It’s time for a fightback
England’s rights-respecting Common Law
is being shunted aside by new forms of arbitrary, inquisitorial power
by 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.
