Hard Cases Make Bad Law

When New Labour is finally laid to rest – as it must be one day, because all things come to end – what, I wonder, will be its epitaph? What will… what should it say on the headstone?

Speaking for myself, I think that can be no more apt reflection on the last eleven years of New Labour than the simple observation that ‘hard cases make bad law’. Those five words alone neatly sum up the damage that New Labour has wrought on our civil liberties and on the British criminal justice system.

Where do we begin to catalogue the baleful influence of the New Labour project on British justice?

With their ongoing efforts to extend the maximum period for which an individual arrested under the UK’s anti-terrorism laws may be detained without charge to forty-two days? ‘Popular’ as that one is at the moment, I’m not sure that we should see it as anything more than a symptom of a much larger problem. After all, this is measure that government can pursue only because, relatively early on in New Labour’s tenure in government, we moved from a position in which anti-terrorism legislation existed as a temporary measure, one subject to annual renewal, to its becoming a permanent fixture on the statute books.

For sixty years, from 1939 onwards, successive British governments treated the threat of terrorism as a temporary aberration that required a temporary legislative solution, and for ten years of that sixty year period, from 1963 to 1973, we did without specific anti-terrorism legislation entirely. That period encompasses almost the entire period from the reinstatement of the Irish Republican Army and the S-Plan, in 1938, to the Good Friday Agreement of 1998. It is a somewhat odd thing to reflect on, but it was only during a period in recent British history in which a negotiated and peaceful end to the Irish ‘Troubles’ was in sight and which came before the new threat posed by Al Qaeda had been fully realised by the September 11th attacks on the World Trade Centre and the Pentagon that the UK arrived at a position in which it had more anti-terrorism legislation permanently on its statute books than almost any other developed nation, and this was only the start of New Labour love affair with placing ever more expansive and, in some cases ill-defined and nebulous anti-terrorism measures (think ‘glorification of terrorism’) permanently on the statute books.

If that doesn’t convince you of New Labour’s deleterious impact on British justice and civil liberties then maybe you’ll find the roll-your-own lawmaking provisions that are Anti-Social Behaviour Orders a more persuasive argument. Since their introduction in 1998, civil courts, acting on evidence which can include hearsay that would be inadmissible in criminal proceeding and working to a lower standard of proof that the criminal justice system (a balance of probabilities) can make ‘personal law’ on the fly. ASBOs permit citizens to be subjected to restrictions on their freedom of movement, freedom of association and on their capacity of engage in acts that would not otherwise constitute a criminal offence, restrictions that if breached can lead to a criminal penalty of up to five year imprisonment if ‘convicted’ of breaching an ASBO and, unsurprisingly, the new powers have thrown up more than their fair share of absurdities and abuses.

And if that’s still not enough, then what about the (maybe) soon to be repealed restrictions on peaceful protests in the vicinity of parliament? Or the recent criminalisation of so-called ‘violent pornography’ under a framework that seems certain to trap adults engaging in unorthodox but otherwise harmless sexual activities. Does it concern you that the UK has an Asylum and Immigration Tribunal System that operates under conditions of secrecy the like of which we’ve not seen in the UK since the repeal of the Star Chamber by the Long Parliament of 1641. Or that we have people living in the UK who are subject to curfews, house arrest and other severe restrictions on their basic personal liberties despite never having been convicted of an offence, which is what the government’s control orders amount to. Or maybe you find that most disturbing thing about control orders is not what they do but that they only exist because the courts ruled against the use of good old fashioned internment, which the government preferred to begin with.

Still not convinced? Not even by the unseemly haste with which all the main political parties colluded to wave through the new, ‘improved’ and still fundamentally prejudicial provisions for the use of anonymous witnesses in criminal trials after the previous, and no less prejudicial, provisions had been thrown out by the Law Lords? Did anyone even notice or were you too caught up at the time in the meaningless quasi-spectacle of the Haltemprice and Howden by-election?

New Labour’s attitude to the criminal justice system and to civil liberties has been marked by two distinctive ‘signatures’.

One is a willingness to treat the judiciary, and more recently even juries, as an inconvenience to be bypassed whereever this is possible and/or politically expedient. From this we have ‘gained’ a proliferation in the use of ‘summary justice’, the issuing of fixed penalty notices which treat citizens as having been proven guilty until they can establish their innocence on appeal and, in many respects more seriously, the massive expansion in the use of covert surveillence powers that was an inevitable consequence of permitting their use to be authorised by those charged with conducting investigations without their being subject to the safeguards afforded by judicial oversight. Remember, we’re not just talking about the police and security services here – local councils and all manner of other state functionaries were afforded the authority to use of a variety of forms of covert surveillence under the Regulation of Investigatory Powers Act without the requirement of demonstrating that they have good reason to use these powers to a judge, despite this being the basic and fundamental safeguard against the misuse of such powers possible in a liberal democracy. RIPA, perhaps more than any other Act of parliament passed in the last eleven years, neatly encapsulates New Labour’s attitude towards judical oversight when applied to the conduct of functionaries of the state, treating this not as a necessary set of checks and balances that operate to prevent the abuse of state power but as, at best, an afterthought and more often as a nuisance that it best avoided if at all possible.

The second ‘signature’ that has been characteristic throughout New Labour’s tenure in office has been its unmatched appetite for buying wholesale into the twin cults of victimhood and exceptionalism as espoused and extensively promoted by the tabloid press – this is where hard cases genuinely do make bad law.

The legal aphorism, itself, is thought to have be coined by John Campbell, the 2nd Duke of Argyll but was arguably most fully and succinctly expressed by the great American jurist Oliver Wendell Holmes Jr. who noted, in 1904, that:

“Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgement.”

It that not a perfect description of what the legislative process has become, in relation to the criminal law, over the last eleven years, not just in terms of the lead taken by New Labour in legislating for a stream pf ever more ill-thought out and knee jerk reactions to exceptional cases and situations but also, to a considerable extent, in the supine failure of the opposition parties to actually perform their most basic function, that of acting as the opposition when it seems politically expedient to do so. As exemplified by the passage of the recent Criminal Evidence (Witness Anonymity) Bill, the Conservative Party have established an interesting and all too apparent strategy (if you know what to look for) when faced with illiberal and authoritarian legislation that aims to respond to the kind of extensively publicised cases that most generate the immediate, overwhelming (and distorting) interest referred to by Wendell Holmes Jr; one in which a token vote against the timetabling motion for a bill is followed by an en bloc abstention when the substance of a bill is up for debate. In political circles this is often called ‘plausible deniability’ – if the legislation retains its ‘popularity’ in practice then their lack of opposition becomes a virtue but if it all goes pear-shaped and results in a serious miscarriage of justice then, of course, its not the Tories fault because they didn’t actually vote in favour of the legislation and even have a (meaningless) vote against to fall back on.

And so, having set the scene, we come to the government’s proposals for changes in the UK’s homicide laws, which exhibit what is by far the most frustrating consequence of its wholesale surrender to the cults of exceptionalism and victimhood – even when a modertate change in the law is necessary to address a manifest and persistent injustice, New Labour cannot resist the urge to unnecessarily tinker with the law in a manner that will serve only to replace one form of institutionalised injustice with another, and all, if Harriet Harman’s comments this morning are anything to go by, in the interests of sparing the feelings of the victim’s family.

The injustice that actually needs to be addressed is that of the current homicide law’s failure to adequately take into account the psychological impact of domestic violence in those rare cases in which a women actually kills a violent partner as a mean of escaping what they otherwise see as an impossible situation. For a women facing trial in such a case, the traditional dividing line between murder and manslaughter, premeditation, is too often a blunt legal instrument that takes no account of the exceptional circumstances leading up to the killing of their partner and one that they too readily find themselves on the wrong side of in court. What is needed, in the interests of justice, is a provision in law that permits women (and men, where they are the victim of domestic violence, of course) access to an ‘in extremis’ defence under which even the premeditated act of killing a violent partner can be mitigated, in law, where a defendent had good reason to fear that the violence to which they were subjected by their partner might, at some point, result in their own death or serious to life-threatening injury.

On the other side of the coin, the government is putting the hard sell on the suggestion that this new law will bring about the end of the defence of provocation on the back of a tendentious exercise in exceptionalism that highlights what are, again, relatively rare instances in which the provocation defence put forward by a male defendant has cited sexual infidelity or persistent ‘nagging’ as the basis of their defence, with the BBC even going as far as to suggest that the Law Commission’s 2006 report on Murder, Manslaughter and Infanticide specifically recommends that the provocation defence be removed from the statute books.

This, as you will discover if you read the actual report, is simply not true.

While the Law Commission does recommend, although this is not acknowledged in the press release issued by the Ministry of Justice which forms the basis of most, if not all, the media reporting of the government’s proposals, is a series of systematic and carefully balanced reforms to the UK’s homicide laws, reforms that include the introduction of an offence of second degree murder, similar to that which operates in the US, together with a revised form of provocation defence that is more narrowly constructed than in its existing, and inconsistently applied, form and which would be available only as a partial defence to a first degree murder charge and only then as grounds for a reduction in the severity of the offence on conviction to one of second degree murder. This framework does not explicitly rule out the possibility of mounting a provocation defence based on the claim that the defendant overreacted in the face of sexual infidelity or even persistent nagging, but it does make such a defence significantly more difficult to mount successfully by redefining it in terms of ‘gross provocation’ sufficient to give rise to a justifiable feeling of having been ‘seriously wronged’ and, crucially, reinstates a common law practice repealed by the current Homicide Act 1957 under which a trial judge is permitted to withdraw a claim of provocation if, in their opinion, it is one that no reasonable jury could entertain.

Similarly, the Law Commission did not recommend that the partial defence of diminished responsibility should be replaced with a new defence based on ‘recognised medical conditions’, merely that it should be updated in line with advances in expert diagnostic practice. The section of the report dealing with the defence of diminished responsibility makes for interesting reading when compared to the government’s actual proposals and accompanying rhetoric. Again, what the Law Commission recommended, after extensive consultation with the Royal College of Psychiatrists, is that diminished responsibility should be a factor in determining the verdict in a case only where this would be relevant to the question of whether to render a conviction of first or second degree murder, i.e. as with other the partial defences it would only be open to a defendant if the primary charge was first degree murder. Beyond that, evidence of diminished responsibility based on a psychiatric evaluation of the defendant would be relevant only a mitigating factor in sentencing. As with the provocation defence, what the Law Commission recommends is a reasonable, carefully balanced and proportionate approach to the defence of diminished responsibility, one that the government have disregarded in favour of an approach which, from today’s rhetoric, seems focussed much more on upping the number of murder convictions by making it difficult, if not impossible, for anyone without a prior history of mental health problems to rely on a plea of diminished responsibility regardless of the merits of their case.

Comparing the Law Commission’s carefully reasoned and proportionate recommendations with the government’s actual proposals one cannot help but be struck by the feeling that what began, in the hands of the Law Commission, as an attempt to address deficiencies in currently that operated against the principle of equal treatment before the law has become, when filtered through New Labour’s obsession with the cult of victimhood, an inequitable and prejudicial exercise in ‘evening the score’, an impression that is certainly not helped by the almost triumphalist rhetorical tone evident in the MoJ’s press release not to mention the overweening emphasis this gives to killings in domestic situations when this was/is but one component of the Law Commission’s wide ranging review of the UK’s homicide laws.

Presentational issues aside, what the government’s proposals will do, if passed without the introduction of the offence of second degree homicide that is/was central to the Law Commission’s proposals, is devalue the offence of murder by disabusing of its defining characteristic – premeditation.

Anger, so the MoJ’s press release opines, will ‘no longer [be] an excuse for murder’ – but it never has been an ‘excuse’ for murder, merely a mitigating factor, one that in certain circumstances supports the contention that a killing was carried out without premeditation, and an unpremeditated killing is not murder. In English law it is manslaughter, while in the US it may, depending on the precise circumstances in which death occurred, be treated as either second degree homicide or manslaughter.

What the Law Commission’s report suggests is that the absence of a offence of second degree homicide in English law has, due to the introduction of mandatory life sentences for murder and the diminuation of judicial discretion in sentencing, given the UK a system for dealing with this class of serious offences that is now lacking in both in nuance and equity to the extent that the interests of justice are no longer being adequately served. That we have arrived at this situation is, although ministers will deny to their last breath, the direct consequence of a decade and more of managerialist tinkering with the criminal justice system by politicians who have clearly forgotten that the purpose of the criminal justice system is simply to dispense justice and not to placate the seething classes and their tabloid standard bearers or mollify special interest groups or, and I should add especially, pander to the cult of victimhood and incessant demands for ‘closure’. This is, no more and no less, a consequence of the unnecessary, unhelpful and, to my mind, unwelcome politicisation of the criminal justice system.

As Head of Legal, quite rightly notes:

the convoluted need to design defences so as to allow the courts to be lenient with battered wives who kill their husbands and others is purely, solely and simply a perverse outcome of the wrong-headed mandatory life sentence for murder. The varieties of murder are endless; and murderers come in so many shapes that the courts need to be able to show extreme clemency with some, and extreme rigour with others.

The one thing that does not make sense is to have a mandatory sentence set by law in all cases; it’s a prime example of over-regulation in the criminal justice system.

It is also a prime example of how the raison d’etre of the criminal justice system is being systematically perverted to suit explicitly political ends, and nowhere more so than in the incorporation into the public narrative of the ill-defined concept of ‘victim’s rights’ which seems to amount to no more that the proposition that at least part of the purpose of the system is to somehow make victims and their families feel better and help them get over their experience of being a victim of crime. This is, not to put too fine a point on it, a load of bollocks and much the kind of the kind of obscurantist rubbish that Bentham might have been inclined to call ‘nonsense on stilts’. If a victim or their family is looking for ‘closure’, whatever that actually means, then let me suggest that they consult a psychiatrist or psychologist, whose job it is to address their state of mind and emotional well-being, rather than a judge whose role is to dispense justice as merited by the facts of the case before them. The very idea that victims somehow have rights over and above those seeing the state dispense justice on their behalf and that modicum of financial compensation that exists in English law as a legacy of the Anglo-Saxon system of weregild, is a nonsense and a pernicious, ill-conceived and unwarranted nonsense at that.

  • nibbs

    Nope, in my opinion it will be New Labour’s abject failure to tackle inequality and poverty that will stand out as its lasting epitaph

    “A new dawn has broken, has it not?”

    “Not,as it turned out”

    Never has so much hope and good will been so wilfully wasted.

    And I’m a party member.

  • Actually, although I agree with the general thrust of what you write here, I think nibbs above has correctly identified the bigger failure.

    Incidentally, the Irish ‘terrorist threat’ was largely confined to Ireland, where the government introduced far more draconian legislation than it did in the rest of the UK, and internment, torture, and shoot to kill, far outweigh legislation such as 42 day detention and RIPA. In fact the British Government response to bombings in the UK brought about the Prevention of Terrorism Act a month after the Guilford bombings, and rushed through in 7 days after the Birmingham bombs a month later.

  • Nibbs/Bob:

    As I see it, the assault on justice is a more or less specifically New Labour thing if only because the Tories were never in a position to pursue the route taken over the last 11 years due to public suspicion arising from their status as ‘the Nasty Party’.

    The failure to address poverty is a broader issue that runs across the whole of the political mainstream and which links into a wide range of issues from the political classes loss of moral authority to the systematic dismantling of the social contract put in place by the Attlee government – and the more I think about it, the more I’m coming round to the view that in that analysis lies the key to Orwell’s notion of an ‘English Socialism’ as distinct from Christian Socialism and Marxism and, I think, a way forward for the left that does represent a genuine change from what has gone before, particularly over the last 30 years.

    I will blog this at some point, but still need to do a bit more thinking before I do, especially as the argument incorporates elements of evolutionary psychology and Rawlsian notions of justice.

  • Guano

    What will be the epitaph of New Labour? Its epitaph will be that it devoted so much energy to actions and discourse which, it thought, would keep it in power that it forgot why it wanted to be in power.

  • Adrian Peirson

    You are Owned by the Global elite.
    http://planetquo.com/The-Law-Is-An-Ass-And-You-Are-Made-Of-Straw

    Not only have the Establishment Lib Lab Cons Sold out Our Sovereignty to the EUSSR but
    they have also sold us to the Global Elite, Everything about us, including our DNA.
    This explains why the NHS is now promoting Euthenasia, they will look after children as future taxable assets, but our elderly ! Force them to sell up, strip them of their assets then get rid of them, they are of no further use..

    One way to think of this is that with so many other Worker bees’ why should the Corporate Elite waste time and resources on someone who is seriously ill or elderly.

    Birth Certificates.
    http://uk.youtube.com/watch?v=h5cphXPv6yk
    http://youtube.com/watch?v=lOSgS9odK8s&feature=related

    Corporate Law

    http://youtube.com/watch?v=AjCsBPMZokU&feature=related
    Farming the Populace.
    http://www.theforbiddenknowledge.com/hardtruth/silentweaponsforquietwars.htm
    Legally, the Corporate elite, the Rothschilds and the Rockefellers Own us and our Children.