Lilley fires warning shot on Blunkett plans

- Monday, 15th July 2002


 That is the uncompromising message delivered today by the Rt Hon Peter Lilley MP, a member of the Thatcher and Major cabinets.

In a paper published today (Taking Liberties, published by the Adam Smith

Institute), Lilley argues that four fundamental pillars of freedom, jury

trial, Double Jeopardy, Presumption of Innocence, and Habeas Corpus are

threatened by an unprecedented alliance between populism (to sound tough on

crime) and modernizing zeal. The net result will be to make the British

people more vulnerable than ever to arbitrary action by the State.

Recognizing the importance of tackling rising crime, Lilley warns that

sacrificing the liberties which protect the innocent will not help bring the

guilty to justice: indeed every time an innocent person is committed the

real culprit is left free to commit more crimes.

He describes the new proposals as the first step in "the most comprehensive

assault on the jury system" ever proposed, and demolishes the arguments used

to justify it. He points out that the government?s two central arguments

actually contradict each other. One is the claim that juries hand down

shorter sentences and more acquittals, and the other is that money will be

saved if jury cases decline because of the smaller sentences expected from

magistrates? courts.

As for the claim that two-thirds of those choosing jury trial eventually

plead guilty, Lilley says yes, but to a lesser charge. And while two thirds

(not 90 percent as the government claim) of those opting for jury trial who

are convicted have previous convictions, this shows that those with previous

convictions expect a fairer trial from a jury. The higher acquittal rate

reflects the fact that those with the stronger cases prefer jury trials.

The jury system is under attack, says Lilley, because some lawyers basically

distrust ordinary citizens to get it right. They resent the role which

non-professionals play. they attack jury trial from both ends, with the

claim that some cases are too simple to require juries, while others are too

complex for juries to handle. Not true, says Lilley, pointing out that the

Serious Fraud Office has a 92% conviction rate in fraud cases.

He makes six powerful points in favour of juries:

... Juries are independent of the state and its judicial and police systems.

... Jury trial is the best protection for the innocent.

... Jury trial enjoys public confidence not least among ethnic minorities.

... Juries will not enforce laws that grossly offend their sense of justice.

... Juries involve ordinary people (nearly 200,000 every year) in the

judicial system.

... Jury trial commands respect even among the guilty.

"Trial by jury, and the right to choose it, remains the most effective

safeguard against the risk of arbitrary persecution of the individual by the

State," concludes Lilley. He puts forward proposals to strengthen jury trial

and widen participation in juries.

Double Jeopardy

Lilley is similarly alarmed by threats to the 800 year-old Double Jeopardy

rule which prevents a person, once acquitted, being tried again for the same

offence. The Law Commission, spurred on by the Macpherson report on the

Stephen Lawrence case, opted for weakening Double Jeopardy in three cases.

It must be limited to murder, the new evidence must be compelling, and must

not have been available at the first trial.

But, claims Lilley, "it will be hard to prevent the exception being

progressively widened to include serious crimes." He shows that no other

country which allows exceptions to the Double Jeopardy rule has limited them

to murder.

Furthermore, the jury will be influenced by knowing that appeal court judges

have found the new evidence to be compelling. We already stop trials when

jurors are influenced by newspaper reports; yet this will affect even more

their ability to be unbiased.

As for evidence which was not available at the first trial, Lilley explains

that cases might be much less rigorously prepared if prosecutors know they

can always come back for another go.

He lists four powerful reasons why the Double Jeopardy rule protects


... It protects the individual from harassment by the state or other


... It gives the police and the prosecution an incentive to prepare their

case thoroughly before it comes to court.

... It gives innocent people peace of mind, once acquitted.

... It prevents a second jury being prejudiced by knowing that a retrial

implies compelling new evidence of guilt.

"Is it worth undermining an 800 year-old principle," he asks, "to rectify a

few past cases even though this will have no deterrent effect on crime in


Presumption of Innocence & Habeas Corpus

As well as the threats to jury trials and Double Jeopardy, Lilley identifies

major erosion of the Presumption of Innocence rule. "Recent government

legislation shows a disturbing disregard for it," he says. He cites cases

involving truckers and asylum seekers, and football fans who can be

arrested, detained and prevented from travelling abroad unless they can

prove they are not potential hooligans.

He cites European Directives on sex and race discrimination, in which the

onus is on the employer to prove that "in all probability" they did not

discriminate directly or indirectly.

Even Habeas Corpus, that bedrock of English liberties deriving from Magna

Carta, is under threat. The Government?s Anti-Terrorism Act 2001 and, above

all, the proposed EU Arrest Warrant attack its very foundation. Lilley

indicates that "Belgium could issue an arrest warrant covering someone

living in Britain relating to an offence committed in Germany." And they

could be handed over to a foreign state without any of the protection which

Habeas Corpus gives them against potential abuse by our own system.

"This fourfold attack on our freedoms," concludes Lilley, "reflects a

political alliance of populism and modernizing zeal." "I believe," he tells

us, "that freedom, as we in these islands have come to understand and value

it, requires limits to be set on the role of the state."

It is because he believes that those limits have been and are being

transgressed that he issues today?s salvo.



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Lilley fires warning shot on Blunkett plans


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