Not Saussure

November 16, 2006

The Queen’s Speech

Filed under: civil liberties, Politics, UK — notsaussure @ 12:36 am

St Tone seems to have gone out of his way to give old-fashioned civil-liberties bores like me, who just don’t get it (presumably because Oldthinkers unbellyfeel Ingsoc) and who refuse to see the merits of his

reasonable and rational response to a problem that is as much one of modernity as of liberty

plenty to blog about over the coming months, though I fear such blatant attempts to curry my favour will do him little good.

Lord Irvine of Lairg, back in 2001 while he was Lord Chancellor, told their lordships,

we have far too many Criminal Justice Acts, that they keep coming forward like confetti, and that it is time we just got the whole system right and give it a rest—a rest in theory that is—and let it get on with its job.

However the Dear Leader obviously doesn’t share this view; as he explained earlier this year,

There is a myth that we have legislated 50 times, the problem still exists, ergo we don’t need more laws. I disagree.

so let’s take an initial look at the (Yet Another) Criminal Justice Bill announced today.

The BBC tells us that

The bill is expected to boost police powers to close anti-social premises, such as noisy pubs and clubs, within 48 hours and force youths to move away from public spaces

though clearly the BBC don’t read either Home Office Press Releases or The Times. If they did, they’d know that John Reid intends to give himself

new powers […] to evict people from their properties within 48 hours for anti-social behaviour as part of the Government’s crackdown on loutish behaviour.

The Home Secretary said the “common sense” policies would aim to speed up the justice system, in some cases bypassing the need to go to court.

These new powers are described in the consultation document, Strengthening powers to tackle anti-social behaviour, pp 13 to 18, and essentially mean that an ‘experienced police officer, not below the rank of superintendent’ can certify that one of these is necessary.

Police officers would then apply to the court for a
closure order not later than 48 hours after issuing the

and the occupier would then have to leave, while the place was sealed up for up to 12 weeks. The consolation paper stresses that these things would be

tenure-neutral, applying equally to owner-occupiers and tenants.

Quite how anyone, within 48 hours, is expected not only to pack and arrange alternative accommodation but also — assuming he wants to contest the order — legal representation, and quite how his legal representatives are expected to study the police application, obtain discovery of the evidence the police propose to present and, when appropriate, gather their own evidence to challenge it, is a bit of a mystery.

The consultation document makes great play of how it can be used to stop crack houses, which I thought were illegal anyway; that generally enables you to deal with the people creating the nuisance by asking the courts to put them in prison for a bit. Dr Reid, speaking in Bristol yesterday, clearly seems them as going much further; the Times has him saying,

“I think it is fair that where there is persistently excessive noise and rowdy behaviour or where residents intimidate and threaten their neighbours around the clock, the consequences are clear and tough.”

Consequences that at the moment, of course, include taking out injunctions or ASBOs and then, if the occupier continues to cause problems, you produce your evidence to the courts and let them deal with it.

Frankly, I just can’t believe this one will run; the courts will take one look at it and point out it’s completely incomputable with our rights under the EHCR to things like fair trials, rights to family life and so forth.

Anyway, what else do we have?

There’s this oddity;

John Reid is planning legislation which would prevent the Court of Appeal quashing convictions on “technicalities” when the defendants were “plainly guilty”.

For example, if a judge fails to direct jurors on a point of law, a murder conviction can be thrown out even if the evidence is overwhelming.

Now, I hope this is just sloppy BBC reporting. A couple of months ago, the government produced a consultation document about this, Quashing Convictions. I blogged about it at the time, so I won’t rehearse it again just yet, but essentially they were talking about restricting the Court of Appeal’s powers to quash convictions not so much on a technicality as when something had gone so badly wrong with the trial process that the Court wanted to register its protest by throwing out the conviction (and, normally, ordering a re-trial). It rarely happens — only about 20 times a year — and only in very extreme circumstances. We certainly don’t have regime like that familiar from countless American cop shows where the criminal goes free because there was something wrong with the initial search warrant.

The point is, though, that nothing discussed in the consultation paper had anything to do with the judge failing properly to direct the jury. An appeal in those cases is, by definition, on the grounds that there’s another verdict the jury could — not should, nor even would likely, but could — have reached had they been properly directed.

One example of this would be those Afghan hijackers who’ve so annoyed successive Home Secretaries. Their conviction for hijacking was set aside by the Court of Appeal because the learned judge in the initial trial had misdirected himself, and thus the jury, as to the circumstances in which the defence of duress was available in English law. The Court of Appeal didn’t say that the jury would have found the men acted under duress, but they did say that the judge was wrong in law to tell the jury the men couldn’t — as they were trying to — claim duress as a defence under the circumstances.

The conviction was thus unsafe because the jury could — no one was arguing it would have, but certainly it could have — found the men acted lawfully if the jury believed parts of their evidence.

Similarly, to use the example given the BBC, the House of Lords has recently quashed a murder conviction, and ordered a retrial, precisely because the judge didn’t direct the jury — by agreement, it has to be said, with both the prosecution and the defence — that, on the facts, they certainly could bring in a verdict of manslaughter when considering the case of Graham Coutts.

Mr Coutts, it will be recalled, killed his best friend’s partner during what appears to have been a consensual act of erotic strangulation. The prosecution’s case was that he intended so to do, thus making it murder, of course, while the Lords thought that, properly directed, a jury might well have taken the view that it was, in fact, an accident and that he never intended to harm her but that, nevertheless, the sexual practice is so inherently dangerous that it constitutes an illegal assault anyway (thus making her death manslaughter).

The case of Mr Coutts leads us nicely into yet another goodie in the proposed Criminal Justice Bill; Mr Coutts, on the prosecution’s case, had formed his intent to kill Jane Longhurst (rather than partially strangle her for their mutual erotic satisfaction) by watching violent internet porn. This is yet another measure in Dr Reid’s sights; apparently

Among the other measures set for inclusion in the Bill will be:

Making it a criminal offence to view images of rape and sexual torture. Offenders would be liable to be jailed for up to three years, even if the images actually featured actors who had given their consent.

I’ve already said plenty about this proposal, and doubtless will again. Suffice it for the moment, though, to note that they seem to have drifted rather off the original impetus behind the measure — perhaps a smart move, given the Lords’ ruling — and are casting their net all over the place. Are they seriously planning to ban, for example, Irreversible, which must have one of the most disturbing rape scenes ever? Deliverance? If they do, presumably we’ll have to have a list of movies previously passed by the BBFC and which it’s now a criminal offence to watch (will we have a DVD amnesty, too, like the recent knives one?). If they don’t, what are the criteria for illegality to be?

Enough of this for one night. I’ll have a look later in the week at some more of the goodies Tony’s forced HM to promise us; the Border and Immigration Bill looks good for a laugh; it would be a start if the Immigration Service actually responded to requests to send people along to sentencing hearings where the judge wants to issue a recommendation for deportation, which they don’t in my part of the world, much to the courts’ irritation, and stopped trying to deport British citizens by mistake. But more of that later.

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