Free Life 20, August 1994, Reflections on the Criminal Justice and Public Order Bill, by Sean Gabb

From Free Life, Issue 20, November 1994
ISSN: 0260 5112

Reflections on the Criminal Justice and Public Order Bill
Anthony Furlong and Edward Hume (Sean Gabb)

Introduction

When this Bill was first published earlier in the year, we read it in a mood of astonished horror. If ever passed, we assured each other, it would mark a significant step from the remains of liberty to a police state. It would be the most oppressive Act of the most oppressive Government this country has known since 1688.

We now have before us the Bill as amended on Report. Published this 12th July [1994 – Ed.], it is the version that will go for Royal Assent. It has in some degree been softened during its passage. Its bulk has even been partly offset by the welcome, if timid, lowering of the age of consent for homosexuals, from 21 to 18. Nevertheless, for all the changes great and small that have been made since its first publication, the Bill remains as astonishingly horrible now as it was last January.

At 211 pages inclusive of Schedules, the Bill contains so much objectionable matter that we cannot hope to cover all of it in this short article. We will instead concentrate on three particularly ominous measures. These are: the abolition of the right to silence, the perversion of due process in terrorism cases, and criminalising the possession of pornography.

One: The Abolition of the Right to Silence

This right comprises the following:

1. At the moment of arrest, a suspect must be cautioned by the Police as follows: “You have the right to remain silent, but anything you do say will be taken down and may be used in evidence against you”. This caution must be repeated in similar form at the police station every time he is questioned. If he decides to remain silent under questioning, no compulsion may be used against him. Nor may his having remained silent be later revealed in court.

2. This right extends from the police station into court. An accused person cannot be compelled to give evidence, or to submit to any cross-examination. If he decides to fall or throughout to remain silent, the prosecution is allowed to make no comment whatever. 1 The Judge is allowed to comment, but if he does, he must remind the Jury that failure to testify cannot be regarded as evidence of guilt.2

Because in many cases evidence of guilt is something that emerges under police questioning, this right has long been unpopular among those who claim to stand for “law and order”. It has been called an accidental right. Much has been said of its allegedly recent origin, and of how unconnected it is to the general body of legal protections.

Much has also been said about its abuse by hardened criminals. We are told that, disturbingly often, the Police will arrest someone who is manifestly guilty, but who escapes conviction because he refuses to answer questions in the police station, and only speaks out after he and his lawyers have made up enough lies to convince a Jury.

And so, in the Bill, the right is effectively abolished. Clause 34 states:

(1) Where in any proceedings against a person for an offence, evidence is given that the accused –

(a) at any time before he was charged for the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on for his defence in those proceedings;

or

(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed…

(2)…

(d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper.

Clauses 36 and 37 allow the same inference to be drawn from failure to explain any objects found on a suspect’s person at the time of arrest, and to explain why he was in any place when arrested. Clause 35 allows the Court or Jury to draw inferences from an accused person’s refusal to testify or to answer questions.

We will note that these Clauses have been softened since their first publication. In their original version, the Judge was even to act as inquisitor during a trial, calling on a silent accused to speak in his own defence. It says much about our democracy that it was the Judges in the House of Lords who forced this to be taken out.

The claims made to justify this part of the Bill are so much nonsense. There is nothing accidental or contingent about the right to silence. It follows naturally from the privilege against self-incrimination, which is perhaps the most distinctive feature of English criminal law. In our own law, the privilege is so old that it vanishes into the mists of time. In the United States and in every civilised Commonwealth country, it is an entrenched constitutional right.3 Its justification is that it compels the authorities to go out and look for objective evidence of guilt, and not rely on tricked confessions of guilt.

Here, it is worth pointing out that there is no evidence that the right has been abused in the manner claimed. It is, however, common knowledge that confessions unsupported by objective evidence are unreliable. The past generation has seen a whole series of cases, beginning with Confait, in which the use of unsupported confessions has resulted in gross miscarriages of justice. If there is any case for amending the right to silence, it is for expanding its scope, by disallowing the use of unsupported confessions.

It is no argument to say against this that the right has not been abolished, but instead only that in future the Court or Jury may draw inferences from its exercise. Strictly speaking, this is so. According to Clause 35(3):

This section does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure to do so.

But, in all but the written word, the right has been abolished. It is the refuge of any suspect who fears that he may be pressed into making ill-considered statements after arrest, or in response to aggressive questioning. The knowledge that a use of the right may be regarded as evidence of guilt is as near its abolition as may be made without the positive legalising of torture.

Two: The Perversion of Due Process in Terrorism Cases

Clause 82 of the Bill amends Part IVA of the Prevention of Terrorism (Temporary Provisions) Act 1989. The sections relevant to our present investigation read as follows:

16A. – (1) A person is guilty of an offence if he has any article in his possession in circumstances giving rise to a reasonable suspicion that the article is in his possession for a purpose connected with the commission, preparation or instigation of acts of terrorism to which this section applies….

(3) It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence the article in question was not in his possession for such a purpose as is mentioned in subsection (1) above.

The maximum penalty for this offence is imprisonment for ten years or a fine or both.

Now, again, the scope of this Clause has been greatly limited since we first read it last January. The limitation is contained in 16A(2):

The acts of terrorism to which this section applies are –

(a) acts of terrorism connected with the affairs of Northern Ireland; and

(b) acts of terrorism of any other description except acts connected solely with the affairs of the United Kingdom or any part of the United Kingdom other than Northern Ireland.

However, as with the abolition of the right to silence – made for Ulster in 1988 – oppressive laws made for one part of the United Kingdom have a habit of being extended to the other parts. We are glad that this particular law is not at least for now intended for Great Britain. But, whether or not it is ever extended, we find it perhaps the worst Clause in the entire Bill. Our objection is on two grounds:

First, it makes a crime of being merely suspected. Let us suppose that our Editor – who, for all his unionist sympathies and lack of specific interest in Ulster, has an Irish Catholic name – should be sent a review copy of The Poor Man’s James Bond by Kurt Saxon.4 Now, this is a book that describes, among much else, how to make bombs and other weapons. It is clearly an article within the terms of the Clause. Let us suppose that the book is found in Mr Gabb’s possession by a Policeman. Here is what seems to us suspicion that it is “connected with the commission, preparation or instigation of acts of terrorism” in Ulster. There is no need to prove that he has the smallest criminal intent. The fact that he may be reasonably suspected is be made a crime in itself.

Of course, half an hour in a police station will be enough for Mr Gabb to clear himself of suspicion. But here is the second ground of our objection: that the burden of proof has been reversed. In this case, the presumption of innocence does not apply; and, if he is for whatever reason unable or disinclined to prove that “at the time of the alleged offence the article in question was not in his possession for such a purpose as is mentioned in subsection (1) above”, then he may find himself in very serious trouble.

This is not an isolated instance of the perversion of due process. It is, sadly, becoming a normal mode of legislating for Ulster. For example, Section 9 of the 1989 Act makes it an offence to handle money for any person, “knowing or having reasonable cause to suspect that it may be used by that person for the purposes of terrorism”. This offence carries an unlimited fine or a sentence of up to fourteen years in prison. We ask – What do the words “reasonable cause to suspect” do except make a crime of ignorance? If an English bank clerk quietly takes in money for an American group called Kill A Brit For Ireland Inc., maybe he ought to be accused of assisting in the commission of a crime. Caught taking in money for the Patrick Sarsfield Foundation, he is in serious trouble unless he can prove his ignorance of Irish history.

Perhaps the courts can be trusted to throw out frivolous or vexatious charges. But this is not the point. It is our repeated experience that many laws allow the authorities to harass or destroy people without going to the trouble of bringing them into court. It will be remembered how the search and seizure powers of the Customs Consolidation Act 1876 were used against Gay’s the Word bookshop in 1984. Property was seized. Charges were laid. Although the case was dropped before it could come into court, the bookshop was almost driven out of business by the defence and associated costs of the action. Less famously, the journalist Al Baron received similar attention last year, when his computer and papers were seized and held for nine months until the Crown Prosecution Service dropped the charges for lack of any answerable case against him.5

We will say emphatically, that we abhor the terrorist violence connected with Ulster, and desire that the firmest action be taken against the Republican and Loyalist terrorists – but only so far as is consistent with a maintained rule of law. The present Clause does not meet this requirement. It is simply another set of excuses for state harassment.

Three: Criminalising the Possession of Pornography

Section 1 of the Protection Act 1978 reads:

It is an offence for a person –

(a) to take, or permit to be taken, any indecent photograph of a child (meaning in this Act a person under the age of 16); or

(b) to distribute or show such indecent photographs; or

(c) to have in his possession such indecent photographs, with a view to their being distributed or shown by himself or others; or

(d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs, or intends to do so.

Section 160(1) of the Criminal Justice Act 1988 amends this Section by adding that

It is an offence for a person to have any indecent photograph of a child (meaning in this section a person under the age of 16) in his possession.

Clause 84(2) of the present Bill further amends the 1978 Act as follows:

In section 1 (which penalises the taking and indecent photographs of children and related acts) –

(a) in paragraph (a) of subsection (1) –

(i) after the word “taken” there shall be inserted the words “or to make”, and the words following “child” shall be omitted;

(ii) after the word “photograph” there shall be inserted the words “or pseudo- photograph….

The wording of the other paragraphs of the 1978 and 1988 Acts is similarly changed to reflect the creation of the new offence.

Section 7(5) of the 1978 Act is amended to read as follows:

(6) “Child”, subject to subsection (8), means a person under the age of 16.

(7) “Pseudo-photograph” means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph.

(8) If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.

In this Clause, the laws of Scotland and Ulster are also amended to the same effect.

Those of our readers who have read the lengthy quotations above will have noticed the creation of three offences.

The first, created in 1978, is, in our view, entirely acceptable. Children enjoy, and always have enjoyed, a separate legal status under the laws of every civilised country. This is on account of physical and intellectual immaturities that we do not need here to describe. Children are not allowed to do many things that either are or ought to be permissible for adults. Being induced to pose for “indecent” photographs is one of these things.

Prohibiting the distribution of such photographs we also believe to be justified. What photographs people look at is, of course, their business – but only so long as the models cannot be said to be harmed by being identifiable, which is plainly the case with children

It may be argued against us that the 1978 law was made in response to a moral panic over the alleged activities of the Paedophile Information Exchange, and that it only criminalises acts that were already criminal under the Obscene Publications Act 1959. This is true. But, since we believe that the 1959 Act should be repealed, the 1978 Act is only what we should like to see preserved from the general repeal.

The 1988 Act, however, goes further. By criminalising the possession of such photographs, it creates an entirely new and undesirable offence. We will say that what someone has for his own use – however it got there – is not a proper subject for legal control. As said, child models may be harmed simply by being looked at. But the risk of any potential harm here is outweighed in our view by the actual harm done to adults. This harm is the wide power given to the authorities of supervision over our libraries. This establishes a principle that we are quite certain will be sooner or later be applied for further supervisions that will be made for what we consider to be trifling or even bad ends.

Not only does the present Clause go still further, it also loses sight of the what we consider to be the justifiable ends of the 1978 Act, which is the protection of children. A pseudo- photograph need not involve the use of any child in its creation. It may be generated wholly from an artist’s imagination, or from photographs of adults.

Of course, there are people who claim that the use of children as models for such photographs is not the only evil involved. Further evils are said to be the encouraging of sexual violence against other children, or the private corruption of adults who enjoy looking at such photographs, or both. We will not argue this point. We will say only that the private effect on adults of looking at any pornography is their business alone; and we have yet to see any evidence whatever that the availability of child pornography leads automatically to the committing of assaults on children. It may suggest the pleasurablity of assaults – just as The Bible may have suggested the murder of prostitutes to Peter Sutcliffe, or as the works of Karl Marx and Adolf Hitler certainly encouraged mass-murder and the enslavement of millions. But here, as with any political or religious text, the answer is not to suppress the prompting text, but to punish the prompted person for his actions.

The natural end of the present Clause is not the protection of children, but the criminalising of masturbation – and not only of masturbation over pictures of children. It will be seen that a pseudo-photograph is defined to include one “where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult”. Much pornography now fully legal even in this country – which has by far the most restrictive laws in Europe – includes photographs of models dressed in white ankle socks or school uniforms, or with shaven pubic hair. Is all this now to be made illegal? God help us!

Conclusion

As said, the above does not by any means exhaust our objections to the Bill. There are hundreds of other objections that we could make. We can only ask how much of this will be brought into effect, and how much will be struck down by the European Court? We will also ask – and invite our readers also to ask – whatever next? For there are worse proposals floating around – enough to keep Parliament busy well into the next century. Is this Bill to be the last and heaviest belch of authoritarianism? Or has the main course yet to begin?

We wish that we could say otherwise, but we do very much suspect that the latter is the case.

Notes

1. See the Criminal Evidence Act 1898 s.1(b):

The failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution.

2. On this point, see the following obiter guidance given by Lord Chief Justice Parker:

“…the accepted form of comment is to inform the jury that, of course, he [the accused] is not bound to give evidence, that he can sit back and see if the prosecution have proved their case, and that while the jury have been deprived of the opportunity of hearing his story tested in cross- examination, the one thing they must not do is to assume that he is guilty because he has not gone into the witness box” (R v Bathurst [1968] 2 Queens Bench 99, pp. 107-08).

3. See, for example, the Fifth Amendment to the American Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself [our italics], nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

4. This book is published by Loompanics Unlimited, an advertisement for which appears elsewhere in this journal. It is available for $17 plus 12 per cent postage and handling charge. As ever, this journal’s policy of not breaking or advocating any breach of the law compels us to advise those Ulster residents who may be interested in this book to buy it before the Bill passes into law.

5. For details, see Chris R. Tame and Sean Gabb, “Al Baron and Freedom of Speech: An Argument in Two Parts”, Free Life No. 19, November 1993.

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