rights; it seems justified to pin a man to the ground if this is the only way of stopping him murdering someone. However, protection only serves as a justification of punishment given certain, restrictive conditions. Firstly, there must be no other (reasonably efficient and fair) way of protecting society (the third criterion); this seems implausible, especially in light of evidence suggesting that prison only protects temporarily. In 2002 67% of adults reoffended within two years of leaving prison, compared to only 54% of those serving community sentences. Secondly, the person must pose a real, imminent risk to society: it is clearly not justified to pin down everyone who has even a small chance (eg 0.1%) of murdering someone. 78% of people sentenced to prison in 2003 had committed non-violent offences (i.e. offences that did not involve violence, sex or robbery); were these people that much of a threat? Thus protection justifies punishment in a limited number of cases. It cannot provide a complete theory of punishment since if protection is the only justification of punishment then it is wrong to punish those criminals who are not an immediate threat, for example if they are too elderly/infirm to reoffend.
Successful rehabilitation satisfies the second and third requirements: if punishment did help to change the character of criminals so that their propensity to commit crime was reduced, and there was no other way of accomplishing this (perhaps the criminals would not attend “re-education” programmes if not under compulsion), then it is justified if rehabilitation breaches no moral side-constraints. However, there is little evidence that prison is a justified punishment because of its rehabilitative effects: 73% of young male offenders released in 2001 were reconvicted within 2 years. As previously mentioned, community sentences appear to be better at rehabilitating criminals. (However, this is extremely difficult to measure because those given community sentences may be less likely to reoffend anyway, being less hardened criminals.) Moreover, even setting the success of rehabilitation aside, some of the attempts at rehabilitation in contemporary UK prison practice do appear to violate prisoners’ rights. “Prisoner Ben” reports that prison governors routinely sell the labour of prisoners to outside companies, such as Bulk Hardware. Prisoners are then forced to work for as little as 75p an hour; if they refuse, they are subject to a range of penalties including solitary confinement for 23 hours a day. Is this not forced labour, defined in the 1930 ILO Convention as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”?

The SEP notes that “The retributive justification of punishment is founded on two a priori norms (the guilty deserve to be punished, and no moral consideration relevant to punishment outweighs the offender’s criminal desert) and an epistemological claim (we know with reasonable certainty what punishment the guilty deserve)”. The epistemological claim seems dubious. How it is possible to decide what punishments are deserved? The famous maxim “an eye for an eye, a tooth for a tooth” does seem to generate unjust recommendations: for example that a rapist be raped himself. (Incidentally, who would do the raping?) A “proportionality principle” – that each criminal be punished in proportion to the severity of the crime – is an alternative, but this has a serious flaw: there is no non-arbitrary way to convert severity of crime into severity of punishment. (In the words of the SEP, “ There is no nonarbitrary way to locate either the end points of maximum and minimum severity defining the penalty schedule or the intervals between adjacent punishments”.) A more serious problem for retribution seems to be found in the claim that “the guilty deserve to be punished”. The moral intuitions of the vast majority of people would agree with this: we continually make moral judgements condemning people for their actions. However, many people would also assent to the Control Principle: that “we are morally assessable only to the extent that what we are assessed for depends on factors under our control” , and its corollary, “Two people ought not to be morally assessed differently if the only other differences between them are due to factors beyond their control” (SEP). There appears to be a clash of intuitions. On the one hand, we do think moral judgements of criminals are possible; however there is a sense in which some criminals become criminals because of factors outside their control. The connection between poverty and criminal behaviour is well-documented: 53% of those in prison in America earned less than $10,000 per year before incarceration. Even more troublingly, a third of teenage girls sentenced to imprisonment in a Young Offenders’ Institution report having been sexually abused. The morally arbitrary determinants of crime were suggested in a report by the Social Justice Commission: Ian Duncan Smith uses evidence from developmental psychology, which shows how significantly the formation of children’s brains is affected by their environment, to argue that “life outcomes” for children born into poverty and disadvantage is “virtually set in stone by the time they are three”. Without taking into account factors beyond people’s control, such as their parenting, how can higher crime rates among the children of the poor be explained? The Control Principle casts doubt upon the extent to which we can make moral judgements about criminals, and thus whether retribution is justified. However, attempts have been made (most notably by Bernard Williams and Thomas Nagel) to argue that the Control Principle can be discarded, and that a notion of “moral luck” (which “occurs when an agent can be correctly treated as an object of moral judgment despite the fact that a significant aspect of what she is assessed for depends on factors beyond her control”) can be incorporated in our moral framework. This essay cannot discuss these issues in great detail, though it will be assumed that a way can be found of rescuing our ability to make moral judgements about criminals.

Thus punishment’s main justification is to be found in retributive arguments; deterrence, protection and rehabilitation do not justify the UK prison system to any significant extent. A few concluding thoughts: what is punishment actually achieving in our society today? Reoffending rates indicate that it is not successfully rehabilitating criminals, nor acting as a deterrent, nor protecting the public except for the short time prisoners are behind bars. What it does seem to do is provide a way of providing the beneficiaries of the injustice in our society a way of ignoring the problems of poverty, inequality, literacy, and opportunities. The characterisation of Baby P’s mother as an “evil monster” took the spotlight away from uncomfortable questions about the likelihood of abusers having been abused themselves; Carol Midgley puts it well when she says “Imagine if Baby P had not died. Imagine if he had suffered less abuse and survived into teenagehood. How would he have turned out? A knife-wielding delinquent, an ASBO boy, an abuser? How much sympathy would society have had for him then? Thousands of problem teenagers were once defenceless, neglected babies like Peter. If only society remembered this when it is demanding that they be locked up and the key thrown away. Had he lived, poor battered Peter might have become tomorrow’s hoody.” Imprisoning record numbers of under-18s (twice as many are locked up now compared with a decade ago, despite no significant rise in youth crime) is a natural progression from demonising “hoodies” – both ways of conveying the message that “these people are not part of our society”. This has to be unjustified.

(1) If the poor suffer the injustice of the great inequalities in wealth and income in the UK, then the rich are the beneficiaries of this injustice.  This is also the case as regards opportunities – “A boy from social class one has a more than 30 times better chance of himself getting a class one job – as a banker or barrister, say – than a boy from the unskilled working class”.

Blog posts I’ve enjoyed reading on the subject of punishment:

http://badconscience.com/2008/12/31/stevie-g/

http://badconscience.com/2009/08/25/why-tories-should-bother-to-watch-the-wire/

Constitutional Spotlight:

In Constitutional Spotlight, Judicial Spotlight, Parliamentary Spotlight on September 23, 2009 at 12:20 am

To what extent will the creation of a new British Supreme Court cause problems in the relationship between Parliament and the judiciary?

This essay will argue that it impossible to make a firm judgement over to what extent the creation of the new British Supreme Court will cause “problems” in the relationship between Parliament and the judiciary. Whether the judiciary will become more activist (causing tensions with Parliament) depends on a host of other factors, including the kind of legislation enacted by future Parliaments and the composition of the Court. It is important to note that the Supreme Court has no new powers, suggesting that the judges may not have the ability to become more activist; however this essay’s conclusion will be that a much more important factor in increasing tension between Parliament and the judiciary is the Human Rights Act, since judges can reinterpret legislation to ensure consistency. The introduction of the Supreme Court may hasten this process, since there is some evidence that the Law Lords have been more conservative than lower courts in their challenging of the executive and legislature, perhaps due to their involvement in the legislative branch of government. Finally this essay will question whether it is appropriate to regard tension between the judiciary and Parliament as problematic, arguing that robust judicial review is profoundly democratic (on the right, “partnership” conception of democracy) and so most welcome.

To start, what “problems” could conceivably be caused by the creation of a new British Supreme Court? It seems that the fear is the erosion of Parliamentary sovereignty, which Parliament’s website calls “the most important part of the UK constitution”. Parliamentary sovereignty means that Parliament is “the supreme legal authority in the UK, which can create or end any law”. “The courts cannot overrule its legislation.” The functions of Parliament and the judiciary are strictly separated; Francis Bacon in one of his essays likened judges who drew authority from outside the text of the law as being like the “Church of Rome”, who illegitimately did not draw authority from the Bible alone. “”Judges ought to remember that their office is jus dicere, and not jus dare: to interpret law, and not to make law or give law.” (This narrow view of the proper role of the judiciary in a democracy will be challenged later on in this essay.) Thus Lord Neuberger fears that the new Supreme Court “may start to assert itself” – start making law, not just interpreting it. The justices may “arrogate to themselves greater power”, as the American Supreme Court did in the 1803 case “Marbury vs Madison” when they for the first time declared a part of a statute (the Judiciary Act of 1798) unconstitutional. That the Supreme Court can in effect make law was demonstrated in the 1973 ruling Roe v Wade, which established the right to have an abortion up to the point of viability. Though this judgment was not technically a new law, but rather an interpretation of the Fourteenth Amendment, it is in some ways more binding than a law, since it can only be struck down by another Supreme Court ruling, and the composition of the Supreme Court (since justices are appointed for life) is much slower to change than that of Congress.

Why does Neuberger think the Supreme Court would threaten the traditional territory of Parliament? He mentions the “law of unintended consequences”: the judges’ new titles, statuses and building may inflate their sense of importance and cause them to overstep their authority, creating “a real risk of confrontation between the judiciary and the executive”. Lord Turnball and Lord Falconer agree, saying that the creation of the Supreme Court will “enhance the confidence of the judiciary”. However, perhaps they are overstating their case. Their argument seems to be based on little more than speculation about the psychological effects of a new setting and title. Much depends on the composition of the Supreme Court, which will ultimately determine its propensity to cause tension in its relationship with Parliament. Lord Phillips, the Supreme Court’s first president, seems to take a relatively conservative view of the role of the judiciary, saying of the prospect of judicial activism: “I don’t think it’s likely”. Moreover, there will be little or no scope for judicial activism in the sphere of criminal law, since it is envisaged that the Supreme Court will hear criminal appeals very rarely, if at all, due to the justices’ lack of criminal expertise. The British Supreme Court has also been given no new powers; like the Law Lords, and unlike the American Supreme Court, they cannot invalidate statutes created by Parliament.

However, just because the new British Supreme Court has no additional powers does not mean that it does not have the capacity to become increasingly activist; such powers were given to the judiciary by the 1998 Human Rights Act, which is a much more significant reason why there may be future problems in the relationship between Parliament and the judiciary. The Human Rights Act gives the judiciary the power to issue a “declaration of incompatibility” between the Act and statute passed by Parliament; however this does not invalidate the statute. Parliamentary sovereignty is upheld because it then is up to Parliament to amend the legislation; the declaration has no legal force. For example, on 14 Oct 2005 in R (on the application of Sylviane Pierrette Morris) v Westminster City Council & First Secretary of State, the Court of Appeal ruled that section 185(4) of the Housing Act was incompatible with Article 18 of the Human Rights Act. In August of the following year, nothing had been done to remedy the incompatibility. Thus, the opportunities for judicial activism afforded by declarations of incompatibility are minimal. However, their power to reinterpret legislation so that it is compatible with the HRA is extremely significant. In 2004 the Law Lords ruled that the phrase “surviving spouse” in the Rent Act had to be interpreted as including the survivor of a gay couple, giving a same-sex partner “the same rights to take over a protected tenancy as the survivor of a married or cohabiting couple”: Tom Zwart says that this ruling was “an amendment [to the law] in anything but name”. The tension in the relationship between Parliament and the judiciary due to the HRA was also evident in 2001 when the courts interpreted the Youth Justice and Criminal Evidence Act 1999 as allowing rape victims to be cross-examined over their sexual history where this was necessary for a fair trial, despite Parliament having included a “rape shield” provision to prevent such lines of questioning. In Daly, 2001, before plans for the new British Supreme Court had even been announced, the Law Lords established the principle that it was for the courts to determine whether “relevant weight” had been accorded to “interests and considerations”: a principle of proportionality, giving future courts much greater scope for review. “Judicial review had therefore moved on. At least where rights are affected, it is now concerned with substance [traditionally the domain of Parliament] as well as legality and procedure” (Diana Woodhouse in “Law and Politics”). Thus there is no need for or likelihood of the Supreme Court Justices “arrogating to themselves greater powers”, as Neuberger fears: they have, post-HRA, what is in effect significant law-creating powers at their disposal.

Still, there may be some substance behind Neuberger’s fears. The Law Lords, to date, have not been as bold as they could have been in challenging the executive and legislature. When the case of Shafiq ur Rehman came before the Law Lords in 2001, the Special Immigration Appeals Commission had ruled that the Home Office was not justified in deporting him. (His alleged involvement in a Kashmari terrorist organisation was thought to be a threat to national security.) However, the Law Lords overturned this judgement, saying that “the judicial arm of government [needs] to respect the decisions of ministers of the Crown on the question of whether terrorist activities in a foreign country constitutes a threat to national security”. The Law Lords, in what was described by many commentators as a disappointingly conservative ruling, also overturned the declaration of incompatibility made by the High Court in Alconbury. This case was brought by a number of developers who alleged that, since the Secretary of State for the Environment, Transport and the Regions has responsibility for both planning policy and individual planning decisions, they were denied the right to a fair and impartial hearing provided for them by Article 6 of the HRA. Cases such as these lead Diana Woodhouse to conclude that “the High Court is more liberal in its protection of rights than appeal courts”, because of the Law Lords’ “concern not to disrupt government policy”. If this is correct, and Rehman and Alconbury certainly indicate that it is, the creation of the new British Supreme Court could result to a significant extent in more judicial challenging of the legislature and executive – because it is now a separate body, like the High Court – and therefore more tension in the relationship between Parliament and judiciary.

However, this essay’s topic is whether the creation of the British Supreme court will cause problems in the relationship between Parliament and judiciary. Thus the question is raised: are tensions in this relationship problematic? It seems that increased judicial review concerns people for two main reasons: firstly, that it represents a break with tradition, and secondly, that it is undemocratic. The first kind of fear is evident in Neuberger’s assertation that “you muck around with the British constitution at your peril”. Any possibility of the judiciary being more assertive in challenging Parliament should be regarded with caution and suspicion, because robust judicial review is “foreign to the British system”. However, this argument fails to persuade on two counts. Firstly, judicial involvement in what is effectively law- and policy-making has been a feature of the British political system since the passing of the Human Rights Act in 1998, as has already been demonstrated. A further example of the transfer of power from the government to the judiciary is that, following a ruling from the Strasbourg Court in 2000, the responsibility for setting the minimum tariff for murder committed by juveniles passed from the Home Secretary to the Lord Chief Justice. Secondly, even if judicial review were “foreign”, that does not constitute a decisive objection against it. Unfortunately, a thorough examination of (so called small-c) conservatism is beyond the scope of this essay, though a few doubts will be expressed. Could it not be a form of the well-documented phenomenon of “status quo bias”, where people (irrationally?) are disproportionately in favour of structures and practices that actually exist? Does this bias towards the already existing not warp our politics by ensuring that new, so-called “radical” ideas are not given proper consideration? Take drug prohibition. Many commentators have argued that the best way of dealing with drug use and addiction is not to impose criminal sanctions on users, but rather to decriminalise or even legalise drugs. A 2002 comment piece in the Guardian claimed that the war on drugs could never be won, and it was “time for a new approach”. The same author wrote a year later that ““Hounding hundreds of thousands – indeed millions – of young people with harsh criminal penalties is no longer practicable or desirable.” This view is supported by the experience of Portugal; since decriminalisation, illegal teenage drug use has fallen, the number of deaths from heroin has been cut by more than half, and the number of addicts registering for treatment programmes has more than doubled. Yet the alternatives to prohibition are barely even mentioned by Labour or Conservative politicians, who seem to repeat the same message over and over again, like a broken record: “we remain determined to crack down on drug-related crime and the harm it causes to communities….robust action is ensuring drugs are being taken off the streets” (Home Office Minister Alan Campbell). The author of the aforementioned articles was none other than David Cameron. His rhetoric seems to have been toned down greatly since he became Tory leader; does this reflect an awareness of the “status quo bias” of the electorate? This essay is not necessarily arguing that drugs should be legalised, but just that the merits of different policy choices should be fairly considered, free from “status quo bias”. What is true for drug legislation is no less true for the role of the judiciary; assertations like “you muck around with the British constitution at your peril” do not substitute for proper argument about the judiciary’s role.

The second ground for opposing an increase in the scope of judicial review is that it is (allegedly) undemocratic. Dworkin says that “almost everyone assumes that democracy means equal voting power among competent adults, that majority rule is therefore the nerve of democracy, and that any failure in majority rule is undemocratic”. If this equation of democracy and majority-rule is correct, then it is certainly undemocratic for the unelected, unrepresentative judiciary to have any policy and law- making role, the responsibility of our elected representatives in Parliament. Moreover, the new head of the Supreme Court, Lord Phillips, professes to be unmoved by public opinion. However, Dworkin seems to be correct in rejecting this “majoritarian” conception of democracy: that “a state is democratic…to the degree to which government…pursues the policy that is actually favoured by the largest number of citizens at the time”. This view does not allow that there is anything undemocratic about 51% of citizens ruling as a permanent majority, ignoring the wishes of the other 49% – the “tyranny of the majority”. Instead, he adopts a “partnership” conception of democracy: that “institutions are democratic to the degree that they allow fellow citizens to govern themselves collectively through a partnership in which each is an active and equal partner”. Since ordinary citizens have no say in judicial decisions, it may seem far-fetched to suggest that a strengthened judiciary facilitates self-rule. However, the judiciary may be essential to check the tendency of Parliament to restrict the liberties necessary for citizens to be “active and equal partner[s]” in governance. Diana Woodhouse explains why: “The courts are concerned with the protection of individuals and their rights. Governments are mainly concerned with broader issues of national interest, economics, politics and , of course, their popularity at the ballot box.” An instance of the judiciary’s protection of human rights against the wishes of an overbearing government is the Law Lords’ June 2009 decision that those foreign and British terror suspects subject to control orders must be allowed to know the evidence against them. Therefore robust judicial review, if it ensures (through its protection of basic rights) that citizens can participate in governance as free and equal citizens, is profoundly democratic.

Thus it is an error to construe tensions between the judiciary and Parliament as “problems”, as this essay’s title seems to do. Their different priorities mean, as Diana Woodhouse argues, that “the concerns of ministers and judges will, at times, collide… there is no harm in this. Indeed, there should be a tension between these two arms of government.” It remains to be seen whether the creation of the new British Supreme Court will increase such tension; for who knows how authoritarian the next Parliament will be, filled as it is likely to be with Tories. The Tories have also indicated that they will attempt to limit the scope of judicial review by abolishing the Human Rights Act and replacing it with a British Bill of Rights, which will come with “guidance notes” to tell judges how it should be interpreted. Therefore the extent to which the creation of the new Supreme Court will cause tension cannot be accurately ascertained, dependent as it is on so many other factors.