Madsen Pirie

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Case by case, the rights of Britons are being gutted by governments

What is wrong with this government, and with its predecessors, is that it operates on a case by case basis. It has no feeling for the principles of liberty and, clearly, it has no time for them.

For example, the Lords won us a temporary remission by defeating the attempt to restrict trial by jury, but no one should suppose this is more than a temporary respite. Jack Straw and his government will be back.

The principles which preserve between them the rule of law and the rights of individuals have been systematically subverted by recent governments. This government has been the most recent to attack them it has been the most determined. In every case it has cited what seem plausible, even worthwhile, reasons for its actions, but the cumulative effect has been to erode the rules which protect us. Indeed, it is almost as if the government has made out a checklist of those rules, determined to strike them down one by one.

Presumption of innocence was weakened to catch serious fraud cases. After all, we do not want crooked high flyers to get away with their clever and complicated schemes. The upshot is that they may now be required to show that they acted legitimately, rather than having the state prove that they broke the law.

Double jeopardy meant that you could not be put on trial again once you had been acquitted: not any more. It first went out when we allowed civil prosecutions after criminal ones had failed. We do not like to see people walk free when we disagree with the jury, so we allow a second shot. This is why O J Simpson was put on trial again on the same evidence which had seen him acquitted. In a civil trial it is easier, too, because a balance of evidence is sufficient, rather than “beyond any reasonable doubt”.

Now new criminal prosecutions are being considered when new evidence emerges. This is partly an aftermath of the Lawrence murder, and the laudable desire not to let racist thugs get away with it.

Limited jurisdiction meant that you had to do something which was a crime in the place which put you on trial. This one went when Lady Thatcher forced a war crimes bill through despite determined opposition in the Lords. It has since been further weakened. We can now try people for things they do abroad which would be offences in Britain, but which are perhaps less well enforced over there. We can even try them for things which were not offences at the time. As always, we are told that this is the only way to get at certain classes of criminals. After all, who cares what happens to suspected paedophiles and war criminals?

The right of silence allowed no presumption to be drawn from the refusal of an accused to say anything. No one could be forced to testify in their defence. It used to help prevent beatings or torture of suspects. If they need not say anything at all, there was less reason to force them to say suitably incriminating things. Now judges may tell juries to draw inferences when an accused exercises this right, and another right is diluted.

Habeas corpus prevented the state from holding people incommunicado while it dealt with them. It had to produce them in open court and charge them. This was all very well, but for suspected terrorists various extensions were allowed because the authorities needed more time. Imprisonment without trial in the form of internment was even permitted under the general heading of prevention of terrorism. Again the defence is that it only concerns terrorists.

Conviction before sentence was a corner-stone principle. You had to convict someone before you could punish them. This is no longer true in the case of suspected drug dealers. Their property can be confiscated if it is suspected to have derived from drug profits, even if this cannot be proved. The alternative would have been to let these sleazy merchants of death and misery laugh at justice and walk off with their gains.

Prior restraint was notoriously difficult to obtain in Britain. People broke the law, and they were caught, tried and punished. It was the way the law worked. Now the government is reported to be considering a scheme under which satellites control the speed of cars to prevent them from exceeding the speed limit by cutting their fuel supply. The imagination leaps to supply what similar things might be done once the principle is breached.

Trial by jury is threatened because crooks are thought more likely to hoodwink juries than magistrates. The notion of facing your peers in open court is all very well, but not if it allows you to get away with it. The Lords saved it once, but no one supposes that the threat will go away.

The pattern emerges quite clearly: government is making laws out of particular cases and eroding the general principles in order to secure a particular aim. It wants to bring to justice the people none of us have any time for: financial swindlers, racist thugs, paedophiles, war criminals, drug dealers and terrorists. Others might include rapists, petty professional criminals who are “obviously guilty”, and multiple offenders whose record will be known to magistrates, but not to juries.

In the interest of bringing these low lifes to justice, the principles which protect the liberties of all of us are swept away. The precepts which have guarded society are destroyed to target particular groups of offenders. After all, we do not want them getting off, do we? In some cases, though, we might accept that, preferring a few unsavoury individuals to walk free rather than compromise the foundations on which our liberties depend. We give the devil himself the benefit of our laws, for how could we otherwise claim it ourselves?