"No Bail for Criminals", and so on

The latest volume of the Judicial Studies Journal has been published recently. I commend it heartily.

Judge David Riordan's article on the approach to, and experience of, immigrants in the criminal courts is fascinating, and I may return to it here.

However, the highlight for me is a splendid opinion piece entitled Weasel Words and Doubtful Meanings:A Study in the Language of Law “Reform” by Mr Justice Adrian Hardiman of the Supreme Court. There is so much that I believe deserves to be emphasised that one stage I was in danger of attempting to reproduce the entire article, but the following extracts will have to suffice.(Emphasis - the phrases in bold - has been added by me):

Accordingly, a state of mind grows up in which only convictions are a meaningful result of the criminal process; acquittals have therefore to be regarded as a malfunction or, at best, as meaningless.

[...]

The first is a tendency to presume that those charged with an offence are guilty of that offence. This was perfectly exemplified in a campaign slogan used in the course of the recent general election which promised “tougher bail for criminals”.

Readers may remember that this slogan featured here before . He continues:

The fact is, of course, that in our system those seeking bail are typically not criminals: they are persons resisting being imprisoned, perhaps for years, pending the resolution of the question of whether they are criminals or not. But the slogan clearly suggests, intentionally or otherwise, that the question of their guilt can be taken for granted.

[...]

Every defendant, no matter how technical the offence or how good his previous record, is treated as though he were, at least potentially, a gangland crime boss and his rights duly attenuated.

Last year, the Minister for Justice set up a committee to advise on the “rebalancing of the criminal law”. It was a remarkable feature of this committee that not a single member was a practicing criminal lawyer: none had significant experience of either the prosecution or the defence of criminal cases to conviction or acquittal. It is not necessary that such a committee be composed entirely of criminal lawyers, but it is necessary that there should be some input into a committee on the “rebalancing” of the criminal law from those who know how that law works in practise, and from both sides. Would any Minister dare to set up a committee on defamation law without media representation ? Or a committee on agriculture with no farming representation ? Or on cancer care with no oncologist ?

[...]

I suspect that he wrote this before the John Crown Affair !

Due to a combination of political and media abuse, the work of criminal lawyers, especially defenders, is caricatured and the term “criminal lawyer” has acquired a connotation close to that of “shyster”. When it is desired to praise a criminal lawyer, as in the case of the late Patrick Finnucane and Rosemary Nelson, both of whom were practising criminal lawyers, they are transmuted into “civil (or human) rights lawyers”...

Four years ago Messrs. Bush and Blair stood together outside the White House and invited acceptance based on trust of their shared view that “The people in there [Guantánamo Bay] are bad guys.” In other (Irish) words, “I know what I know”. This is another carefully crafted phrase, but it means only “I sincerely believe what I’ve been told and you should too”. “I know what I know” may be a perfectly valid justification for an executive or political action, and is often the only one which can be offered. But it has no place in the due course of law, which proceeds upon evidence and not otherwise.

I am prepared to accept that all these people are quite sincere in their views, but a law-based society requires evidence, and not merely sincerity, before someone loses his liberty, perhaps for many years. Or do we still believe that ?

Sadly, it is my observation that many do not want to think about it. As Hardiman J. reminds us, Benjamin Franklin had the words for them:

Those who give up essential liberty to purchase a little temporary security deserve neither liberty nor security.