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March 30, 2005

Civil liberties cannot be defended selectively

Posted by Joyce Lee Malcolm

The recent Prevention of Terrorism Bill, now passed into law, caused a parliamentary and media furore. Joyce Lee Malcolm - Professor of History at Bentley College and author of Guns and Violence: The English Experience - asks where were those in the media and in parliament who so vocally opposed this law when other civil liberties were being curtailed? Why did they not oppose the removal of the English Bill of Rights guarantee that subjects "may have arms for their defence, suitable to their condition and as allowed by law"? Where were they when the right to trial by jury was curtailed? Where were they when the laws of evidence were changed to make it easier to obtain convictions or the principle of double jeopardy was undermined?

Just when it seemed that government removal of another civil liberty would be greeted with the usual collective shrug, the Prevention of Terrorism Bill provoked a firestorm of fury and dismay. Where can liberty turn? Simon Jenkins pleaded in The Times, (February 23, 2005). Where indeed! His answer was the House of Lords. The Lords rose nobly to the challenge, and managed to get some amendments to the bill, but that House was long ago stripped by a condescending Commons and an indifferent public of effective power to protect individual liberty, or anything else. Jenkins had prefaced his appeal to the Lords with Magna Carta's famous guarantee:

No Freeman shall be arrested or detained in prison or deprived of his freehold or outlawed or exiled or in any way molested…except by the lawful judgment of his peers.
This sudden fondness for juries from a man who was arguing, in the same paper, barely a month earlier, Juries: the evidence is clear…dump them , (January 27, 2005) is indicative of a piecemeal approach to the defence of British liberties that has permitted a growing number of protections to be jettisoned, leaving the newly concerned public wondering, "Where can liberty turn?"

Since World War I the British public has been complacent as both Conservative and Labour governments whittled away at basic rights, nearly always, as with the Prevention of Terrorism Act, in the name of public safety. In the name of public safety governments narrowed to a nullity the English Bill of Rights guarantee that subjects:

may have arms for their defence, suitable to their condition and as allowed by law.
Virtually the only arms for defence now "allowed by law" whatever the individual's condition, are the arms sprouting from his or her shoulders. And these must not be used to seriously harm an assailant or burglar under pain of prosecution. Although William Blackstone regarded the right of self-defence as the "primary law of nature", so basic it could not be taken away by the law of society, it has been so circumscribed it is often branded vigilantism.

Like dominoes, the loss of one basic right has toppled others. To facilitate public disarmament one inconvenient right after another had been discarded, in the words of one American judge, "like a crumpled gum wrapper". The 1953 Prevention of Crime Act gave police broad power to stop and search whoever they liked. The same act also overturned that keystone of common law, the presumption of innocence, making anyone found with an article the police regard as offensive, guilty until proven innocent. All in the name of public safety. In the name of public safety Britons are now watched by more surveillance cameras than any people on earth.

Although these policies have markedly failed to reduce crime, the government refuses to reinstate the right to arms for protection, and recently rejected a plea to allow greater latitude for defence of the home. Instead, its strategy is to reduce crime by successfully convicting more of those few offenders the police manage to arrest. If, in the process, yet more individual rights must be sacrificed, than so be it. At the end of its 2003 session, Parliament repealed the 800-year old guarantee against double jeopardy. Now anyone acquitted of a serious crime can be retried if "new and compelling evidence" is brought forward. Who is to decide what evidence is "new and compelling"? Why, England's Director of Public Prosecutions. Parliament regarded this technique as so promising that it went beyond the original Law Commission recommendation, and tinkered with the definition of "new" to make that burden easier to meet. Lord Neill pointed out at the time that the test for "new" in these criminal cases will be lower than:

is used habitually in civil cases. In a civil case, one would have to show that the new evidence was not reasonably available on the previous occasion. There is no such requirement here.

So excited was Parliament by the seeming benefits to be reaped by chucking the ancient prohibition, that it extended the repeal of double jeopardy beyond the Law Commission's suggestion of murder cases, to cases of rape, manslaughter, kidnapping, drug-trafficking and some 20 other serious crimes. For good measure it also made the new act retroactive. Henceforth, no one who has been, or will be, tried and acquitted of a serious crime can feel confident he will not be tried again, and again. Lord Neill found it "astonishing" none of the Lords had tried to strike the repeal of double jeopardy from the Criminal Justice Bill. The attorney general conceded the new law would uproot an ancient right but pointed out:

[That] does not necessarily mean that it is right for all time. I recognize that the provision carries a price, but it is a price worth paying, because of the justice that it will bring about.

In its determination to bring about justice, i.e. get more convictions, the government has made the prosecutor's chore still easier by overturning other time-honoured protections. Prosecutors will now be permitted to use hearsay evidence — goodbye to confronting witnesses — a defendant's prior record can be introduced, and since juries might feel intimidated or sympathetic, the number of jury trials is to be reduced. The Conservative opposition apparently felt it inexpedient to oppose these popular measures.

And so now it is expedient for the government to place suspected terrorists under house arrest and abandon habeas corpus. And suddenly the public is alarmed. All those outraged by the extraordinary new powers in the Prevention of Terrorism Act would do well to consider the comments of Alex Kozinski, a Romanian refugee and American Federal Court of Appeals Judge for the Ninth Circuit (California). In an opinion deploring his colleagues' casual dismissal of the controversial Second Amendment guarantee of an individual right "to keep and bear arms", Kozinski pointed out:

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope.

For decades British governments, with public acquiescence, have taken a statist approach. But there is hope. The people are beginning to realize, as Thomas Jefferson predicted, that:

those who would trade liberty for a small security will have neither.
And liberty will have a place to turn. The House of Lords has been enfeebled but a Supreme Court will be created. Its duty is to defend the rights of the people, even against the depredations of "the democractic branch". This new Court must be encouraged to take up that task, and to ensure that the British constitution, written and unwritten, is preserved intact, as a priceless gift from the past to the future.

Joyce Lee Malcolm is Professor of History at Bentley College and author of Guns and Violence: The English Experience.


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This is a particularly apposite article in the light of the Linda Walker case, the teacher who was yesterday given a six months sentence for defending her property from a bunch of yobs. I did not here much of a defence of this woman, driven to take action against a bunch of yobs who were terrorising her and her family.
Where is the Simon Jenkins column defending her? And whatr does this say about the government's claim that there is a right of self-defence in the UK?
Link: www.guardian.co.uk/uk_news/story/0,,1447857,00.html

Posted by: James at March 30, 2005 02:14 PM
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I hope that the author is correct, but I tend to suspect that a modern British supreme court will be packed with modern Britons and so they will focus on modern British rights such as the right to popular music, etc.

Nine years ago, returned to the US after a decade, I ran across the American civil libertarian and journalist Nat Hentoff and posited a theory. I said that nothing thrills a Republican more than the thought of extra-judicial beatings, ideally with the victim a member of a racial minority. Similarly, nothing raises the heart rate of a Democrat more than assigning a government official to oversee every tiny aspect of each person's life. Yet these two fetishes are not mutually contradictory as people tend to suppose, and the parties could accomodate one another with frilly-knickered fascism. Mr Hentoff smiled ruefully and said: 'that's what keeps me awake at night.' It took less than nine years to arrive.

Posted by: s j masty at March 31, 2005 01:00 PM
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Speaking of changing the laws, the law apparently now sees an air pistol or rifle as a "firearm." Is a bow and arrow a "firearm," too? (Guardian article linked to in previous comment)

Posted by: anonymous coward at March 31, 2005 09:01 PM
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Damn it is depressing the way things are going. People should be rioting in the streets rather than submit to some of this yet I guess the endless diet of 'reality' TV and pop idol has just rotted the British psyche. Keep up the great work!

Posted by: snide at April 1, 2005 07:39 AM
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Overall, great piece. However, I'm quite sure Ben Franklin said the ending quote, not Jefferson. In any case, a more substantial criticism is this: the Supreme Court is a terrible idea. Yes, the current system is in bad shape, but only because the Commons (in particular the executive) have relentlessly abused their power. But the organically-developed, reasoned Law Lords continue to function well. A Supreme Court, on the other hand, would be a politicised creation, an artificial one, one stacked with elitist-minded political appointees, one that would damage Parliamentary supremacy while achieving few positive results. It would simply end up arrogating power to itself as its equivalents in the United States and Canada are doing and its new sister court in New Zealand will doubtless start doing. So in conclusion, I prefer to work within the current system and infuse within it a spirit of moderation, rather than craft a new institution out of thin air that we simply can't know how it will behave once left to its own devices.

Posted by: Chris at April 3, 2005 10:41 AM
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I believe that Prof. Malcolm is correct in attributing her quote to Jefferson: "those who would trade liberty for a small security will have neither."
Benjamin Franklin said something similar, but not the same:
"People who are willing to sacrifice freedom in exchange for security will receive neither."

Posted by: John at April 3, 2005 08:08 PM
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