The Criminal Justice Bill presumes defendants to be criminals.
Home secretary David Blunkett’s Criminal Justice Bill is now going through its final stages in the House of Commons. These reforms, which were floated in the July 2002 White Paper Justice for All, are billed as ‘rebalancing’ the system in favour of victims.
To this end, the Criminal Justice Bill proposes to extend the length of time for which somebody could be held without charge from 24 to 36 hours; restricts the right to jury trial if the trial is considered too complex or too long; allows the kind of evidence that previously excluded to be heard in court; removes the bar on somebody being tried twice for the same crime (double jeopardy); and allows past misconduct to be considered.
Blunkett discusses these reforms in a matter of fact way, as mere ‘common sense’ – surely people who commit crimes should be punished? He told an audience of police officers that ‘we are all on the same side, the side of the law-abiding citizen. You are on their side and I am on your side.’ (1) In ‘Justice for All’, the extra protection and safeguards accorded to the defence in a trial were viewed as an unfair obstruction to gaining justice (2).
The idea that we can all take the side of the victim against the criminal seems to forget the little matter that we don’t know if the defendant is guilty or not. This is, after all, why we bother having a trial, rather than deciding on the basis of those old methods like measuring the shape of the accused’s head or dunking them in the river to see if they sink or not. Their guilt must be proven beyond reasonable doubt – because the court must be convinced that somebody is guilty before they take away his liberty, and because the court can only become convinced by a strict and rational consideration of the evidence.
The government seems to treat these important principles and safeguards with contempt. Justice for All promised a ‘speedier, simpler and quality justice’. Discussing criminal justice as if it were a technical matter, something akin to organising the efficient delivery of consumer goods from factory to shop, is very dangerous indeed. Defendants are not consumer goods – they are individuals who value their liberty, and who stand to lose it if found guilty. The ‘innocent until proven guilty’ principle is based on a recognition of this fact. The erosion of this principle can only mean that more innocent men and women will go to jail.
New Labour’s approach to justice represents a major shift in the balance of power between the individual and the state. The political vacuum left by the collapse of traditional politics has given the state considerable freedom of action – and it has begun to interfere in almost every aspect of people’s lives.
It is this that explains the Criminal Justice Bill’s overhaul of the criminal justice system. All the distinctions at the foundation of criminal justice – between state and citizen, between prosecutor and defendant, between government and judiciary – are being called into question. Old procedures of evidence and argument are seen as a dusty formality that obstructs ‘justice’.
The distinction between prosecution and defence is being downplayed. The Criminal Justice Bill permits defence lawyers to be asked to disclose more aspects of their case before trial. In a joint statement, a group of legal and civil rights organisations expressed their alarm: ‘Talk of the prosecution needing to “check out” the defence case is wholly inappropriate. There appears to be an unsatisfactory blurring between the inquisitorial and adversarial systems of criminal justice, with the trend being to move us closer to the former.’ (3) In other words, the prosecution and defence are being thought of as investigating the crime together, rather than representing opposed aims and interests.
The distinction between the prosecution and the defence is fundamental. One side represents the interests of the state, and the other represents the interests of the accused individual. One side is aiming to get the accused locked up, the other is aiming to allow him go free. The case is weighted in favour of the defendant because he is the one who stands to lose his liberty – if the state wants to lock him up, it has to justify itself.
The government is treating the traditionally strict procedures of crime and punishment as a stuffy annoyance. Blunkett seems to consider crime, evidence, and conviction with an almost blasé informality – and feels free to improvise new solutions that he thinks will ‘work’.
For a start, it has become less clear what is and what is not a crime. Recent anti-social behaviour legislation means that everyday misdemeanours like riding bikes on the pavement, dropping litter, and fly-tipping are now punishable offences in some areas. The range of activities for which the state can call an individual to account has become impossibly broad.
The Criminal Justice Bill will allow vague and less reliable evidence to be considered in court. Witnesses could testify via a videolink, for example, rather than have to present themselves for interrogation in court. The Bill will also allow the inclusion of hearsay evidence – testimonies that are not given in person to the court. Both of these types of evidence will have been subjected to lesser degree of scrutiny, and so have to be accepted or rejected more at face value.
Conviction is also becoming a more relaxed affair. The government has already introduced on-the-spot fines for a new range of offences, including ‘behaving in a way that is likely to cause harassment, alarm or distress’ and wasting police time (4). These are the standards applied to smoking on public transport or getting caught without a ticket: when there is no dispute as to whether an individual has broken the rules, a ticket inspector can exact £10 and move on. Police officers are now being allowed to wander the streets slapping ‘tickets’ on people for much more contestable offences.
The Criminal Justice Bill also plans a new set of pick’n’mix sentences to punish those convicted of a crime. ‘Custody plus’ involves up to three months in prison and a minimum of six months under supervision in the community; ‘intermittent custody’ will allow weekend-only prison sentences; ‘custody minus’ is a suspended sentence on the condition that the offender does community service. And anybody who tests positive for class A drugs while in custody will be refused bail if they decline to undergo treatment – making drug treatment part of the punishment before they have even undergone trial. The boundary between inside and outside jail, between prison life and normal life, is becoming less clear.
The business of crime and punishment is being taken a lot less seriously by New Labour – important boundaries are being blurred and important standards compromised. Yet the consequence of criminal justice – depriving individuals of their liberty – is as serious as ever.
Defendants’ rights matter in a civilised society, which has a particular view of the individual and the state – because we don’t know if the defendant did it; because he values his liberty; and because any of us could end up on the wrong side of the dock one day. Blunkett seems to treat ‘defendant’ as synonymous with ‘criminal’, and ‘justice’ as synonymous with ‘conviction’. He needs to get his definitions straight.
Justice in jeopardy, by Josie Appleton
(1) On-the-spot fines to be extended, Guardian, 14 May 2003
(2) See the full version of Justice for All (.pdf)
(3) Balancing criminal justice?, 10 November 2002
(4) On-the-spot fines to be extended, Guardian, 14 May 2003
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