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Living on a Prayer

In Events, Home Affairs, Judicial Spotlight on February 10, 2012 at 4:29 pm

By polarii for The Daily Soapbox –@polar_ii

So today, we learn that it’s not legal for district and town councils to say prayers before their sessions. In fact, it’s illegal, apparently, for them to do anything which isn’t “calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.” (Section 111, Local Government Act).  As far as I can see, it’s also now illegal for the council to begin their session with a rendition of the national anthem, or with a reading of a post-colonial poem.

But I want to argue that prayers are conducive to the discharge of a council’s functions. By ‘prayers’, I mean some sort of time for reflection, without an overtly Christian flavour (although for ease, some words from the Book of Common Prayer, I suppose, could be used). The explicit Christianity of Bideford Town Council’s prayers were what initially led to the objection. And I can see why some people might find explicitly Christian observances off-putting in their place of work. But the ruling on the question has thrown the baby out with the bathwater.

The ability of town councils to ascribe a period of reflection is important for two reasons. Firstly, if a council wants such a time, it should be able to have it. A council having the ability to set its own agenda, as far as I can see, is certainly incidental to its statutory functions (it needs this freedom in order to determine, at minimum, what services to debate), and probably conducive too: the more control the council has over the terms of its debate, the more it can have more constructive debates and make better decisions. The more it functions as a body that is certain that it can debate matters without being over-ruled, the better the deliberations will be.

Secondly, I would argue that a period of reflection is also conducive to constructive debate and better decisions. An opportunity to pause and reflect takes any heat out of the situation, and gives people space to focus on why they are in a council chamber. For religious people, that may well have something to do with their god. For non-religious people, it might be an opportunity to reflect on the interests of the people they represent, and this is equally true of religious people. Everyone can reflect on the manner in which they will approach the upcoming debate and decisions; hopefully leading to something less confrontational and more constructive.

And just to show that it’s not just me who thinks this, in the House of Commons there are prayers (not always led by the CoE chaplain) and in the Scottish Parliament there is a time of silence. Yes, these are throwbacks to a previous time, but they are throwbacks that are appreciated by the people who use the space to reflect. No less a figure than Gladstone said that prayers were the most important business the House of Commons undertook.

As the hymnwriter says:

“Drop the still dews of quietness
Til all our striving cease:
Take from our souls the strain and stress
And let our ordered lives confess
The beauty of thy peace.”

Take the ‘thy peace’ out of the hymn and replace it with ‘true peace’ or ‘a peace’, and you have a poetic stanza that most people would agree with. You don’t have to believe in god to believe that quiet moments of reflection are beneficial to people. In the heated, intense, ordered council chambers up and down this country, there is a strong case to be made that a quiet moment of reflection will actually benefit (albeit in an unquantifiable way) the council’s deliberations and decisions.

For those reasons then, I think that there’s plenty of room for times of reflection (whether or not they are called prayers) to be included on council agendas. While having times specifically focussed on one religious tradition risks alienating people, the space for rest and reflection can only help councils in discharging their functions.

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.

Thinking Outside the Jury Box

In Home Affairs, Judicial Spotlight, Law And Order on September 16, 2010 at 11:52 pm

By polarii for The Daily Soapbox

Part of September’s Law and Order Series

Jury trial is an old idea. Not as old as trial by judge, but still old. Its origins rest in Early Greek customs for complex cases; sometimes, both defendant and prosecutor would have grievance with each other, and would take the matter to the elders of the town for resolution. Each of the elders would give an opinion concerning the case, and that opinion which found favour with the people – and so by public pressure would find favour with both parties – was adopted. The elder who had given the most popular judgement was rewarded an often substantial fee for his mediating. But in short, here the origins of jury trial exist; the weight of the opinion of the people could force a judgement in legal cases.

A few hundred years later, in democratic Athens, the aristocratic or monarchic elders were removed, and the people spoke directly on verdicts. This was the beginning of jury trial proper. The Athenians grew democracy pretty much by accident, and its court system was no exception. Juries ranged in sizes from modern sizes to up to 500. Women, foreigners and slaves could not serve, and the jury’s opinion was easily swayed (and prosecutors exploited this) by things such as plays and the ‘general opinion.’ As jury trial has evolved in the West, we have ironed out some of the weaknesses of this system.

But that’s not to say that the Athenian system was not without strengths. It is often not noted that many of the Athenian jurors were old men. This served a dual purpose to Athens; older people were genuinely received in ancient Greece (and I don’t think this is unreasonable) to be wiser and more experienced in arriving at right judgements. However, since jurors were paid, it also served as a pension system for the elderly who were prepared to commit to sustaining their state. This is something that we might adapt in the UK. Perhaps there is room to prefer mentally competent OAPs on juries. We might extend this to mentally competent disabled people, who are otherwise unable to find work. This would have the additional advantage of producing a pool of experienced jurors, who would be able to give straighter judgements than a random selection of individuals. It does do away, to some extent, to trial with a jury of peers – but I would actually prefer the jury that tried me to be more experienced in adjudicating the law, rather than my peers, who are not always the most level-headed.

Another thing the Athenian courts allowed was the defence and prosecution to propose a sentence once convicted. This led to some very interesting situations, as the jury had to choose between the two. In the trial of Socrates, he suggested that his punishment should be to be fed by the city for the rest of his life. The prosecution suggested death. The jury voted for death; in fact, more jurors voted for his execution than his conviction. We could adapt this for the UK system, as, unlike the Athenians, we have professional judges. We could have the protagonists propose punishment, and then the judge moderate the two. This will allow the judge to consider the impact of the crime on the family – often do we decry the leniency of a murder sentence when the bereaved wife has three children and no job – and also the intentions of the defendant – the case of Paul Clarke, who was given a suspended sentence for handing in a gun that he found in the park. This presupposes the abolition of minimum sentences, and also that judges will be confident in their independence to move beyond the brackets of the punishments of the prosecution and defence. Otherwise, we essentially arrive at plea bargaining; the prosecution may ask for a guilty plea in return for suggesting a lenient punishment, thus lowering the upper bound of severity.

Very, very occasionally, the jury would ensure that a member with certain understanding or expertise served. This was because the jury acknowledged that they did not understand some elements of the case. This is something modern juries, and indeed judges, should also be able to do. In complex medical trials, expert witnesses can bandy about statistics furiously, with the average juryman becoming increasingly confused, leaving room for a less certain confusion. If however, the judge provided an independent statistician or clinician for the jury, the understanding of medical cases, and other technical cases, would be greatly enhanced.

All these changes have some sort of precedent in ancient Athens, cradle of jury trial and democracy. They are all a bit ‘outside the box’, hence the title. But they’re all quite easy to implement – particularly the inclusion of statisticians – and not difficult to fund, particularly if we are cutting a load of data-generating quangos from which we can salvage the intelligent statisticians. Athenian jury trial wasn’t perfect, for sure, but that doesn’t mean that there is nothing useful left to retrieve from the founders of the institution, albeit the founders who didn’t expect it to last or work.

So No-one Got A Maximum Sentence. Get Over It.

In Constitutional Spotlight, Home Affairs, Judicial Spotlight, Law And Order on September 15, 2010 at 11:20 pm

By Stephen Wan

Part of September’s Law And Order Series

Every now and then, I read an article in a newspaper that really riles me up. What I particularly hate is when they use statistics in some really quite awful ways to draw certain conclusions which, quite frankly, I don’t share, but which they seem to presume everyone should. Usually its something from the Sun, or the Mirror, or some other tabloid with certain political prejudices that pamper to their readers. Unfortunately, this “statistic bashing” also seems to occasionally affect the ‘quality’ press, something that deeply worries me.

There are two articles in question, both of which are from The Daily Telegraph. The first is entitled “Revealed: Not A Single Burglar Gets Maximum Jail Sentence”. The second is called “Only Criminals Have Respect For Lenient Judges”. Guess what slant the Telegraph was going for.

For those of you who can’t guess from the titles, Ministry of Justice statistics have revealed that pretty much no-one has received any of the maximum jail sentences available for certain crimes. Whilst I have no idea where the idea of maximum jail sentences came from (perhaps someone can enlighten me, I know the Labour government introduced a lot of minimum sentences for certain crimes), it is apparently shocking, wrong, and shows how we’re weak on crime – and in particular, how bad our judicial system is for having such liberal and lenient judges on the bench.

I want to tackle these articles in several ways.

Firstly, I would like all to be reminded of the value of judicial independence. Believe it or not, we actually quite want an independent judiciary. That means we have judges that are not influenced or controlled by the government, or the media for that matter. Both Dixon and Davies in the first article imply heavily (without saying it), that the government should pretty much force the judges to give out harsher sentences; I would say that giving the government any sort of power over the judges is another step into the creation of an authoritarian government, which would be bad for all sorts of reasons (lack of proper governmental scrutiny, loss of checks and balances, positive virtues of the separation of powers). But worse of all is the Telegraph View, that “…ultimately, it is the people, not the judges, who are sovereign”. Ok, so I guess that means if the “people” wanted to go lynch a man who they thought might have committed a crime, but had no evidence for it, they can go do so because they’re “sovereign” and all that? Thankfully, there are judicial processes that prevent that, and sovereignty rests not in the people, but in the rights of the individual which the judiciary is sworn to protect against the over-mighty power of the majority.

Secondly, I would like to remind all that it is all very well looking at statistics, but that is not what judges do; instead, they look at things through a case by case basis in order to take in particular circumstances. Sometimes, this might mean the judges hand out excessive amounts of punishment, sometimes it might mean they hand out nothing more than a slap of the wrist. What is guaranteed (mostly) is that the judge will base you on your circumstances, not some quota put into law forcing you to serve a disproportionate amount of time. The alternative that the Telegraph et al seem to suggest is having some sort of quota ensuring a certain number of people receive the far end of the scale; maybe the worst 10% of criminals get the worst punishment possible every year? A very fine idea, unless you’re unlucky enough to be caught doing a minor theft towards the end of the year, whose punishment should be community service, but end up doing the 10 years reserved for drug dealers and repeat offending robbers. Besides, quotas for the number of people being caught and sentenced for certain crimes? As much as I hate to make the Association Fallacy, the parallels with Stalin in the 1930s are almost too good not to mention.

Thirdly, there is a horrible assumption here that prison works, which I thought in this day and age was gone alongside the belief that the Sun goes around the Earth. For some reason, the quote that “Prison is an expensive way of making bad people worse” comes to mind. There aren’t many Conservative politicians I like, but I respect Douglas Hurd for saying that, because he was so very right. Whilst prison serves a primary purpose of quarantine, that is, keeping people away from society so as not to commit more crimes i.e. for the general safety of the public, and this certainly works, the other aim of preventing re-offending by deterrence or rehabilitation clearly does not. And then we can ask the question, “Would society be safer by locking all the bad people up, or by getting the bad people to stop being bad before they get worse?”. If the former, feel free to build about a million more prison places (I hear Australia still has a few places). If the latter, maybe its time for newspapers like the Telegraph to stop making the simplistic assumption that prison is the best solution, and start thinking about giving a properly thought-out article that looks at several interpretations of the same data. Leave the shamelessly opinionated pieces to bloggers like us.

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

Scottish National (Partly) Justice

In America, Events, Foreign Affairs, Home Affairs, Judicial Spotlight, Law And Order, Party politics on September 12, 2010 at 11:24 pm

By polarii for The Daily Soapbox

Part of September’s Law and Order Series

Kenny MacAskill may not be an instantly recognisable name. Indeed, it may have continued forever in glorious obscurity had it not been attached to the Scottish Justice Secretary who released the equally splendidly named Abdel Basset al-Megrahi (whom some of my friends have mistaken for an Arabic liquorice allsort). Given that the SNP are unlikely to be returned at the next election, it seems reasonable to ask what this man’s significant contribution to law and order in Scotland has been.

For the benefit of those not familiar with Scotland, it does, in fact, have its own legal system. It is not dissimilar to other European systems, being most similar to the Irish, with Roman, Norse and Saxon influences. It runs alongside the English system, deferring to a UK system on only a few topics, such as extradition, while also accepting the European system, and ultimately, the ICJ. It is an historical oddity that Scotland preserves a distinct legal tradition; the Act of Union in 1701, and subsequently the Treaty of Union in 1707 was controversial enough then, and no-one has thought to go back and put the two now united kingdoms on the same legal footing. While this raises an interesting question about whether legal systems should run in parallel, and to what extent, we shall leave this to one side. Instead, we shall try to divine (since we Englanders never hear it explained) the judicial philosophy of the SNP.

The first act of Kenny MacAskill was to lift a ban on alcohol sales at rugby union games at Scotland’s main stadium, Murrayfield. This was a popular move, but ultimately had little effect on ‘Justice’ and its implementation in Scotland. After the abortive terror attacks on Glasgow airport, he made some remarks that the terrorists did not come from Scotland, as indeed they didn’t. He was progressing towards an inoffensive period in office.

However, he must have got somewhat bored. In this upcoming parliament, his department proposes two significant pieces of legislation. The first is to set a minimum price per unit of alcohol, due to an alarming amount of drunkenness in Scotland. The second is to allow those acquitted of serious crimes such as murder to be tried again should more evidence come to light. He also made the controversial decision over the Lockerbie bomber, for which he takes full responsibility.

The minimum price on alcohol could be seen as something of a reverse from his previous libertarianism at Murrayfield. The argument is that young people are drinking copious quantities of cheap beer and cider, purchased from supermarkets, then becoming drunk and disorderly. The counter-argument is that this measure – essentially a poll tax on alcohol – affects the poor much more greatly, and punishes the responsible drinker. It is interesting that MacAskill, who so vehemently opposed Thatcher’s poll tax, should introduce this. It takes the view that the state should actively remove those items that cause crime, even when the vast majority of people use it responsibly for the vast majority of the time. We might initially react that this is quite a pleasing move. After all, we all want to see less crime, and if the government can rake in some money to boot, what is wrong? Yet, how far should we extend this? Do we suggest a levy on kitchen knives, so often the weapon of choice in domestic assault, for instance? Do we add an additional tax on violent computer games, which some studies suggest lead to crime?

We can take this the other way – if alcohol is not restricted, and people use it irresponsibly, why do we restrict guns? I would say that alcohol and guns are essentially different; a gun is designed to cause harm, whereas alcohol is not. It may be a pragmatic measure to reduce drunken behaviour, but it lumps the innocent in with the guilty for no readily apparent reason. With guns, it is easy to see how an accidental discharge or opportunistic villain could cause great harm, and so there is a case for restricting them. But with alcohol, the SNP seem to be tarring all people with the same brush.

The second piece of interesting legislation introduces double jeopardy for serious crimes. This currently occurs in England, but not in Scotland, which does not admit any form of double jeopardy at present. With the application of new techniques, such as forensic science, police are discovering more data in ‘cold cases’, which lead them to the conclusions they had already drawn, but a jury did not uphold. It seems reasonable that the accused should be confronted with this new and additional evidence, and brought back to court. Yet there is the age-old principle that you can’t keep dragging a certain person before a court for the same reason again and again until the judge or jury, now thoroughly bored, hands down the desired verdict. However, this assumes malice on the part of the state and idiocy on the part of the jury. By and large, the state does not have it in for certain individuals, and juries are perfectly capable of understanding that if a person was found innocent before, a great deal more evidence needs to be presented for them to return a guilty verdict. If it were up to me, I would allow double jeopardy on all criminal trials for exactly this reason, allowing the transcripts (and a summary) of any relevant previous trials to be provided. I don’t think there would be that many takers without a significant new wad of evidence.

There is an oddity in the Scottish system that invites this. Scottish juries may return one of three verdicts: guilty, not guilty, and ‘no evidence’ – this latter being a way of a jury saying: ‘we think he did it, but the burden of proof has not been met by the prosecution.’ It seems incredible to me that there should be no double jeopardy with the return of such a verdict. The reform that is coming now is coming late, and is not coming in as full a form as the Scottish system needs. Incidentally, civil trials are more difficult, as a lot can be put down to interpretations of individual clauses or words. Civil law makes me very glad I’m not a lawyer; with cases such as libel, it can be terribly difficult to judge one way or another, and judges hand down different interpretations of the same law. Because it is not so clear-cut, I would not be so eager to have double jeopardy on civil cases.

Now, for Abdel Basset. MacAskill’s decision could have been motivated by any or all of three factors: genuine compassion on grounds of ill-health; lobbying from UK and corporate interests to improve relations with Libya; a need to avoid an embarrassing appeal, in which it might become apparent that al-Megrahi’s conviction was not as watertight as might be desired. I don’t buy Salmond’s line that the Scottish people are exceptionally compassionate – they’re about as compassionate as the next people group – but the medical reports do seem to suggest that al-Megrahi was on the point of dying when he left, and it was the compassionate thing to let him go. To me, it seems unlikely that BP exerted too much influence either, though this is what many in America would like to believe, to enhance the somewhat insipid narrative of the essential evil of BP. Libya has for a long time been positioning itself towards the West, since it can no longer guarantee support from an increasingly unpredictable Russia, nor that Islamic extremists will be happy to ignore Gaddafi’s crushing of Islamic-minded opponents. If Private Eye and some relatives of Lockerbie survivors are to be believed, al-Megrahi’s appeal may have had some weight behind it. I shan’t go into details, nor express an opinion here, but it seems that MacAskill has avoided a sticky and complex appeal that would likely have frayed US-UK relations, as al-Megrahi would be able to give a public airing to suggestions of incompetence of investigators.

It seems to me that MacAskill made a pragmatic decision here; he decided that it would be better to risk the flak of America claiming compassion rather than defending allegations of incompetence on the part of the UK-US team. It would have been even more unfortunate for him if al-Megrahi had died during appeal; he had already served 8 years while authorities delayed the appeal. It seems that, in this instance, MacAskill shied away from having the truth, whatever it looked like, out. The question of whether absolute truth is required for justice is again a tricky one, but it seems that al-Megrahi has essentially been granted a pardon (he is in Libya where no-one believes he is guilty) without actually being excused of the crime. A rather pragmatic and unsatisfactory solution.

This is what encapsulates much of the SNP’s approach to Justice in its four-year term. We can undoubtedly see that much of it is pragmatic, but when we take a look closer, we find that the thoughts behind it don’t quite fit with what we thought we’d find – a coherent philosophy concerning the nature and role of justice. Perhaps this arises from the SNP being a minority government, or perhaps it’s that the SNP is still a single issue party, and that single issue is not Justice. We’ll see who holds Holyrood come May 2011. My guess is Kenny MacAskill won’t feature in the cabinet, one way or another.

Simple Shuffling Suggestions

In Constitutional Spotlight, Home Affairs, Judicial Spotlight on August 28, 2010 at 4:11 pm

By polarii for The Daily Soapbox

Frankly, Labour left many things in a mess. Some of these, like the country’s finances, are of the first importance. Some, like the regulations concerning listed buildings, are at worst a minor irritant. Others are of themselves unimportant, but may the fact that they are broken may lead to problems and waste down the line. Prominent among this last category, to my mind, is the organisation of some government departments. These administrative divisions can be quite technical, but if they are done well, they save a lot of effort and paperwork. Done poorly, they can lead to a perpetual increase in the amount of paperwork and confused policy, and ultimately, ineffective government.

As any reader of Private Eye will know, the most ridiculous of these administrative hiccups are the UK’s two audit agencies. The National Audit Office (NAO) reports to the Chancellor (at HMT), and audits national things, like defence. The Audit Commission (AC) reports to the Communities and Local Government Minister (at DeCLoG), and audits local things, like Primary Care Trusts (PCTs) and Local Education Authorities (LEAs). Both employ directors with high salaries and high expenses, and a significant number of auditors, who criss-cross the country auditing things to make sure our money isn’t wasted. A genuine waste-saving measure would be to merge all the auditing responsibilities together into one organisation (perhaps called the NAOC, to preserve all the initials), and have it report either to the Chancellor, or the Deputy Prime Minister (at a re-established ODPM). This would save several executive salaries, as well as much travelling on the part of auditors; if the new body wanted to audit the accounts of a Scottish LEA and a Scottish submarine base, they could send one auditor up for three days work (one for travel, one for each task) rather than two auditors up for two days work each. This may mean redundancies, especially at the executive level, but the purpose of auditing is to ensure that money is efficiently spent, and at the moment, UK auditing confutes itself.

On the off-chance someone unfamiliar with UK government wanders in on this article, yes, it really is the case that our beancounters exist in two separate organisations, and yes, we do use this many acronyms. This is why government could do with a bit of reform, in my opinion.

Another easy sliding could be to dismantle the Ministry of Justice (MoJ), which was essentially the bits of government Jack Straw liked, and give the constitutional bits to ODPM, the Prisons bit back to the Home Office, and the judicial functions to the Attorney General’s Office. This has the happy effect of lumping all constitutional reform responsibilities under ODPM, all the things to do with policing under the Home Office, and all the things to do with legal work – civil, criminal, jurisprudential – under the Attorney General. It also stops the unfortunate situation where the minister for ensuring justice is impartially served is responsible for ensuring the prisons don’t overflow; an obvious conflict of interest to my mind, as it may mean that the minister begins to oppose deserved prison sentences. This reform removes a whole ministry, and while it would not mean many cuts in the civil service, as much of what the MoJ does is important, it will at least save a cabinet minister, and a few buildings here and there.

Another cumbersome ministry is the Department for Women and Equality (DfWE). Most of the work it does is largely unimportant; it was created more to inflate Harriet Harman’s ego than sort out equality. As evidence for this assertion, the Minister for Disability – disabled people being one of the most disempowered and unequal groups in society – reports to the Department of Work and Pensions (DWP) as opposed to DfWE. There is no Minister with responsibility for racial equality, the nearest thing being the Minister for Immigration, who reports to the Home Office. DfWE does discharge some important legal functions as regards equal rights protection, but these can easily be assumed, again by the Attorney General’s Office. We can now abolish another ministry, another cabinet post – although we should now promote the Attorney General to a permanent cabinet post, something that should probably be done anyway – and smile blithely as we have not reduced the functionality of government in any way, but have saved a fair bit of money and paper, and (huzzah!) there are now fewer ministries to consult when someone has an idea, streamlining the decision-making process before putting a policy before the house. And the Deputy Prime Minister actually has something to do now other than look pretty, make foolish statements in the Commons, and agonise over his favourite type of biscuit.

As one can plainly see, these changes will be an administrative headache for only a short while. They do not destroy any function of government, making the process more logical and clear. It’s tidying up round the edges, it’s not urgent, but it’s comparatively easy to do; Labour had a fair number of shuffles of this nature. It gets rid of a couple of the ministries that were cherry-picked by certain members of the previous government. Undoubtedly, more interesting, drastic and more effective reform could be achieved. But this is actually an almost painless cut that actually improves the running of government. Perhaps simple housekeeping is not merely the preserve of simple housewives.

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/