15.07.1999

CPGB draft programme and criminal justice: Communist response

Tom Ball (Letters, June 24) corrects me on a mistake I made in the article, ‘Defend the jury’ (Weekly Worker May 27). He is right to point out that, contrary to my statement, the CPGB’s draft programme does not mention juries and therefore does not explicitly declare “in favour of the jury system”, as I wrote. Nevertheless, the continued existence of juries is implied.

The truth of the matter is that such mistakes do not detract from the main points of my argument. Again I repeat that in 40 years in the communist movement I have seen very little debate on criminal trial procedures, on what we felt the law should be on a number of issues or for that matter on the role of law in the socialist state.

Do we need law to run a socialist state (we certainly will have a state in the early stages of socialism)? Lenin made the point that workers require trade unions to protect them from their own state and we certainly need law to protect us from our own authorities. More importantly, as the bourgeoisie have learned, you cannot maintain order unless the rules and procedures of that order are fully understood by the population - and for the bourgeois state that requires their passive acceptance. For us it requires an active intervention of the working class in the administration of law and its development.

Yet in reality there has been no underlying debate about the functions of law or the philosophical foundation for any jurisprudence system. That is particularly unfortunate today, when there is increasing pressure in almost all common law countries to vary the standard of proof of guilt or to move the law in directions that infringe the rights of defendants.

Let me start on this question: over the last few weeks there have been moves to change the standard of proof in rape cases. The proposals essentially say that alleged rapists who plead consent must prove that this was the case. This is against the general tradition of common law that it is up to the prosecuting authorities to prove guilt beyond reasonable doubt.

In a recent Canadian case a Supreme Court judge ruled that it was not possible to give implied consent to sexual intercourse, and there have been similar cases in the USA, Australia and New Zealand. Now in all other spheres of activity it is assumed under bourgeois law that consent can be implied, be it on the question of buying or selling, or people passing over a landowner’s property. Yet in sexual matters, where often few words are exchanged - still less an agreement given in writing - it is proposed that consent must be explicit.

Clearly such propositions could lead to greater injustice than the situation that bourgeois liberals propose to eradicate - ie, the fact that a high proportion of rape cases lead to acquittals.

Increasingly there has been a tendency to introduce absolute offences not requiring either knowledge of what is going on or guilty intent. For example, the owner of premises where cannabis is found can be held liable even if they did not know how their property was being used. On a most trivial level local authorities are empowered to issue arbitrary parking fines or confiscate vehicles without due process.

There have also been changes to prosecution procedure, such as eroding the right to silence. Even more importantly changes to the legal system will virtually eliminate juries from any judgement in fraud and libel cases or the like.

Linked to these questions is the attempt on the part of government to develop a ‘cost-efficient’ justice system. In fact, our comrade Tom Ball suggests that it would be most inconvenient to try all criminal cases by jury, as 95% of them are dealt with by the magistrate’s court. What he is implying is that it is unnecessary to thoroughly investigate accusations or be certain of the alleged offender’s guilt. Such establishment concerns over expense lead to the iniquitous practice of plea-bargaining. It is less costly, it secures more convictions, it does not involve the populace and, above all, it does not require proof on the part of the state. Incidentally, in Scotland there must be a review of the evidence before a guilty plea can be accepted: that is, corroborated evidence is required.

Comrade Ball correctly points out that our draft programme calls for the election of judges. Now I am well aware of the US system of the election of judges and the reasons for its introduction. Nevertheless you only have to see some of the consequences that flow from it. If you have to have a criminal system, in my view you need experts in criminal law. Some of these experts serve in a position known as judge and, in order to contain these judges, we require juries.

This throws light on one of the problems of the draft programme. Although essentially correct in its propositions, some are defined too prescriptively, rather than laying down general principles. The application of such principles ought to be the subject of further thorough discussion.

Another example is the suggestion that fines should be proportionate to income. But one-40th of Bill Gates’ income per year has less effect on him that a fine of one-100th of the income of someone living on the breadline. In this case I would take the viewpoint that fines are an inappropriate method of punishing people.

It has to be accepted that we need more debate on this whole area.

John Walsh