England’s rights-respecting Common Law is being shunted aside by new forms of arbitrary, inquisitorial powerby Josie Appleton
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 caseon 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.
(1) On the Laws and Governance of England,
by Sir John Fortescue, CUP, 1997, p27
(2) Commentaries on the Laws of England,
by William Blackstone, Routledge, 2001
(3) De L’Esprit Des Lois, Vol 1, by
Montesquieu, Flammarion, 1993, p294
(4) Lettres Philosophiques, by Voltaire,
Flammarion, 1976
(5) The Tyranny of Good Intentions, by
Paul Craig Roberts and Lawrence M Stratton, Broadway, 2008
(6) The Collapse of American criminal justice,
by William J Stuntz, HUP, 2011
(7) Law and government in England During the
Long Eighteenth Century, by David Lemmings, 2011, Palgrave.
(8) Public order law, by Richard Card,
Jordans, 2000, p69
(9) The Common Law, by OW Holmes, Little
Brown, 1881, p68
(10) Precis de Droit Administratif, by
Maurice Haurion, 6th ed, 1907, p501
(11) An Introduction to the Study of the Law
of the Constitution, by AV Dicey, Macmillan And Co, 1902
(12) The English Constitution, by Émile
Boutmy, Macmillan 1891
(13) Banished - the New Social Control in
Urban America, by Katherine Beckett and Steve Herbert, OUP 2009
(14) Precis de Droit Administratif, by
Maurice Haurion, 6th ed, 1907
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