Rt Hon Lord Lilley

     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

    liberties.

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

    prosecutors.

    … 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

    future?”

    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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