Free Life Commentary,
an independent journal of comment published on the Internet

Issue Number 7
12th December 1997

Why Drinking and Driving
Should not be a Crime
by Sean Gabb

Free Life Commentary,
an independent journal of comment published on the Internet

Issue Number 10
10th February 1998

Next Week's British Encryption Ban
by Sean Gabb

Earlier this evening, I was given confidential information by someone close to a British Cabinet Minister. I am not in the habit of speaking to such people, let alone having them leak state secrets to me. But that is what happened. In publishing what I heard, I am now risking a prosecution under the Official Secrets Acts—or, more likely, being made to look ridiculous if what I predict does not happen. These risks being accepted, here is the leak.

Free Life Commentary,
an independent journal of comment published on the Internet

Issue Number 11
16th February 1998

More on the British Encryption Ban:
An Open Letter to Nigel Hickson
of the Department of Trade and Industry
in London
by Sean Gabb


The following Open Letter needs little explanation. It develops the themes stated in the previous issue of Free Life Commentary, though now written as a letter to the civil servant whose job it is to make the Government's wishes on encryption into a policy paper.

Free Life Commentary,
an independent journal of comment published on the Internet
Issue Number Fifteen
30th March 1998

Why Drinking and Driving Should not be a Crime:
Version 2
by Sean Gabb

IntroductionLast December, I devoted issue number seven of Free Life Commentary to explaining why drinking and driving should not be a crime. I am now returning to this theme.

Free Life Commentary,
an independent journal of comment published on the Internet
Issue Number 26
Thursday 31st December 1998

Hard Labour, Worthless Tories
by Sean Gabb

Free Life Commentary,
an independent journal of comment

published on the Internet
Issue Number 40
16th May 2000

Double Jeopardy
and the Conservative Party,

by Sean Gabb

This coming Thursday the 18th May, William Hague, Leader of the British Conservative Party, will give a lecture to the Police Foundation on his party's approach to law and order. In the course of this lecture, he will comment on the issue of double jeopardy, which has come recently under much discussion. If I were he, I would comment as follows:

"Double jeopardy is a rule of our Common Law which prevents a person from being tried more than once for the same or for a substantially similar offence. Undoubtedly, it sometimes allows a criminal to escape his just punishment. Either his lies are believed by a Jury, or the prosecution does not find compelling evidence of guilt until it is too late.

"However, the alternative to this rule, which is to give the prosecution the right of appeal against acquittal, is attended by far greater risks to the administration of justice. In any country, the prosecuting authorities have a vast and permanent advantage over every person accused of a crime. The authorities choose whether, what, when and how charges should be brought against an individual. They have unlimited money and access to the best lawyers. They are usually more intelligent, and always more experienced in the workings of the system, than a defendant. So far as the media and many judges and magistrates—and even many juries—are concerned, there is a certain bias in favour of the authorities; and the evidence of a police officer will often be heard with greater respect than that of a defendant.

"It was to counter these advantages that our ancestors, starting many hundreds of years ago, evolved a systematic bias in favour of the defence in criminal trials. Thus we have habeas corpus, to prevent a person from being held in captivity without charge or conviction. We have the presumption of innocence, so that the whole burden of proof falls on the prosecution, and that any substantial defect in the prosecution case must result in an acquittal. We have trial by jury, to ensure that judgments of guilt or innocence shall be made by a defendant's peers, and not by a judge employed by the Crown. And we have the double jeopardy rule, to ensure that an acquittal is the complete end of a prosecution, and that a defendant need not live under fear of being tried again before a different judge and jury or in a different climate of opinion.

"Such is the wisdom of our ancestors as evidenced through thirty generations, and as revered throughout the whole English-speaking world. As the Leader of the Conservative Party, I consider myself bound by that wisdom. I see no good reason for changing the double jeopardy rule. There is no public emergency that seems to require any departure from the rule. Indeed, in the far greater emergencies of war—in the French war of the early 19th century, for example, and in the two German wars of the 20th century —there was no departure from the rule.

"It has been suggested that the rule should be modified in the gentlest manner—that a case can be reopened only if evidence is later found that would almost certainly have produced a conviction as the earlier trial, and in cases where a conviction would lead to heavy punishment. As I have already stated my presumption in favour of our ancient laws, and denied that any reason can be found for change, I do not need to consider the details of this proposal. I will only say that to depart from a rule is very often to establish a new rule. We have seen this in recent years with the presumption of innocence. The Drug Trafficking Offences Act 1986 reversed the burden of proof as regarded confiscation orders against drug dealers. We were told at the time that this was an exceptional change from the ancient rule and that it would not be allowed to form a precedent. Within two years, the exception was quietly accepted as a new rule; and we are today on the verge of accepting the full American system of civil asset forfeiture—as corrupt and arbitrary a procedure as ever was seen in a civilised country.

"Moreover, while the proposal to change the double jeopardy rule is in form domestic, I cannot help but see a European Union agenda in its substance. My audience will surely know of the proposed Corpus Juris, which is the draft of what may become a single European system of criminal justice. If adopted, this would set up a European Public Prosecutor on the continental inquisitorial model. This person would have an overriding jurisdiction throughout the European Union, to instruct national authorities to issue arrest warrants, to have suspects to other countries in Europe, and to hold them in detention for up to nine months without the need to produce evidence of a crime and with no right to public hearing. Trials are to be held before professional judges sitting alone, 'and not simple jurors or lay magistrates' (Article 26). And so there is no place in this new system of law for either habeas corpus or for trial by jury.

"Nor is there any real place for double jeopardy. Article 27(2) reads: In the case of total or partial acquittal, appeal is... open to the EPP as a prosecuting party.... "Though the Government has promised to resist the imposition of Corpus Juris, it is quietly enacting it into domestic law. This is the reason for the limitations on trial by jury now proposed by Jack Straw. It is the reason for the proposed recognition by the British courts of all European judgments and orders and warrants without prior investigation. It is the reason for the Lord Chancellor's proposal to abolish the ancient system of lay magistrates and to replace them with professionals. The Government has promised to resist Corpus Juris, while quietly removing those ancient constitutional rights most incompatible with its eventual imposition. The questioning of the double jeopardy rule must be seen in this context.

"All this being the case, I promise that the Conservative Party will put up a hard and uncompromising fight against any efforts to change the double jeopardy rule. And if we are unsuccessful in opposition, then we shall, on returning to government, make its restoration a matter of urgency."

That is what I would say in Mr Hague's position. That, I think, is what any English conservative would say in his position. He, however, has decided to call for the rule to be abolished. Or so his publicity people told the newspapers last Sunday. I could almost see the wolfish smile on the Ministers' faces as they denounced him for going further than they intend. Instead of facing a resolute opposition when they introduce their own change in the rule later this year, they will now be able to cry it up as a moderate compromise; and no one of any importance in Parliament will say a word against.

It is at times like this that I despair for the country. We have a Government half Jacobin half traitor, opposed by a Conservative Party under the most childishly stupid leader in its entire history. During the past three years, the Tories have opposed nothing of substance. We have been repeatedly to war for reasons unconnected with our national security. No opposition from the Tories. We live under a mildly Orwellian tyranny, where what used to be the nuttier whims of local government officers have become the law of the land. No opposition from the Tories. The Government has announced that it will use the security services to destroy political movements that it finds offensive. No opposition from the Tories. The Representation of the People Act 1999 removes most of the safeguards against electoral fraud we have built up over the past hundred and fifty years, so that the result of any referendum or general election can now be rigged in favour of the Labour Party. No opposition from the Tories. They have made an immense noise about the age of consent for homosexual intercourse and the teaching of homosexuality in state schools—as if these things really mattered. But they have not opposed the Government on any important issue.

Mr Hague does sometimes go through the motions of opposition, but everything he says sounds like a cheap insurance policy. Every tempting main clause is balanced by a mass of exclusions or by a lack of means of enforcement. He wants to keep the Pound—for five years. He wants no more treaties of European integration—but ignores that nothing more is needed to bring on a United States of Europe. He "sympathises" with the outcry over the conviction of Tony Martin, imprisoned for killing a burglar—but carefully avoids endorsing anything as traditional or popular as the right to defend life and property with lethal force.

There is something deeply cynical in this pretence of opposition. Time was when systematic dishonesty worked for the Conservative Party. Its leaders used regularly to play at articulating popular discontents, and then sit back while the votes flooded in—and then do nothing in government. The problem for the Tory Party is that dishonesty no longer works. The various elections at the beginning of this month show that. We have an atrociously bad Government approaching a general election. Under normal circumstances, Labour would have been slaughtered, losing a swathe of authorities to the Conservatives. What the Conservatives in fact managed was a half decent performance in the council elections and a by-election lost to the Liberal Democrats—only the second loss of its kind while in opposition, I am told, in the past hundred years. It is certain that many voters, goaded by misgovernment, are willing to hold their noses and vote for a change from Labour—even a change to the Quisling Right. But it does not now seem likely that they will vote Conservative in enough numbers to drive Labour from power at the next election. Most discontent is expressed by not voting at all.

Of course, it can be said that Mr Hague has now stopped pretending to oppose, and is making a big effort to pick up support across the country. Though feeble and therefore suspect on first appearance, his comments on Tony Martin and bogus asylum seekers do go beyond the normal bounds of political discourse. Some of the Labour rage at his recent comments does reflect a fear that he might be on to something. His problem, however, is that his comments show as little understanding of these issues as a drunk at a bus stop might have. He has no idea of how to maintain order and freedom within a constitutional framework. A true conservative would reach out to the people and explain how the troubles we now face are the natural effect of departing from our ancient ways. He would argue that the first defence against crime must come from an armed citizenry, and then from a system of laws that imposes real punishments for real crimes. He would argue against the mass of "victimless crimes" that now waste police time and blight innocent lives, and against the horde of social workers and probation officers who serve only to corrupt the administration of justice. Having done this, he would cherish the constitutional freedoms and privileges that we inherit from the past and that have been won and defended with so much blood.

But that would mean having a conservative in charge of the Conservative Party. Luckily for the police state fascists who now rule this country, there is only William Hague to worry about—and why overly worry about a man who is so busy in their interest?

Free Life Commentary,
an independent journal of comment

published on the Internet
Issue Number 41
25th July 2000

Jack Straw, Corruption,
and the New World Order
Sean Gabb

For the past month, I have been brooding over an article I found in The Guardian newspaper of last 21st June. "Straw declares war on corruption" the headline reads. It tells how, pressed by the Organisation for Economic Cooperation and Development, the British Government is planning a new law. Bribery is to be made a more serious offence, and its legal definition widened to cover acts not previously criminal. The most important new offence will be bribery of foreigners committed by British citizens abroad. It will be illegal, for example, for British companies to offer bribes to get export orders, or for British individuals to bribe their way out of foreign trouble. To enforce this law, the authorities will use their existing or yet to be created powers of surveillance—telephone tapping, burglary of houses and planting of listening devices, monitoring of e-mails, and so forth.

Announcing the proposals in the House of Commons, Jack Straw, the Home Secretary, said: Corruption is like a deadly virus. It has no boundaries. We need to fight it wherever it is found.

For too long dishonest individuals have profited at the expense of undermining the integrity of professional and public life in this country. A few Conservatives, I imagine—though without Mr Hague's encouragement or support—will oppose the Government on purely commercial grounds. They will explain how in many countries, doing business is inseparable from dealing with a swarm of ministers, officials and well-connected businessmen, all holding their hands out for a bribe. Making it criminal here to put money into those hands will hurt our export trade. At best, companies will relocate their headquarters to other countries where they cannot be prosecuted, or where similar laws are less fully enforced. In any event, British workers will suffer.

This is a true objection, and I hope it is pressed very hard - such being the best the Tories have to offer nowadays in defence of freedom, and to be fair such being the argument most likely to have an effect on the Government's legislative intentions. But it is not a full objection. It does not sufficiently explain what is at once so dangerous and arrogant about the proposals. And so I will make my own comment on them. In particular, I will discuss the following issues: the blurring of jurisdictions; the hypocrisy of our political masters; and what motives can reasonably be ascribed to them.

1. Blurred Jurisdictions

Part of what makes our civilisation so unlike all others is that it has never—or not since Roman times—been ruled by a single government. Instead, power has been divided between many states, each able to make whatever laws it pleased, but not on the whole to enforce these outside its own borders. Roman law and the various European systems that derive from it do assume a right to punish for crimes committed abroad. But this has not been a right much insisted on. States have usually followed the English practice of exercising extraterritorial jurisdiction only where vital interests are threatened, or to punish horrible crimes that would otherwise go unpunished.

Because power has been divided, it has been a less effective tool than elsewhere for preventing the happiness and progress of mankind. It has been possible for states to compete not just in war, but also in their internal arrangements, and for those most successful at enabling happiness and progress to gain at the expense of the others. Think of the Huguenots who took themselves and their capital out of France, to the enrichment of England, Holland and Prussia. They went to countries similar enough to their own for them to assimilate without trouble, but with very different religious and commercial policies. Fears of a similar loss kept the French State under control for the next hundred years. Or think of those who have become temporary refugees, able to indulge their tastes abroad without risk at home. Think of Voltaire. He lived in Geneva, where he could write as he pleased, but crossed into France whenever he wanted to see a play—this being a pleasure banned in Geneva. Think of A.E. Housman, who went every year to Venice to avoid breaking the British laws against homosexual acts. Think of the millions of young people from all over Europe who go nowadays to take drugs in Amsterdam and return home to no penalty. 

This diversity is now threatened. The proposed new law on corruption is not an isolated disturbance of national sovereignty and limited jurisdiction, but a stage in their destruction. For us in England, the European Union is the clearest and most present threat to diversity. But there are dozens of other bodies set up by treaty and working towards a common juridical space. Those concerned with the "war" against drugs and money laundering are standardising laws throughout the world, with the eventual aim of a single enforcement. Those concerned with "crimes against humanity" are already acting under a universal jurisdiction. There are proposals for similar laws to protect the environment and to disarm the human population. The corruption law is part of this tendency. It is to be an extension of earlier precedents, and is to be the precedent for other acts of the same kind.

The natural result of these acts combined will be a world government. On account of its growth, this will not be a democratic government. In form, it will be a web of supranational institutions, all exercising powers delegated by national governments. In substance, it will be a reasonably united élite, giving orders to more or less disunited nationalities. There will be occasional dissent, as one nationality tries to exercise its theoretical sovereignty. But as in the Habsburg Empire, this will be first contained and then crushed by a directed coalition of the other nationalities. Nor will it be desirable for such a government to be democratic so long as the majority of its subjects are semi-literate paupers with nothing immediate to lose from a redistribution of wealth.

It will not be a particularly liberal government. In some places, it will impose better standards of civility and due process than currently exist. But for the more civilised portions of mankind, there will be a perceptible levelling down. We can see this with the Corpus Juris, which is a proposed criminal code for the European Union. Regardless of the smiling assurances about human rights protection, its procedural safeguards do not include trial by jury, habeas corpus, or a meaningful rule against double jeopardy. We can see it in the international treaties against drugs and money laundering. These all require signatory states to reverse the burden of proof in criminal cases, to enact arbitrary confiscation laws, and to abolish banking and other financial privacy.

It is reasonable, moreover, to suppose that a world government would be open to capture by any number of powerful interest groups; and the lack of external competition would ensure that mistakes become not only general, but also irreversible. The closest comparison I know is to the world of late antiquity, when all the Greek and Italian city states and all the surrounding kingdoms had come under the domination of Rome, so that one civilisation had just one government. This was the world of Commodus and Diocletian and Constantine, of civil tyranny and grinding taxes and religious persecution, where an oppressed citizen had no refuge but in suicide or flight to the savage realms beyond the frontier. This kind of world will not come again in our lifetimes. Nor might the common people be quite so impoverished next time. But the fairly liberal world in which we do live is not the automatic product of time. It rests on foundations that are being undermined one stroke at a time. The proposed new law on bribery is one of these strokes.

2. Labour Hypocrisy

Let us, however, return to Mr Straw's words in Parliament: Corruption is like a deadly virus.... We need to fight it wherever it is found. Brave words, even if dangerously mistaken. They must be read, however, with certain implied reservations. For all they will be used to enslave us, they are not intended to apply to Labour Ministers or their relatives or friends or bed or business partners. We know this from the following cases:

First, we have Peter Mandelson. Shortly before the 1997 general election, he borrowed £373,000 from Geoffrey Robinson, a fellow Member of Parliament on the Labour Benches, and put this towards buying a house in London. The loan was arranged in secret, the contract being drafted by a friend; and it was not entered in the Commons register of interests. It gave Mr Robinson the right to impose a charge on the house if repayments were not made in good order.

This loan arranged, Mr Mandelson then obtained a mortgage of more than £100,000 from the Britannia Building Society. According to various newspaper reports, he neglected to mention the Robinson loan. Since building societies do not generally lend on property over which there is or might be another charge, it is reasonable to suppose that he was obtaining goods and services by deception and committing various other offences described in Theft Acts.

These facts placed him into Mr Robinson's hands: one word and he might be ruined. Suspicion is also reasonable, therefore, when on becoming President of the Board of Trade, Mr Mandelson appointed Mr Robinson as one of his ministerial deputies—a first promotion after 20 years on the back benches.

Was this not one of those "dishonest individuals [who] have profited at the expense of undermining the integrity of professional and public life in this country"? Evidently not. When his conduct was discovered, Mr Mandelson resigned from the Government. But there was no police investigation into his behaviour. Today, he is back in the Government as Secretary of State for Northern Ireland —a post that carries responsibility for law enforcement in part of the United Kingdom. It is said that he owed this easy treatment to certain intimacies that he once enjoyed with the Prime Minister - intimacies that might be embarrassing if ever made public.

Second, we have Mr Straw himself. On the 14th March this year, his brother William went into a Nottinghamshire police station and confessed to assaulting a 14 year-old boy. According to accounts published just after on the Internet, the boy was his son and the assault was sexual. He was not charged, and no further investigation was ordered.

Not a word of this alleged offence appeared in any of the established media until the 5th April, when Punch carried a long but guarded report on how the Government had leaned on every newspaper editor in the country not to cover the story.

William Straw was eventually charged with a later common assault on a 16 year-old girl. This gained a few column inches in the newspapers, but no further comment was made when all proceedings were dropped on the 19th July.

Jack Straw is not responsible for his brother's real or alleged acts. But he is responsible for the media blackout on reports about his brother. And there is natural reason to believe that he obtained or tolerated preferential treatment for his brother after the March confession. According to a senior police officer quoted in the Punch article, "it would be a very brave custody sergeant who would release back into the community a man who had confessed to [such a] crime".

We have here a case on first appearance not of financial but of political corruption. Will Mr Straw order an investigation of his own actions or of what was done in his name? Probably not. Nor did he order any investigation of the leniency with which his son was treated after pleading guilty to supplying drugs early in 1998. Nor, I am certain, will he insist on proceedings against himself for having recently ordered his chauffeur to drive at 103mph to get him on time to a political meeting.

Nor will there be any meaningful investigation of the claims that Tony Blair's father in law has been fraudulently obtaining welfare benefits, or that Gordon Brown bought a flat in London under suspicious circumstances. Nor will there be even a mention allowed in the established media of the still more alarming claims about the Cullen inquiry into the Dunblane shootings, or of the claims about a guilty plea made at Bow Street Magistrates Court back in 1983 by a person now of the highest importance. Nor will it be discussed how the Government is using the security services to promote its own electoral advantage—something the Conservatives did only occasionally and then always as a byproduct of fighting the Cold War —and how individuals like Robert Henderson and Greg Palast have had their lives turned upside down for the crime of upsetting senior members of the Labour Party.

All the above facts, and many others beside, can be explained only on the assumption that our new political class thinks itself above the law. It is no more than a matter of time before these people start murdering their opponents.

A Question of Motives

I do not think it can be denied that we are ruled by a more than usually scummy set of politicians, and that these are presiding over a steady collapse into despotism. The only question worth asking is whether they are responsible for this collapse in more than the purely formal, constitutional sense—whether people like Jack Straw and Tony Blair really can be supposed to want an international police state in which actions and speech, and even thought, will be controlled by a masterclass made up of people like themselves and their friends in big business. In short, I am asking whether I can use that unfashionable and greatly misunderstood word "conspiracy".

Aside from fears of being called a crank, there are two main objections to speaking about conspiracies. The first is that conspiracy theories are to politics what creationism is to biology. They raise hypotheses not needed to explain what is being studied; and they prevent a full understanding of the causes that are most likely have brought about what is being studied.

Look at the money laundering laws. It is unlikely that anyone wanted these simply because they were an engine of despotism. Police forces wanted them because they opened a new and possibly more successful front in their notoriously lost war on drugs. The big banks wanted them because their complexity could be used to put smaller competitors out of business. Administrators, both national and international, wanted them because they opened a new area for regulation and thereby opened new opportunities for status and promotion. The tax authorities wanted them because they made it easier to detect and punish evasion. The politicians wanted them because all these others wanted them, and because nobody made a big fuss against them.

Where any attack on freedom is concerned, there are sectional interests that benefit without having an overall agenda of control - and that may even oppose other attacks from which they do not benefit. The proposed new law on bribery and others of its sort can be better explained by a public choice analysis than by claims of some grand conspiracy. If these new laws are coming faster now than in the past, we need to bear in mind that the techniques of control are better developed now than in the past. Modern information technology enables sectional interest groups to push for modes of surveillance and control that once only existed in the minds of dystopian science fiction novelists. 

Yet, but all is being said, a purely institutional analysis can be pushed too far as explanation. It is a necessary condition, but is not itself sufficient. Just because some people have an interest in promoting a bad law, and because that law is technically possible, does not mean that it will automatically be made. It must also be thought right and proper by those with the power to make or refuse it.

For example, there were strong commercial interests in Victorian England that would have gained from a return to protection after about 1870. In Germany, in America, and in other countries, these interests prevailed. Here, they did not prevail until 1931. The reason was not entirely the strength of opposing commercial interests. It was also an autonomous belief in the moral rightness of free trade. British manufacturers did not put as much as they might have into "fair trade" campaigns, in part because they thought it a rather shameful cause: and others campaigns that were funded had no success against a political establishment unwilling to listen to any case for protection. 

The public choice analysis, then, can be used to explain how bad laws are made. But it cannot by itself explain why some are made and others are not. This throws us back to looking at the character and motivations of those in power. Doubtless, there have been sectional interests hard at work on persuading Jack Straw to make bribery an extraterritorial offence. But why is he willing to do that, bad as its consequences will be, and when he would scornfully reject equally strong pressure, say, to bring in the death penalty for racially motivated murder? The natural answer is that he approves of that particular law. 

Here, though, we come to the second objection to claiming that Jack Straw and his colleagues want a new despotic order. This is that they are not self-consciously wicked people. Brian Micklethwait has been arguing this point with me for over a year now, and I have no doubt will continue arguing it for some years to come. His main point is that while our rulers are doing things that will have bad consequences, they cannot reasonably be accused of wanting these consequences. If they are working to destroy our national independence, it is because they believe that the resulting international government will abolish war and tyranny and poverty.If they are destroying our liberal institutions, it is because they believe these to stand in the way of their grand objectives. Their ends are good, Brian says, but they are ignorant of how their chosen means will not achieve these ends. His conclusion is that rather than accuse these people of conspiring against liberal democracy, we should sit them down and patiently explain to them the facts of which they are currently ignorant.

Assuming that I understand Brian correctly, there are two counter objections. First, he seems to have an unreal conception of wickedness. Before attaching moral blame to our rulers, he wants to see them behaving like pantomime villains—twirling their moustaches as they confess their true intentions in whispered asides. But excepting a few followers of Nietzsche or the Marquis de Sade, nobody is wicked in this sense. Whether or not he deceives the world, every villain deceives himself. Hitler and Stalin did not think themselves bad men. Though they committed atrocious crimes, they claimed—and sincerely believed—that what they did was right, or at least was the best that could be done in difficult circumstances. Thieves universally demonise their victims as people who have gained unfair advantages and who therefore have no right to their property. Most murderers look on their victims as human trash who are better off dead. Those criminals who do not blame their victims take refuge instead in some sociological cant about the force of upbringing or other external circumstances.

Of course, our rulers do not consciously intend to do evil. On their lips and in their minds are only the fairest intentions. And they believe in their own essential goodness in exact proportion as they enrich and privilege themselves by trampling on the rights of others.

Turning to the second counter objection, Brian seems not to understand the nature of ignorance as a defence to charges of wrongdoing. Both lawyers and moral philosophers make a distinction between innocent and culpable ignorance. The former is a good defence, the latter not. Suppose a very young child picks up a loaded gun. Waving it around, he kills someone. Treating the child as a murderer would be absurdly unjust. He cannot be presumed to understand what he was doing, and so cannot be held responsible. This defence would not be open to an adult in the same circumstances. Because he knows—or can reasonably be presumed to know—that pointing a loaded gun at someone is dangerous, ignorance will be no defence. Even if it is accepted by a court, its only effect will be to reduce a murder charge to one of manslaughter.

We can apply this distinction to politics. In living memory, our rulers have committed two main derelictions. Before 1979, they acted on the belief that unemployment was caused by a shortage of aggregate demand, and that it could be cured by monetary expansion. They were wrong, and they created a set of economic problems that nearly bankrupted the country and that have taken a generation even partly to solve. But the politicians in charge of economic management cannot be held responsible for the outlines of their policy. They were busy men, without time or inclination for subtle speculations of their own. They were advised by men who were generally accounted the best economists of the day. They looked at the Phillips Curve and heard all the talk of multipliers, and were convinced by the analysis. Moreover, they had what they believed were solid practical demonstrations. They thought they had seen the failure of preKeynesian economics in the Great Depression. They thought they had seen the success of Keynesian economics in the age of full-employment and prosperity that had followed the War. No one can reasonably blame them for not having read the works of Milton Friedman and F.A. Hayek. These works were derided by the mainstream economists when given any attention at all. For all they presided over an economic disaster, the politicians of the day cannot be personally blamed for what happened. They were ignorant, but innocently so.

Since then, however, the politicians have turned from wrecking the economy to abolishing our rights and liberties. If this is the effect of ignorance, it is culpable ignorance. Economics is a difficult subject for most people, and there is much plausibility in the Keynesian analysis—I know because I teach it. But only a very common education is needed to know the probable effect of diluting the double jeopardy rule or reversing the burden of proof in criminal proceedings, or limiting freedom of speech and association, or handing effective power from national and democratic institutions to unaccountable foreign bureaucrats. Economics is not part of the standard curriculum that our political class follows at university. But law and history are part of that curriculum. Any politician who claims not to know the nature of what is being done to us is either stupid or guilty of a self-deception that would not stand up five minutes in a criminal trial.

And so it is legitimate to presume that Jack Straw and his colleagues desire the natural effect of their actions. They do want a world in which they are masters and we are slaves, even if they prefer to cover this with fashionable euphemisms. Mortgage fraud and protecting their relatives is only the surface of their guilt. Since the Glorious Revolution, the custom in this country has been to work for the downfall of bad rulers, but otherwise to leave them unpunished. The custom on the other side, however, has been that the rulers should observe certain limits to their misgovernment. These people have broken through the restraints of custom. I see no reason why we the people of this country should not also drop that restraint.

Free Life Commentary,
an independent journal of comment

published on the Internet
Issue Number 42
5th September 2000

Thoughts on the DNA Database
Sean Gabb

Free Life Commentary,
an independent journal of comment

published on the Internet
Issue Number 63
21st February 2002

The "Metric Martyrs" and the Constitution
Sean Gabb

On Monday the 18th February 2002, judgment was given in the Court of Appeal on the "Metric Martyrs" case (Thoburn v Sunderland City Council). These were appeals from four men who had in different ways been told by lower courts that it was no longer legal for them to use the English system of weights and measures for any purpose of trade. The grounds of their appeal were that the relevant laws had been made further to powers contained in the European Communities Act 1972, whereas it appeared that their right to continued use of the English system had been protected by the Weights and Measures Act 1985. According to the doctrine of implied repeal, an earlier Act cannot be used to amend or repeal a later Act. Instead, where any conflict arises between Acts of Parliament that cannot be smoothed by judicial interpretation, the later one always takes precedence: leges posteriores priores contrarias abrogant .

What made this case so important was that it was brought to clarify the constitutional status of our membership of the European Union. Either the Judges could apply the doctrine of implied repeal, in which case, our membership of the European Union was compromised to whatever degree the European Communities Act had been repealed, or they could announce that Parliament was no longer sovereign, and that we were now unambiguously under the rule of a centralising, Roman Law despotism based outside this country. In the judgment given last Monday, the four men lost their case. According to Lord Justice Laws and Mr Justice Crane, the 1972 Act was protected against implied repeal by the 1985 Act, and the English system of weights and measures has been legally abolished to the degree stated in the disputed laws.

Now, looking at the superficial aspects of the case, it is a defeat. As a conservative, I deplore the legal suppression of weights and measures which are an integral part of our culture. Whatever its merits considered purely in themselves—and these are probably not so great as is usually claimed—the metric system is an alien thing. Its imposition cuts us off from part of our history, and makes it harder for us to enjoy that intimate communion with the past that is part of any nation's strength and cohesion. As a libertarian, I deplore the imposition of anything. If greengrocers want to sell bananas by the pound or the kilogramme—or indeed by the ancient Athenian mina—that is a matter for them and their customers, not for the authorities. However, if we look beneath the surface, we can see that the judgment was not so much a defeat as a great if conditional victory for both conservatives and libertarians. For while it would not have been politically conceivable for the Judges to strike down any part of the European Communities Act, they did preserve parliamentary sovereignty to the extent that a majority of the House of Commons will be able in due course to repeal that Act by positive legislation; and that is, let us face reality, how we shall eventually withdraw from the European Union—not by some clever legalistic trick, but by full public debate followed by parliamentary repeal. And of equally great importance for us, when the Judges squared the apparent circle given to them, they did so by reviving the ancient doctrine of fundamental law.

This is a mediaeval doctrine that last flourished in the rather strange legal soil of the 17th century. Its most famous statement is in Lord Chief Justice Coke's judgment in the case of Dr Bonham (1610). Bonham had been fined for practising medicine without a licence from the Royal College of Physicians. The charter under which he was fined had been confirmed by Act of Parliament. In giving judgment for Bonham, Coke CJ commented:

And it appears in our books that in many cases the common law will controul acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such act to be void (8 Coke's Reports, 117-18).

By the end of that century, though, the whole notion of a fundamental law that could be used to judge the validity of Acts of Parliament was in decline. In the American colonies, the notion retained its hold among the lawyers, and is preserved in the Constitution and Bill of Rights. But in this country, the very different notion emerged of the absolute legislative sovereignty of the Crown in Parliament. Our rulers were restrained by their sense of right and wrong—or more often by their caution—in exercising power, but were under no legal restraint so long as they could rely on Parliament to pass whatever Acts they wanted. Parliament was sovereign. Its Acts could be interpreted by the courts—and frequently have been into senses that no Member of Parliament might have recognised in the division lobbies—but could not be called in question.

The doctrine as a whole was elaborated to its full logical conclusions by A.V. Dicey in his Law of the Constitution (1885). It was fully accepted by the courts. "For us an Act of Parliament duly passed by Lords and Commons and assented to by the King, is supreme, and we are bound to give effect to its terms" said Lord Dunedin in 1906 (Mortensen v Peters, 8 F.(J.C.), 93,100).

The only limitation of sovereignty was its protection. It was held that no Parliament could bind itself. Parliament could do anything, except preserve its own Acts from repeal. An Act from the time of Henry VII, for example, states that it cannot be repealed. An early 19th century annotator of the State Trials refers to this as a void provision. A later Act would always override an earlier one—and do so regardless of whether that had been the intention of Parliament. Repeal could be intended or simply implied. "The Legislature cannot, according to our constitution" said Lord Justice Maugham, "bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal" (Ellen Street Estates Ltd v Minister of Health [1934] 1 King's Bench Reports , 753. 14.).

Now, suddenly, the notion of fundamental law has been pulled out of the legal grave in which it had been rotting for three hundred years, and declared part of the law of our Constitution. In one sense, it was the only way out of the paradox that the "Metric Martyrs" case had apparently raised. By announcing that there was a "hierarchy of Acts of Parliament" - "ordinary" and above them "constitutional", the Judges were able to save the European Communities Act from implied repeal. Undoubtedly, they emphasised, European Union law is supreme in this country—but only to the extent given by the European Communities Act, which can be repealed should Parliament explicitly decide to do. Even so, short of explicit repeal, it is immune from any implied repeal. But in another sense, the judgment is only an extension of the growing impatience that Judges have felt for a very long time with the constraints imposed on them by the doctrine of parliamentary sovereignty. And, in spite of the status given for the moment to the European Communities Act, these are constraints that should be regarded with impatience by everyone who values freedom in this country.

"The sovereignty of the Crown in Parliament" is a nice set of words. The phrase rolls off the tongue and carries the mind back to earlier ages in our history. But the phrase no longer describes what is at all a desirable state of affairs. We are ruled by people who get an almost sexual thrill from messing up our lives. Because they run the two main parties, they are able to pack the House of Commons with a combination of sheep who would vote black white and white black if ordered, and of weaklings who know that something is wrong, but are controlled by bribes and blackmail. Every so often, a few decent people get elected. But that is because the control is not yet perfect; and its main effect, sadly, is to keep alive in some minds the delusion that parliamentary democracy still actually exists. The general result is tyranny mitigated by recollections of a better time.

The Judges have been worried by this for generations. According to Lord Wright in 1942,

Parliament is supreme. It can enact extraordinary powers of interfering with personal liberty. If an Act of Parliament... is alleged to limit or curtail the liberty of the subject or vest in the executive extraordinary powers..., the only question is what is the precise extent of the powers given (Liversidge v Anderson , Appeal Cases, 106).

Since then, things have grown worse. Bad laws pour out in a continual stream. A well funded interest group only has to demand, or a media campaign to start, and the politicians reach for their legislative hammer. In the 1960s, the insurance companies complained about the level of awards in civil cases where they were known to stand behind a defendant; and so the politicians virtually abolished the right to trial by jury in the civil courts. In 1987, there were complaints when some defendants in a criminal case pooled their right of peremptory challenge to secure a more sympathetic jury; and so the politicians abolished that right. Around the same time, the authorities wanted to raise the conviction rate or financial crimes; and so the politicians created the Serious Fraud Office, and gave it the right to compel self-incrimination. In 1991, a few children were bitten by dogs; and so the politicians brought in a law that almost everyone now regards as mad. Arguments about the rule of law drew at best a blank stare, at worst an exultant sneer.

Nor is it just that Parliament is churning out bad laws—though many are very bad. It is that Parliament is churning out thousands of pages of new law every year, supplemented by thousands more of statutory instruments. No one has read or can read all of these. No one is co-ordinating the process of their manufacture. Quite often, no one knows what the laws are on an issue from one day to another. Not surprisingly, they frequently contradict each other. This is what led to the challenge to the metrication laws. The Weights and Measures Act does contradict the European Communities Act. No one intended this to happen. No one noticed it had happened for about 15 years. But it did happen.

Now, the politicians are being brought under control. Let me quote from the relevant sections of the judgment:

In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental.... And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the [Human Rights Act 1998], the Scotland Act 1998 and the Government of Wales Act 1998. The [European Communities Act] clearly belongs in this family.... The ECA is, by force of the common law, a constitutional statute.

Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature's actual not imputed, constructive or presumed intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill pursuant to Pepper v Hart [1993] AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute.

This development of the common law regarding constitutional rights, and as I would say constitutional statutes, is highly beneficial. It gives us most of the benefits of a written constitution, in which fundamental rights are accorded special respect. But it preserves the sovereignty of the legislature and the flexibility of our uncodified constitution. It accepts the relation between legislative supremacy and fundamental rights is not fixed or brittle: rather the courts (in interpreting statutes, and now, applying the HRA) will pay more or less deference to the legislature, or other public decision-maker, according to the subject in hand. Nothing is plainer than that this benign development involves, as I have said, the recognition of the ECA as a constitutional statute.

Some people, I know, are angry that the European Communities Act has been given this special status. However, its protection against implied repeal comes not—as the Sunderland City Council lawyers argued—because on entering the European Union, we accepted a new legal order in which our own constitutional arrangements were reduced to the status of a town council, but because the Common Law now recognises a whole class of special Acts of which the European Communities Act is presently one. If we ever repeal the European Communities Act by explicit Act of Parliament, it will drop out of this special class, but the special class will remain.

And we can repeal the European Communities Act. That much is now certain. The various judgments in the Factortame legislation left the position of European Union law highly ambiguous—was it or Parliament supreme?. This judgment make it clear that the laws of the European Union enjoy a borrowed primacy in England. Parliament may have chosen to indulge a foreign authority, but cannot subordinate itself to it: "there is nothing in the ECA which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament's legislative supremacy in the United Kingdom. Not because the legislature chose not to allow it; because by our law it could not allow it."

This is not the outcome that the supporters of the "Metric Martyrs" were hoping for. It is not an outcome, I think, that anyone was expecting. The point of fundamental law was not raised in any of the hearings, and it is highly unusual for Judges to go beyond the points raised in a case except for giving obiter dicta , which have no binding force as precedent. But it is a not a judgment that the Government was hoping for. Its general implications have yet to be revealed. But it seems reasonable that a vast mass of bad laws can now be set aside as inconsistent with fundamental laws that they have not explicitly repealed. Therefore, the sections of the Road Traffic Act 1982, that allow the Police to impose fines on motorists without going to court, may be inconsistent with the guarantee of due process in Magna Carta. The various Firearms Acts—especially the most recent ones, which are intended to criminalise rather than regulate the possession of guns—may be inconsistent with the Bill of Rights. The Government's proposed Confiscation Agency, which will import the American doctrine of civil asset forfeiture, will require the explicit repeal of Magna Carta and parts of the Human Rights Act. At a stroke, the Judges have put the politicians under a restraint that may be as severe in practice as that imposed by the Supreme Court in America. It means that they can carry on their game of stealing our freedoms—but they must do so in the open, by spelling out what they are doing in words that cannot be ignored by the courts. I have no doubt that if they had known in advance the outcome of this case, the authorities would quietly have connived at breaches of their metrication laws.

We have lost the right to use our traditional weights and measures. But we may have gained the vast benefit of living again under a Constitution that protects our fundamental rights. I feel sorry for the four men who have taken on the considerable legal costs of getting this case into court, and I hope that the public appeal will be sufficient to pay these costs. But it was, most emphatically, a case worth getting into court. It has given us, I repeat, a great and unexpected, if conditional, victory.

Free Life Commentary,
an independent journal of comment

published on the Internet
Issue Number 67
26th June 2002

Why the Double Jeopardy Rule
Should not be Changed
by Sean Gabb

In a speech given last week, Tony Blair announced that the Government is to change the double jeopardy rule, so that an acquitted person may be tried again for the same offence.(1) The relevant Bill has yet to be published, but will most likely follow the recommendations made three years ago by the Law Commission.(2) If so, the change will in the first instance be limited. The courts will probably be able to set aside an acquittal in these circumstances: where the offence was very serious—the Ministers all promise that the change will apply only to murder—where new evidence has emerged that was not available or reasonably obtainable at the first trial; where this new evidence greatly strengthens the prosecution case. We are also told that the changed rule will allow only one more trial, and that an absolute bar will remain to repeated trials for the same offence.

In his speech, Mr Blair came out with the usual New Labour smokescreen of presenting every change as a "modernisation". We need, he said, to take a legal system fashioned in the nineteenth century and make it suitable for the twenty first. Of course, circumstances do change over time, and institutions that were suitable in one age may not be so suitable in another. But there is more than just pragmatism in this New Labour talk. It is a vital part of "the Project" that changes should not be discussed in terms of first principles—whether the ideas being advanced are true or false. They should instead be presented as new and modern. The intended—and usually achieved—effect of this is to cast opponents as defenders of the old and "outmoded". This done, the changes can be carried through with minimal discussion, and with the support of people who seldom care what they are doing, so long as they can feel charged with the warm glow of doing something "progressive".(3)

A subsidiary point made in the speech was that the time has come to put the rights of victims before those of defendants. This is another smokescreen put up to prevent rational discussion. It sets debates in terms of bold reformers grappling as best they can with huge problems, against legalistic pedants who do not really believe in punishing criminals. Unlike the "modernisation" talk, this is not a move confined to Labour. It was used for a generation by Conservative Ministers every time they wanted to push the country a little closer to a police state.

In this kind of debate, the double jeopardy rule is presented as a bar to the efficient prosecution of criminals. A trial may end in acquittal because a jury has found a verdict contrary to the evidence, or because fuller and better evidence subsequently comes to light. According to something called the National Crime Faculty, there are currently 35 people walking around free who should be in prison for murder, but who cannot be touched because of the double jeopardy rule.(4) Just as a defendant has a right of appeal if the original trial goes against him, it is said, so the prosecution should be able to appeal against unjust acquittals.

However, the double jeopardy rule is neither "outmoded" nor legalistic pedantry. It is an important procedural safeguard for the very reason alleged against it.

In any system of criminal justice, the prosecuting authorities will have a large and permanent advantage over an accused person. They can choose whether, what, when and how charges should be brought. They have unlimited money and access to the best lawyers. They are usually more intelligent, and always more experienced in the workings of the system, than a defendant. So far as the media and many judges and magistrates—and even many juries—are concerned, there is a certain bias in favour of the authorities; and the evidence of a police officer will often be heard with greater respect than that of a defendant.

It is to offset these advantages that civilised countries allow a systematic bias in favour of the defence. On the whole, English law and those systems derived from it contain the most developed bias. There is habeas corpus, to prevent a person from being held in captivity without charge or conviction. There is the presumption of innocence, so that the whole burden of proof falls on the prosecution, and that any substantial defect in the prosecution case must lead to an acquittal. There is trial by jury, to ensure that judgments of guilt or innocence shall be made by a defendant's peers, and not by a judge employed by the Crown. And there is the double jeopardy rule, to ensure that an acquittal is the complete end of a prosecution, and that a defendant need not live under fear of being tried again before a different judge and jury or in a different climate of opinion.

Of course, the current proposal is not to abolish the double jeopardy rule, but simply to amend it. As already said, the proposal is to allow the prosecution one extra chance of getting a conviction, and then only on the production of compelling new evidence. Moreover, while the European Convention on Human Rights—now enacted into English Law—allows prosecution appeals so far as is now proposed, it does not allow any more than that.(5) It is said that this will be a largely technical change that will have no adverse effect on the general protections of freedom in this country.

In replying to this, there are four main points to be made:

First, departing from a rule frequently means making a new rule. We have seen this in recent years with the presumption of innocence. The Drug Trafficking Offences Act 1986 equalised the burden of proof as regarded confiscation orders against drug dealers. It became possible to take the assets of convicted persons without needing to prove the source of those assets beyond reasonable doubt. We were told at the time that this was an exceptional change from the fixed rule justified by the special needs of the war on drugs. Within two years, however, a Criminal Justice Act was passed that extended this confiscation procedure to the assets of all persons found guilty of a serious crime. Today, we are on the verge of accepting the full American system of civil asset forfeiture—in which assets can be confiscated on suspicion, and it is for the owner to sue for their return.

What has happened here could easily happen with the double jeopardy rule. When the matter was extensively discussed last year, a Guardian editorial suggested that the change should apply not just to murder, but also to manslaughter and rape.(6) As for the limitation of one extra trial only, I do not see that lasting more than a few years. If it is worth setting the rule aside for the purpose of allowing one more trial, there is no principled reason for setting it aside for a second or a third trial. It needs only the right case and the right outrage in the media.

Second, though presented as a domestic change, relaxing the double jeopardy rule is best seen as part of the creeping abolition of our ancient laws and their replacement by those of the European Union. For several years, European Union bodies have been discussing the Corpus Juris, which is the draft of what may become a single European system of criminal justice. If adopted, this would set up a European Public Prosecutor on the continental inquisitorial model. This person would have an overriding jurisdiction throughout the European Union, to instruct national authorities to issue arrest warrants, to have suspects to other countries in Europe, and to hold them in detention for up to nine months without the need to produce evidence of a crime and with no right to a public hearing. Trials are to be held before professional judges sitting alone, 'and not simple jurors or lay magistrates'.(7) And so there is no place in this new system of law for either habeas corpus or for trial by jury.

Nor is there any real place for double jeopardy. Article 27(2) reads:

In the case of total or partial acquittal, appeal is... open to the EPP as a prosecuting party....

When the Corpus Juris is finally imposed from Europe, there will be strong resistance in this country. That resistance, however, will be less effective if what we are defending in the case of double jeopardy is a rule that has already been at least once relaxed—and apparently done for our own reasons.

Third, relaxing the double jeopardy rule will tend to complete the abolition of trial by jury. When a person is brought to trial a second time for the same offence, the jury will know that it is because of unusually compelling evidence against him. There will be a presumption of guilt. It is claimed that reporting restrictions would prevent this from happening, and that a jury would not even know they were retrying a case.(8) I cannot believe this to be a serious argument. Admittedly, juries now retry cases where a juror has died or where a previous jury has failed to reach a verdict. But there is a difference between these instances and a full retrial, which must inevitably have been discussed in the media long before the empanelment of the second jury.

Bearing this in mind, and also Article 6 of the European Convention, which guarantees the right to a fair trial, it will probably be necessary to take retrials away from juries and give them to judges sitting alone. They will be better able to set aside the natural presumption of guilt. At the same time, we shall find ourselves subject to heavy punishment without the benefit of trial by jury. In the purely technical sense, of deciding the truth or falsehood of alleged facts, this might not be disastrous: there is no reason to doubt that judges are better at reaching true verdicts than juries. What makes juries so important, however, is that when all serious cases must go before them, political or vexatious prosecutions, or attempts to enforce unjust laws, become much harder. One reason, for example, why the authorities are considering a relaxation of the drug laws is that it is becoming increasingly hard to get convictions where simple possession is concerned. Therefore, an effort to reduce individual miscarriages of justice, will very likely result in the enabling of systemic injustice.

Moreover, even if trial by jury is not abolished, changing the double jeopardy rule will remove one of the main benefits of trial by jury. This is the right of a jury to acquit in the face of the evidence. Juries have used this right in England and America for hundreds of years to nullify bad laws. So far, the right has been effective because the authoriities have only one chance at getting a conviction. Change the double jeopardy rule, and acquittals can be appealed by the simple process of alleging new evidence.

Fourth, the authorities are already bad at investigating crimes. The police are recruited from the most stupid reaches of the population, and are then trained in a culture of brutality and petty corruption. They are joined by a Crown Prosecution Service filled with lawyers of two kinds. There are those so useless that they might have trouble in private practice earning enough to pay for their wigs and gowns. Then there are those with a taste for messing up other people's lives that cannot be fully satisfied in private practice. With these people in charge of law enforcement, the wonder is not how many cases are bungled or unjustly brought, but how many are not. Take away the double jeopardy rule, and they will lose what little incentive they have to assemble decent prosecution cases. If they can try again—and perhaps again after that—why bother making the effort to get it right the first time? Why bother even trying to get it right? As Sir Michael Davies, who used to be a High Court Judge, asked, "Are we going to get a situation where the police and the CPS sometimes say, 'Well we haven't got much of a case, let's have a go, we may pot him, if we don't we'll find something else in five years' time and we can have another go'."(9)

If there are 35 possibly unsafe murder acquittals at present, there may be several hundred unsafe acquittals for other crimes. After the proposed change to the double jeopardy rule, we can expect these numbers to rise enormously—and the finality of criminal justice to decline to the point where all acquittals become merely provisional.

As said, the debate over things like the double jeopardy rule is normally set up as a contest between those who want to do something about crime and those who do not. The appropriate response is to reject the terms of debate and try to show how crime can be reduced without taking away from our fundamental rights. The sort of reforms needed are rather obvious. We need to reduce the number of crimes to those that actually harm life and property. Immense amounts of police time are presently taken up with enforcing the drug laws, and the prisons are crowded with drug offenders. Let drugs be legalised, and there would be an immediate freeing of resources for catching and punishing real criminals.

At the same time, there should be an increased severity of punishment. Once only real criminals could be brought into court, they could be made subject to real punishments. Threaten the criminal classes with heavy fines, or with long prison sentences—or even with the death penalty—and pay more attention to catching criminals, and there would be a diminution of crime.

Then there is the needed reform of the law regarding self defence. A friend of mine recently heard from a taxi driver, how he had nearly been hijacked by a crowd of thugs who stood in front of his car and tried to break through his side windows. The driver accelerated out of the crowd, crushing a few feet as he did so. When he called the police, he was told that he would be arrested and charged with assault occasioning actual bodily harm if any of the thugs chose to make a complaint against him. All over the country, householders are prevented from defending their lives and property by fear of going to prison if they try too effectively. Remember Tony Martin, the farmer still in prison for the bizarre crime of murdering a burglar. There is a law that needs rebalancing in favour of the victims of crime.

These are changes that might reduce crime and the fear of crime to levels last seen in the 1950s. And they could be made without touching a single one of the rights that our laws have anciently given to defendants. The shame is that we have political and media classes that are determined not to let the debate on crime drift away from its present construction of reformers against "the forces of conservatism" or of a supposed polarity between victims' rights and criminals' rights.

All we can really hope is that the Judges will use the powers they have lately taken to themselves to set aside unconstitutional laws. The European Convention is vague about the double jeopardy rule—but that may be no bar to a determined search by the Judges. Earlier this year, they found that—notwithstanding the clear wording of the Weights and Measures Act 1985, and the equally clear rule giving this precedence over the European Communities Act 1972—we have a constitutional right to have the metric system rammed down our throats. If the wording of their judgment is to have more than an occasional or partial meaning, it may be up to them to tell the politicians about our right to a continued double jeopardy rule. Otherwise, the politicians will have their way, and we shall have lost yet another ancient and important protection against the ubridled power of the State.


1. Tony Blair, speech, "Rebalancing the Criminal Justice System, given on the 18th June 2002—available on the Labour Party website,

2. The Law Commission, Double Jeopardy: A Consultation Paper, Consultation Paper No. 156, Her Majesty's Stationary Office, London, 1999.

3. See, for example: "Most accept... the reforms should be practical, based on common sense, not on an outdated ideological debate", Tony Blair, speech of 18th June 2002.

4. David Bamber, "Straw aims to scrap ban on retrial of murder suspects ", The Sunday Telegraph, London, 5th November 2000.

5. European Convention on Human Rights, Protocol 4, Article 7:

No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has been finally acquitted or convicted in accordance with the law and penal procedure of that State.

The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

6. Leading article, "Tried twice over: It is time to scrap the double jeopardy rule", The Guardian, London, 7th March 2001.

7. Article 26. The whole text of these proposals together with a commentary on them is available as follows: Mireille Deams-Marty (Director), Corpus Juris: Introducing Penal Provisions of the Purpose of the Financial Interests of the European Union, Economica, Paris, 1997, ISBN: 2 7178 3344 7.

8. Leading article, "Tried twice over: It is time to scrap the double jeopardy rule", The Guardian, London, 7th march 2001.

9. From the BBC Today programme—quoted, Patrick Hennessy, "Judge attacks Hague over axing 'double jeopardy' law", The Evening Standard, London, 15th May 2000