24.07.2002

Cheap justice

Blunkett's white paper

Back in 1997, the Labour Party's prospects in the general election were seen as contingent upon being able to remove a number of albatrosses from around its neck. One of these was the notion that Labour was incurably soft on crime and could not be trusted with law and order, supposedly the natural prerogative of the Conservative Party. 'Tough on crime and tough on the causes of crime' was the characteristically catchy, but vacuous third way slogan with which Blair successfully managed to change public opinion, helped in no small measure by the fact that the Tories were by that stage not only seen as incompetent, exhausted and rudderless, but also mired in sleaze. Since then, the government has introduced no fewer than an incredible 12 bills designed to reform the criminal justice system. As to the outcome of this frenzy of legislative activity - much of it intrinsically more 'radical' (ie, rightwing) than even the Tories privately could have hoped for - trustworthy statistics, as opposed to the ideologically manipulated figures employed by all sides, are hard to obtain and difficult to analyse. But as always in politics, what matters is perception and the current perception is that Britain is threatened with a tidal wave of crime, particularly burglary and violent street robbery, which makes it a dangerous country in which to live. Despite the fact that Labour has spent more than £500 million adding an extra 11,000 cells to Britain's prison estate, the gaols are once again full to overflowing. Already at an all-time record of 71,400, the prison population is projected to rise by another 10,000 within the next two years. Hence the obvious need for another initiative, in the form of last week's white paper, Justice for all. Do not be fooled by the cuddly liberal title. In many respects, this bill constitutes a vicious threat to some fundamental principles of justice and to the hard-won rights of those who find themselves before the courts. Ostensibly, the bill, described by home secretary David Blunkett as inaugurating a "far-reaching and radical culture change", is about "rebalancing the criminal justice system in favour of the victim and the community", in that way "delivering justice for all", not just for the criminal. In reality, however, it is about getting more convictions, irrespective of their safety, and saving money in the process. For all its manifold inadequacies and inequities, only an ultra-leftist would seriously claim that the court system in Britain does not have some important safeguards designed to ensure that, by and large, people have the chance of getting a fair trial. Among these are the principle that in all but the most trivial cases defendants have the right to elect to be tried by a jury composed of their fellow citizens; that accused persons are tried solely on the basis of facts relating to the charges with which they are indicted, not on the basis of their previous convictions or their character; that defendants are presumed to be innocent until proven guilty; that nobody can be tried twice for the same offence; and that, since the burden of proof of guilt rests with the prosecution, prosecution witnesses must appear personally in court and be available for cross-examination by the defence. All of these principles are undermined to a greater or lesser extent by the new bill. Take the question of jury trials. If the legislation is passed, as it will be, certain categories of case - not just fraud trials, which are notoriously long and therefore expensive - but other "complex and lengthy" cases will be heard by a judge alone, on the grounds that a jury of ordinary citizens simply cannot cope with the legal intricacies involved and would, therefore, be inclined to give the defendant the benefit of the doubt. At the discretion of the trial judge, juries can be dispensed with in any case where there is actual evidence, or even the mere risk, that jurors could be subject to intimidation or bribery. Laughably, this move is justified by the fact that police protection of jurors constitutes "an unreasonable intrusion into their private lives". The decision will be at the judge's discretion, based no doubt on information thoughtfully provided by the police - who else? Furthermore, defendants aged between 14 and 17, even if they are accused of serious offences, will no longer be tried in front of a jury (too much 'risk' of their being sympathetic?). The presumption of innocence, a cornerstone of criminal jurisprudence enshrined in the Human Rights Act, is also due to be thrown out of the window. Hitherto, a defendant's previous convictions have only been revealed after the jury had given its verdict. In future, again at the judge's discretion, not only prior convictions, but even acquittals can be disclosed by the prosecution, if such a move is deemed "appropriate". It will obviously be appropriate in all cases where the prosecution case is otherwise so feeble as to look unsustainable. Likewise, in order to improve their abysmal clear-up rate, the police will surely be tempted to 'round up the usual suspects' for a particular offence in the hope that they can sway the jury's mind in a way that is flagrantly prejudicial to a fair trial on the facts of the case in question. Put colloquially, what this amounts to is that the crown can say to the jury: 'You may think that this defendant is innocent, but there are a few things we think you ought to know about him.' Or, worse still, 'The defendant has no criminal record, but you might like to know that he has been in trouble before and managed to get off.' Appalling. And in a case where a prosecution witness has a criminal record, will the defence, on an equitable basis, be allowed to point out this salient fact about their client's accuser? Well, no. To give credit where it is due, not just Labour MPs with a conscience, like Chris Mullin, but Tories, such as Douglas Hogg and Peter Lilley, have expressed grave misgivings about this aspect of the bill, which could so blatantly lead to gross miscarriages of justice. Another provision that flies in the face of justice and rationality is that hearsay evidence, hitherto always excluded automatically, will now be admissible providing that a prosecution witness has "good reason" for not attending court and undergoing cross-examination. Presumably, it will once again be the all-powerful judges and their 'discretion' who excuse such witnesses from being present and allow their depositions to be used in evidence against the accused. It was the question of double jeopardy that caught the attention of the bourgeois press last week, as they bewailed the disappearance of a centuries-old provision whereby nobody can be tried a second time for an offence of which they have been acquitted. There was much fatuous talk in the broadsheets about Magna Carta and the inalienable rights of freeborn Englishmen - as if that historic feudal settlement between the crown and the barons, then or at any other time, had the remotest connection with the rights of ordinary people, rights that over the centuries have been wrested from the ruling class at the cost of much blood and suffering . Given recent advances in forensic science, particularly in connection with DNA, it is now possible to establish that, for example, an acquitted murderer or rapist, was in fact responsible for a crime that may have been committed years or even decades ago. As the law stands, such a person could not be brought to justice and that is plainly wrong. Likewise, most of us would think that, if substantial new evidence were to be forthcoming in relation to such cases as that of the murder of Stephen Lawrence, for example, then the previous acquittal of the perpetrators should not stand in the way of justice. But such considerations are fraught with dangers. DNA evidence, however "compelling" (to use Blunkett's formulation), is not entirely foolproof and, much worse, is susceptible to manipulation. Leaving every case open to retrospective retrial on the basis of any "compelling" fresh evidence, whether from scientific enquiry or human witness sources, simply puts far too much power into the hands of the state as against the individual. However painful it might be in particular cases, it is better for the guilty sometimes to go free than for the innocent to find themselves condemned and imprisoned for crimes they did not commit. So far as imprisonment is concerned, Blunkett's bill is top full with contradictions. Increasing the sentencing power of magistrates - another way of saving money on expensive crown court jury trials - is hardly calculated to alleviate the crisis in the prison system, where the overwhelming majority of inmates are non-violent petty offenders on short sentences, whose incarceration costs a fortune and achieves precisely nothing. Alternative options are canvassed in the bill, as they always are, but they lack both the political will and the vital financial backing from the treasury that could make them workable. When the penal policy of the Blair government is effectively dictated by the leader writers of The Daily Mail, what else could you expect? Justice for all is a grotesque misnomer. It is a bad white paper and will make vicious law when it is enacted. We must fight against it. Does that mean that we are under any illusions that the existing criminal justice system is 'fair' (to use the liberals' favourite epithet)? Not at all, but whatever safeguards it contains must be rigorously defended - just as we seek to secure and extend the gains made by the working class in all spheres of the existing capitalist system. As Marxists, we recognise that in the final analysis the law of the land, similarly, exists to secure and extend the power of capital, to preserve the exploitative relationships of property and power which are inextricable from the capitalist mode of production itself. 'Tough on the causes of crime'? Not really, Mr Blair. How could you be? Not when the fundamental causes of crime - poverty, chronic deprivation, social exclusion and atomisation, the wholesale destruction of human potential that result in hopelessness and despair - all the shit we call alienation - are inseparable from the class society over which you so proudly preside. Only when we get rid of that, when we get rid of you and your state, can we start to think in terms of "justice for all". Maurice Bernal