An unspoken war on the Common Law

For centuries, jurists have argued that the English Common Law is the best for liberty. In the fifteenth century, the judge Sir John Fortescue wrote that English law is ‘not only good but the best’ (1), contrasting the public jury trial of the English court with the torture-ridden, summary and secret proceedings on the Continent. In the 1700s, jurist William Blackstone argued that while Continental law fomented ‘arbitrary and despotic power’, the Common Law preserved the liberty of ‘even the meanest subject’ (2).

This wasn’t just national vanity; the French agreed. Montesquieu held England up as the ‘one nation in the world which has political liberty as the supreme object for its constitution’ (3), while Voltaire wrote that ‘the English are the only people on earth who have been able to prescribe limits to the power of kings by resisting them’ (4).

How times have changed. The realm of the Common Law abounds with laments about the loss of ‘fundamental freedoms’ and ‘age-old liberties’. In The Assault on Liberty, barrister and MP Dominic Raab identified a ‘tectonic shift in the relationship between the state and the citizen’, which is ‘inflicting lasting damage on the very bedrock of what it means to be British’. Conservative MP David Davis resigned his Commons seat in protest against the ‘insidious, surreptitious and relentless erosion of fundamental British freedoms’.

Our Common Law cousins in America complain of the same problem. In The Tyranny of Good Intentions, Paul Craig Roberts and Lawrence M Stratton chart the steady ‘erosion of the rights of Englishmen’ on American soil (5). While law once provided protection for the individual against the arbitrary power of the state, they argue, law now furnishes a weapon for the powerful to use as they please. In The Collapse of American Criminal Justice, William J Stuntz says the rule of law has ‘collapsed’: ‘Official discretion rather than legal doctrine or juries’ judgements came to define criminal justice outcomes.’ (6)

Indeed, we have reached the situation where British citizens arguably now find themselves with fewer legal protections than their Continental peers against the arbitrary power of the state, which would have been unthinkable to the likes of Blackstone or Montesquieu. What befell the Common Law?

Bypassing the court

One major shift has been a bypassing of the court, in favour of various forms of summary or concessionary justice. This is an historic change: Blackstone described trial by jury as ‘the glory of English law’, and the public jury trial became the primary form of trial in the twelfth century, a time when Continental Europe was developing an inquisitional system based on the free use of torture. Medieval English courts enjoyed significant popular legitimacy, and people were accustomed to ‘go to the law’ to defend their rights (7).

Yet now, in both Britain and America, the justice system is increasingly geared towards avoiding the court at all costs. In America the impartial jury trial has become a rarity, with some 95 per cent of criminal cases decided in advance by plea bargaining (where the defence agrees to plead guilty, and avoid a trial, in exchange for concessions). As Roberts and Stratton outline, the legal process becomes a stitch-up between defence and prosecution, and the court appearance a mere formality. Innocent defendants may be pressured to settle, and indeed the innocent sometimes ‘roll a lot easier’ than the guilty. Meanwhile, guilty defendants may confess to a more minor offence to avoid more serious charges, which amounts to ‘having people admit to what did not happen in order to avoid charges for what did happen’.

In the UK, out-of-court penalties such as on-the-spot fines (Penalty Notices for Disorder, PNDs), cautions and cannabis warnings have risen to nearly half of all offences ‘brought to justice’. As Dominic Raab outlines, the official issuing the penalty becomes prosecutor, judge and jury: ‘The explicit aim is to short-circuit the entire court process by allowing the police or council officials to investigate, prosecute, try and punish criminal offences – without any judicial check or consideration.’

There is a clear inducement to accept the fine or caution rather than go to trial. The fine is offered as a simple, no-risk payment (‘you can pay in three easy steps’), while the court is used primarily as a threat: ‘If you fail to pay… your PND… the fine will increase by 50 per cent and you may be charged with the offence for which the notice had been issued. If you don’t pay the PND… you may have to pay additional bailiff’s fees or you may be arrested. If you are charged and convicted you will receive a criminal record and may have to pay court costs in addition to any fine imposed. You may also be given a custodial sentence.’

Again, it is possible that the innocent but thin-skinned will pay up or accept a caution. Raab says, ‘For an individual threatened with such a penalty, the incentive to avoid a criminal record and a heavier fine, or even prison, exerts heavy pressure to accept the fine – irrespective of guilt – rather than challenge it in court, which undermines the most basic principles of due process.’

The court is presented not as the site of justice, but as a place where the coercive powers of the state will be used against you. This presentation of the legal process is more familiar in developing countries, where officials threaten: ‘Just pay us and we will make this issue go away – it will be much harder on you if you don’t cooperate….’

Roberts and Stratton describe the plea-bargain system as ‘the return of torture’, in that its primary function is to persuade the defendant into a guilty plea. There may be no rack or thumb screws, but prosecutors exert very low forms of pressure, such as threatening to indict family members if the defendant fails to cooperate.

This is a novel turn for the Common Law. It was the Continental Inquisition which sought confessions above all else, with judges set against the defendant with the sole aim of breaking them; their confession was also a form of penitence. By contrast, Roberts and Stratton note that historically English justice was suspicious of guilty pleas, which were seen as a possible sign of undue pressure in custody, or somebody taking the fall for somebody else. English judges and juries preferred the proof of evidence in court to the defendant falling on the floor in confession. Now, the lands of Common Law prefer to get their confession in police cells or on the street, without the bother even of going to court.

The criminalisation of everything

The Common Law definition of crime required mens rea (the guilty mind) and actus reus (the guilty act). Where the consequences of somebody’s act were not intended, it could not be a crime (so accidents are not crimes, and one is not responsible for damage tangentially related to one’s own actions). Similarly, intent to commit a crime is not in itself a crime.

Mens rea and actus reus have been eclipsed from large sections of criminal law. William J Stuntzargues that mens rea ‘has gone by the boards’; he charts the diluting of intent across several branches of US criminal law. There is no need for the old ‘vicious will’ for the prosecution of many criminal offences: ‘The defendant is guilty if he intended his physical acts, and if these physical acts violate the conduct terms of a criminal statute.’ US drugs offences are drawn so widely that mere possession can be taken as evidence of intent to deal. Paul Craig Roberts and Lawrence M Stratton also note the growing tendency for an accident to be prosecuted as if it had been intended, which is a question not of prosecuting responsibility but of finding someone to blame something bad on.

In the UK, Section 5 of the 1986 Public Order Act (which criminalises the causing of ‘harassment, alarm or distress’) doesn’t require evidence of intent. Laws on anti-social behaviour considered only the ‘anti-social’ consequences of somebody’s conduct: a judge need only find ‘a causal link between the defendant’s behaviour and one of these consequences or an objective likelihood of such a consequence’ (8). The motivation of the person’s action is of no concern. This disinterest in the defendant’s motivations blurs one of the oldest distinctions in criminal law.

The watering down of liability means that people can be punished for the crimes of others. US police can confiscate an individual’s property if somebody else used it to commit a crime – so a landlord could lose his house if one of his tenants dealt drugs, or a woman could lose her car if her husband used it for kerb crawling. Stuntz cites the example of a drug dealer’s girlfriend convicted of ‘intent to distribute’ because of her ‘nexus’ with drug offenders, which is little more than guilt by association. In the UK, the old offence of incitement has been replaced with the much weaker offence of ‘assisting and encouraging’, which includes such defuse crimes as ‘encouraging’ the accessory to a crime (rather than the principal offender), encouraging a preparatory offence (rather than a criminal act), and encouraging an offence which is at the time impossible to commit (therefore a crime that could never have happened, with all the encouragement in the world).

Actus reus has gone similarly by the boards. Common Law was very clear on the point that intent to commit a crime was not in itself a crime. In his book on the Common Law in the late nineteenth century, the American judge Oliver Wendell Holmes illustrated this point with an example. If a man takes a train from Boston to Cambridge with the intention of committing murder, but is stopped en route and returns home, Holmes says this is not a crime: ‘He is no more punishable than if he had sat in his chair and resolved to shoot somebody, but on second thoughts had given up the notion.’ (9) An act is necessary for a crime to be prosecuted, and preparatory acts are only crimes when they are sufficiently close to an actual criminal act.

The Continental system was more comfortable with the idea of intervening to prevent crimes from happening. The French police traditionally had a division dealing specifically with crime prevention; one French law textbook said that for this police division ‘it is justified to prohibit anything that provokes disorder’ (10). The French ‘lois scélérates’ (villainous laws) of 1893 made it a crime to advocate a crime, ‘either by provocation or by apology’. ‘Propaganda of the deed’ was as much a crime as doing the deed.

Now England and America have expanded the boundaries of their criminal law beyond even Continental levels. UK terrorist offences criminalise the ‘direct or indirect encouragement’ of terrorism, disseminating terrorist publications, travelling to ‘terrorist training camps’ abroad or funding others to travel to these camps.

Prosecutions under UK terrorism laws in 2012 included a man who received 12 years for possessing terrorist publications and writing an article praising a young woman’s knife attack on her MP. Another man was given 18 months imprisonment for possessing copies of an extremist publication on a USB stick. Three young men received eight years each for being ‘involved in a plot to establish and raise funds for a terrorist training camp in Kashmir with a view to at least one of their group carrying out training there so as to be able to commit acts of terrorism in the future’. ‘A plot to raise funds to…’ – in Holmes’ metaphorical journey from Boston to Cambridge, these men hadn’t even got out of bed.

‘The terrorist offences would not be offences under Common Law’, says David Goldstone of the Society of Liberal Lawyers. ‘They make it a crime to possess a terrorist publication, or travel to a foreign country associated with terrorist networks. None of these would be Common Law offences.’

This means a new prosecution of pre-crime – mere expressions of intent, or actions that are a very long way from any criminal act. Andrew Ashworth, professor of English law at All Soul’s College, Oxford, is leading a research project into the growing body of ‘preventative justice’, where the state intervenes to prevent crimes happening. He cites grooming offences as similarly ‘pre-emptive’ – that is, ‘an offence several steps before there is any criminal act’. This is a novel departure for UK criminal law, he says, which substantially ‘alters the parameters of criminal liability’.

The return of arbitrary power

In the nineteenth century, the jurist AV Dicey argued that the defining feature of England for foreigners is the absence of arbitrary power. In England, he said, the power of the state was tightly limited, and the liberty of the subject large, in contrast to the ‘wide arbitrary, or discretionary powers of constraint’ found on the Continent (11). A French contemporary of Dicey’s likewise identified in England ‘extraordinary precautions to guard against the dangers which unavoidably attend the power of inflicting punishments’ (12).

Now, arbitrary power has returned as a modus operandi of the US and UK criminal justice systems, and punishment is increasingly driven by the discretion or whim of prosecuting officers.

Stuntz argues: ‘When legal doctrine makes everyone an offender, the relevant offences have no meaning independent of law enforcers’ will. The formal rule of law yields to the functional rule of official discretion.’ Officials and police officers now often talk about the law as a ‘tool’. In effect, they decide what they want to do, and look for the legal ‘tool’ which will allow them to do it. As Stuntz puts it, ‘The law defines a menu of options for police officers and prosecutors to use as they see fit’.

Indeed, there has been an explicit move to create laws that will give police and prosecutors more room for manoeuvre. There has been a tendency since the 1980s for crimes to be drawn more widely than the intended target, just in case. Prosecutors don’t like for there to be things they cannot prosecute, so UK sexual offences law is drawn so broadly that it is a crime for a 15-year-old boy to kiss his girlfriend of the same age. Of course, officials assure that they would never prosecute such a case, but the law permits it.

Now checks on power are supposed to lie in the discretion of officials rather than in the law itself. This, as Blackstone observed, is no check at all: the true liberty of the subject lies not in the ‘gracious behaviour’ of the sovereign but in their actually ‘limited power’.

Even greater latitude for arbitrary power is provided by new civil ‘orders’, which subject particular individuals to wide-ranging constraints, on very low standards of proof. In the UK, Anti-Social Behaviour Orders (ASBOs) can prohibit a particular individual from almost any form of conduct – including wearing particular clothes, associating with particular people, or walking down a particular street. While the order is civil, it is a criminal offence to break it. Other new legal forms include Parenting Orders, which can force parents of truants to go to counselling or comply with other conditions; Control Orders, which can restrict the employment, movement, associations or residence of individuals suspected of terrorism; and Serious Crime Prevention Orders, which can restrict businesses’ employment practises, access to premises, travel or financial transactions.

American city authorities have developed such coercive mechanisms in an even more thoroughgoing manner, as Katherine Beckett and Steve Herbert outline in Banished: The New Social Control in Urban America (13). A panoply of measures can be used to restrict individuals’ movements or activity in public spaces. Park Exclusion Orders ban entry to city parks; Stay out of Area Orders bar entry to specified areas of town, which could include the whole city centre; Trespass Ordinances prohibit entry to public housing, public buildings such as hospitals or libraries, or certain private businesses. In most cases these orders can be invoked for breaking minor park rules (for example, for lying down on a bench), or on the testimony of a single officer of somebody’s intent to commit an offence. Beckett and Herbert identify a ‘net widening effect’, which ‘creates crimes and criminal cases that would not otherwise exist’, and ‘makes it a crime for some people simply to be in certain places’.

Officials have unprecedented latitude to act on their hunches that somebody is ‘dodgy’ or ‘up to no good’. Rather than identify crimes, officers can identify those they believe to be suspicious and then fit a crime to the man. Beckett and Herbert quoted officials saying that civil orders are a ‘wonderful tool for the police. They do not have to have probable cause to approach someone.’ One police officer said, ‘You can still trespass anybody for anything. It’s easy, it’s like win-win… It’s up to you whether you actually book them or just identify and release them.’

The door is left wide open to corruption, since officers can use their discretion in pursuit of private goals such as targets or financial incentives. Roberts and Stratton describe US confiscation powers as ‘the return of plunder’ (under the Comprehensive Forfeiture Act agents can confiscate property on ‘probable cause’ of being involved in an offence, with the burden of proof on the owner). Some US police forces now rely on confiscation for a substantial part of their income; punishment becomes a business. Meanwhile, UK local authorities are increasingly seeking to make money from fines, or employ private security guards to issue fines on commission, which has meant people being fined for ‘offences’ as trivial as a thread of cotton falling from their glove.

At base, such arbitrary power changes the very role of the law. The primary role of law becomes not the protection of citizens against the power of the state, but a tool for the state to use against citizens. Law becomes, say Roberts and Stratton, a weapon for the police rather than a shield for the innocent.

Do the French have more protection against arbitrary power?

These changes are so fundamental that we have reached the point where citizens in Common Law countries are arguably left with fewer legal protections than countries such as France. How could this be?

The French state traditionally possessed a much greater degree of open-ended and summary power than the English. French municipal authorities, for example, can issue an order banning any local event, activity or even publication in the name of public order. Yet there are also checks on the use of this power. In French administrative courts, any citizen can appeal a summary act of state. There are a series of grounds of appeal: excess of power (unreasonable extension of state power); misuse of power (for example, the use of a power for a function other than that intended); violation of established rights (such as the right of free expression); or use of power for private ends (such as profit or personal animosities) (14). If the court finds in the plaintant’s favour, the act of state is annulled.

These courts are used by citizens as part of their ordinary rights of appeal. When one French municipal authority prohibited a satirical gathering, the organisers overturned the judgement by claiming an infringement to their freedom of expression. When a town mayor prohibited late-night alcohol sales, small shops appealed on the basis that this measure was an ‘excess of power’, expressing their confidence that ‘justice will be done in the interests of the citizen’.

Traditionally, the English and the French states worked in different ways: whereas the English state had tightly limited powers, and could only intervene in a series of specified circumstances, the French state could do anything so long as it didn’t transgress certain specified rights or liberties. Broadly speaking, in England the power of the state was specified and limited, and the liberty of the subject open-ended; in France, it was the reverse.

David Goldstone from the Society of Liberal Lawyers notes that ‘because the English state had limited powers, it did not need systems of appeal as did the French’. This is no longer the case; but now we arguably have the worst of both worlds. The British state has developed summary powers, but without the legal protections of Continental states on the use of those powers. Goldstone notes that, ‘to some extent judicial review is plugging the gap as an all-purpose appeal against state power. But this is costly and inadequate’.

Other forms of UK appeal invoke the Human Rights Act, and occasionally campaigners win a case on the basis that a law or measure ‘breaches the right to a private life’, or somesuch. But again, such court cases are costly, and judgements can vary wildly. ‘Human rights’ are abstract notions from an extraneous piece of law, supplanted on to our statute books, rather than an ordinary and predictable check upon state power existing within the logic of the legal system itself. In ‘human rights’ appeals, even such a concrete and longstanding crime as murder is transposed into the other-worldly terms of an ‘infringement on the right to life’.

Restoring the Common Law

While prosecutions for offences such as murder and manslaughter may continue in the old Common Law manner, large areas of criminal law have transformed beyond all recognition. In a short space of time, a new, post-Common Law legal system has developed, which works on a quite different basis.

There are three ways in which we might seek to restore legal checks in British law.

The first would be to codify a document of legal liberties, which could act as a check on state power. This is attractive to many civil libertarians, perhaps because it seems definitive, or perhaps because it appears to be something they can do themselves. Yet the failure of the American Constitution to prevent extensions of summary power should perhaps dissuade us from this road. It has always been the case that libertarian codes are cast aside when the winds change (the French Constitution codified rights to a free press, after which the press was heavily censored for many decades and remains under significant state control today).

The second option would be to introduce a series of checks on open-ended powers, rather like the French administrative law system, perhaps by way of an expansion of judicial review. Andrew Ashworth suggests that civil law and preventative powers should be properly systematised and controlled: ‘Adequate justification and principled limits to their deployment need to be constructed.’ There needs to be, he says, a ‘normative framework for all forms of coercive preventive measure’.

The third option would be to seek to abolish open-ended powers, and re-adopt the tight, limited powers traditional to Common Law. This would mean challenging the many laws or practices which give officials arbitrary or open-ended power, or which bypass the legal process.

Of these, I would favour the third. This perhaps appears to be the most idealist approach, given the volume of new law that has been made. But it would mean using the advantages of the Common Law system, rather than reinventing the wheel and introducing extraneous constitutions or new systems of administrative law, which would have questionable social authority.

For better or worse, the Common Law has tended to be more responsive to actual cultural and political conditions than other forms of law. Under the Common Law, rights are derived not from a constitution or code, but from the accumulated history of men and women claiming their rights in court. Rights are only those that have been defended over time.

If we were to try the third route, this could not be a ‘revolution from above’ negotiated by lawyers. The fate of the Common Law would depend – as it has depended for centuries – on the political subjectivity and actions of English men and women over the following decades, and our capacity to challenge arbitrary power in all its forms. This would be less certain, perhaps, but it would be better for liberty – not to mention more interesting.

Josie Appleton is convenor of the Manifesto Club.