Asked by a judge whether his client was aware of some legal maxim with a Latin tag, the famously insolent barrister F E Smith replied “Your Honour: in the little village, from which my client comes, they speak of little else?.
The irony was well placed. Most people know little and care less about legal matters. But four legal principles are so fundamental to our liberty that they have impressed themselves on the public consciousness: that we have the right to trial by jury; we are innocent unless proven guilty; we cannot be imprisoned without charge (Habeas Corpus); and we cannot be tried twice for the same offence (the Double Jeopardy rule).
What is remarkable is that precisely those four pillars of our liberties are now under threat from this Labour government. Driven by a combination of saloon bar populism and zeal for modernisation David Blunkett will today further undermine their foundations
The government?s populism is designed to sound ?tough on crime? by deliberately blurring the distinction between those accused, and those guilty, of crime. He claims juries acquit more people than magistrates so he intends to reduce the number of jury trials.
In fact, as Jack Straw admitted, the conviction rate for similar offences is much the same whether trial is before a magistrate or a jury. He nonetheless brought in two Bills to abolish our right to choose trial by jury. The government argued this right to an expensive jury trial was exploited by hardened criminals to get a lesser sentence than if tried by a magistrate. So removing that right would ensure criminals got their just desserts and save money. This argument disintegrated when it emerged that the anticipated savings would be largely due to the shorter sentences magistrates can give.
Blunkett appears to have stepped back from a third attempt to abolish the right to jury trial ? though this remains a Labour manifesto commitment. Instead he plans a double squeeze on jury trial from both ends. At one end he will say that most offences carrying sentences of less than a year (eventually to be increased to two years) will be deemed too simple to merit jury trial. At the other end he will say that, beginning with fraud trials, cases which are complex should be taken away from juries. The government seems to have fallen for the myth, based on a handful of past cases, that juries are so bewildered by complex fraud cases that they let guilty fraudsters go free. In fact, the Serious Fraud Office has had a 92% conviction rate over the last four years. This is nearly double the rate for all other offences.
Despite its protestations of support for juries in principle ? it is pretty clear that a government which considers juries unsuitable for either simple or complex cases has little attachment to them at all.
Many in the judicial system share this dislike of juries ? what profession does not resent lay people trespassing on its preserve? Yet juries, precisely because they are ordinary people, are most trusted (not least by ethnic minorities), most independent of the state, fairest and the best safeguard against onerous laws which they may simply refuse to enforce. Above all, they are the only way, apart from voting, that citizens can participate in the process of government. A million people carry out jury service every five or six years ? diffusing power into the community. We ought to be widening participation not restricting the jury?s role. Anyone summoned for service should be required to nominate a period in the coming year when they can serve.
The government is also committed to abolishing Double Jeopardy ? at least for murder. This was triggered by the Lawrence case. His parents, frustrated by the failure to prosecute, took out a private prosecution which failed. Hard cases make bad law. Yet MacPherson proposed that the 800 year old rule should be set aside to allow retrial if the police found new evidence against the same suspects. The government decided to sound simultaneously tough and politically correct by arguing that if new evidence is found a new trial is called for.
The Double Jeopardy rule persisted for eight centuries for four very good reasons. It protects the individual from harassment by the state prosecutor; it forces the prosecution to get all its ducks in a row before taking a case to court; and it reassures all innocent people, once acquitted, that they will not face a second trial. All too often, policemen convinced that a suspect is guilty have manufactured evidence. If an initial prosecution failed, they could honestly redouble their efforts to find new evidence for a retrial. Finally, any second trial would inevitably be prejudiced if a judge first ruled that the new facts were “compelling evidence? of guilt.
We may hear rather less about the old Habeas Corpus rule ? which protects us from arbitrary imprisonment. Yet the new European Arrest Warrant to which the government has signed up (without Parliamentary consent) will enable continental governments to arrest and extradite UK citizens. They may then face indeterminate periods in prison before facing either charge or trial. It is extraordinary that we shall have less protection against arrest by a foreign government than we do against our own.
The most fundamental basis of all our freedoms is the presumption of innocence. As Lord Sankey wrote “throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner?s guilt?. But of course it is far more convenient for governments to require us to prove our innocence. So this golden thread has been set aside in the EU directives placing the burden of proof on the accused in sex and race discrimination cases.
Spielberg?s current blockbuster ?Minority Report? portrays the world in 2054 when everyone?s iris (as unique as their fingerprint) can be identified wherever they go and where police can try people for crimes they are predicted to commit. Now Blunkett wants to store images of our irises on the state?s computer. And the government has rammed through legislation empowering police to arrest people who have committed no offence and require them to prove they are not going to behave like hooligans at some future date.
Today he will bring us nearer to 2054.