Let’s make life harder for the state and easier for the individual
spiked’s 10-point plan for defending our legal rights in illiberal times.
Politicians, observers and experts all seem keen to ‘streamline’ the criminal-justice process, by which they mean lift some of the legal burdens currently placed on the state in order to make it easier for the state to convict and punish suspects. No way. These burdens, as the state views them, whether it’s the presumption of innocence, the right to silence, trial by jury or the double-jeopardy rule, exist for a very good reason: to protect the comparatively weak individual from the mighty and powerful state. Here is spiked’s 10-point action plan for rescuing our legal rights, and making life harder for the state and easier for the individual.
1. Slash 14 days to 24 hours
The state should not have the right to detain anybody unless it has sufficient suspicion to bring a charge against him. If the state has the right to imprison someone without charge for four weeks (or even six weeks, as proposed by New Labour) then the culture of freedom itself is undermined. We’re no longer free citizens, but objects of suspicion who live in a permanent state of extended parole with the threat of incarceration hanging over us. We should follow Canada’s example, where suspects can be detained for one day only before charge.
2. Reinstate the right to silence
The Conservative government’s 1994 Criminal Justice and Public Order Act empowered the state to make ‘adverse inferences’ if a defendant exercised his right to remain silent. In other words, if a suspect keeps schtum, he must have something to hide. This massively weakens the presumption that an individual is innocent until proven guilty. The burden of proof in criminal trials should lie fully with the prosecution. Defendants, lacking the resources or clout of the prosecution, should never have to prove their innocence, but only defend themselves against the state’s accusations if they so wish.
3. Bring back ‘double jeopardy’
Under the ‘double jeopardy’ rule, individuals could never be tried twice for the same crime. The doctrines of autrefois acquit (formerly acquitted) and autrefois convict (formerly convicted) were considered ‘essential elements for the protection of the liberty of the subject’. These historic protections have been smashed. New Labour’s Criminal Justice Act 2003 allows retrials for murder, manslaughter, kidnapping, rape and serious drug offences. This empowers the state obsessively and ruthlessly to pursue individuals who have been acquitted by juries, thus delivering a sucker-punch both to the rights of the individual and the finality of jury decisions. Rip up the Criminal Justice Act.
4. Respect the jury
The hard-won right to trial by jury for indictable offences was important in weakening the authority of a single judge, official or priest to pass judgement against the individual. Now jury trial for serious offences is under attack. In 2003, New Labour sought to limit trial by jury in certain lengthy, complicated cases; its proposals were defeated in the House of Lords. More recently officials have said there should be no-jury trials where the suspect might try to ‘nobble’ jurors. Only juries should pass judgement on us. Because they’re made up of everyday people rather than hardened judges, they tend not to have a jaundiced view of humanity; and because they are not employed by the state, jurors are properly independent.
5. Say no to post-charge questioning
As an ‘alternative’ to increasing the length of detention without charge, Liberty has proposed ‘post-charge questioning’ in terrorism cases – that is, allowing police to continue interrogating an individual after he has been charged but before he is tried. This would severely damage the presumption of innocence. The current restriction on post-charge questioning is designed to prevent oppressive questioning and ‘case-building’ by the cops, and to preserve the integrity of the trial procedure, where the defendant finally has a chance to put his case. Post-charge questioning would provide further ammo for the state while ripping away protections for the individual.
6. No trials for speech or thought ‘crimes’
The state must stop punishing individuals for what they say. The Racial and Religious Hatred Act 2006 criminalises hateful speech about minorities; the Terrorism Act 2006 outlaws the ‘glorification of terrorism’. There should be no ‘thought crimes’. Allowing the state to prosecute individuals for what is inside their heads represents an historic assault on individual moral autonomy, and our right and responsibility to choose and control what we think.
7. No use of anonymous or phone-tapped evidence
Some of the New Labour government’s critics called on it to forget extending detention without trial to 42 days and instead to look into using phone-recorded evidence in terror cases; others argue that the state should make more use of supergrasses, even anonymous ones. But generalised (rather than narrowly targeted) phone-tapping will further inflame today’s culture of spying. And the use of anonymous witnesses, which already occurs in some cases, is an affront to natural justice: it is imperative that the defendant knows who is accusing him. These proposals are hard evidence that the focus on making things easier for the prosecution can devastate legal rights.
8. Protect the ‘reasonable doubt’ rule
New Labour has seriously debated watering down the burden of proof in terror cases so that the prosecution would no longer need to prove guilt ‘beyond reasonable doubt’. Instead, guilt might be decided on a ‘balance of probabilities’, as it is in civil cases. No way. The clash in civil cases is between two nominally equal forces (normally two individuals who are at loggerheads). But in criminal cases it is between the powerful state and the comparatively vulnerable individual, and the consequences of a guilty verdict are ominous indeed for the defendant, which means the the balance must be weighted in favour of the individual. If the prosecution cannot make the jury sure that the defendant is guilty, then the defendant must be acquitted.
9. Challenge political exploitation of the law
More than any other government in history, New Labour has used the law to proactively shape people’s behaviour. Its feverish legalism – with the creation of 3,000 new crimes in its first 10 years in power – is frequently designed to ‘send a message’ to the public about our attitudes and how we think and speak. Like kings of old, the state is using the law as a personal stick with which to beat the errant public. Such politicisation of the law can only undermine objectivity and fairness in the courts.
10. Let’s go beyond the law
Today, too many people mount a narrowly legalistic opposition to the powers-that-be. They challenge the invasion of Iraq by calling for Bush and Blair to be put on trial, and try to win battles for equality in the European Court of Human Rights. Such legalistic radicalism speaks to the weakening of the political citizen in contemporary society. Yes, we should demand the reinstatement of our hard-won legal rights for when the state comes after us with a criminal charge – but we should go after the state in the court of public opinion rather than in the court of wig-wearing lords.
Brendan O’Neill is editor of spiked.
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