Done and seen to be done

Yesterday was a bad day for criminal justice procedures, and not just in South Africa. Here in this country a prominent trial of the ex-wife of an ex-cabinet minister who has already been convicted of perverting the course of justice by getting his then wife to accept responsibility for a speeding fine he had in fact incurred himself has had to be abandonned and a retrial ordered.

After many hours of fruitless deliberation the jury sent the judge a list of ten questions which the learned judge found extraordinary and unprecedented, and revealing "absolutely fundamental deficits in understanding" of their role in the legal process.

The jury has been dismissed under a cloud, seemingly labelled as both irresponsible and stupid.

Not everyone thinks all of the questions were stupid, although perhaps those that were not should have been asked earlier, but there seems little sympathy with the request that the judge define 'beyond reasonable doubt', which, as we all know, is the corner-stone of our criminal justice system. No-one should be convicted unless it has been proved that they are guilty 'beyond reasonable doubt'.

It is reported that the judge responded that the words were in normal usage, which is perhaps all he could say, but he, unwisely in my opinion, although I belive he was merely complying with the current standard of legal procedure, went on to say it simply meant they had to be 'sure' of their conclusion. What is 'sure' in the mind of the average person?

To me the concept of 'beyond reasonable doubt' seems something of a fraud, or at least a fudge. It is patently clear that many people are convicted, and their convictions upheld by learned judges (not jurors at that stage) at appeal, when many 'reasonable' people doubt their guilt. I think it is even right to say that judges themselves may disagree.

Indeed, to have a system, as we do, and as was intended to operate in this case, when a jury verdict of guilty can be accepted with a minority of dissenting jury members, seems to me to be fundamentally incompatible with the idea that conviction depends on proving guilt 'beyond reasonable doubt' - or else alarmingly incompatible with the conventional value ascribed to jurors.

Yet our legal process is a philosophical and historical patchwork rather than something bound to clear and over-riding principle. In part juries might seem to have a residual god-like role: they are not required to have legal knowledge and until recently profesional lawyers were formally excluded; they are not required to give reasons for, or to justify, their decisions, although of course their decisions are open to later legal challenge, now on both sides, and it is even possible now for someone, in certain circumstances, to be tried twice for the same offence; their deliberations must still remain secret. In earlier centuries juries were in fact painfully aware that they were usurping God's role of judgement. Vengence is mine, saith the Lord, I will repay. They feared they might themselves attract God's vengence for judging their fellows, especially if they convicted their fellow men. Many still believed literally in an impending, and far more serious, day of judgement. Trial by jury replaced earlier, more 'primitive', forms of trial - trial by ordeal for example - which were at the time seen as mechanisms by which the judgement of God, rather than that of man, was revealed. The reluctance of juries to exercise judgement and to convict their fellows, their peers, was the reason for the later introduction of the injunction that they should convict if persuaded of the defendant's guilt 'beyond reasonable doubt'. It was intended to make conviction easier, not to constrain it and was a further step away from the religious notion of justice. The popular value now placed in the nostrum is in conflict both with historical development and with current jurisprudal thinking, but that is not to say that it has any logical or linguistic clarity.

A new amendment

Aaron Swartz, 8 November 1986 - 11 January 2013

Whatever else is true, Swartz was destroyed by a "justice" system that fully protects the most egregious criminals as long as they are members of or useful to the nation's most powerful factions, but punishes with incomparable mercilessness and harshness those who lack power and, most of all, those who challenge power.

Corrections and clarifications - maybe

no individual - certainly not those in any senior position - is held to serious account in a way that discomforts them

Today it is reported that two former employees of UBS have been charged in the US over Libor manipulation.

Forgive and remember

Professor Stephen Hawkin and ten other eminent personages, many I expect replete with honours themslves, urge the government formally to pardon (I suppose formally it would be done in the name of the Queen) the late Alan Turing, the brilliant mathematician, Second World War code-breaker, and 'father of the modern computer', who was convicted of 'gross indecency' (code for practising homosexuality) a few years after the end of the war, suffered hormone therapy intended to 'correct' his sexuality and committed suicide.

Much as one finds Turing's treatment and suffering appalling, much as one recognises his brilliance and service to his country and fellow citizens, much as one recognises that, ahd he been living now, he would have received official honours and perhaps private wealth, rather than prosecution and forcible medical treatment, one wonders. Would this new measure be a symbol or an exception? Is it intended that all who were in the past properly, according to the laws and procedures of the time, convicted for things that are no longer offences or generally even regarded as morally reprehensible should be pardoned? Perhaps such an act of parliament could be framed, but I doubt there would be much public or political interest in it. Lord Grade, who drated the letter to the Daily Telegraph, has suggested a more general extension, but only apparently to those convicted of homosexual offences. Yet it is the individual on whom the focus now rests. Is this, if it succeeds, intended to be a measure in lieu, to be a symbol of such general pardon? Or is such treatment to be a posthumous honour extended only to deceased unfortunates who clear some hurdle of fame, celebrity or achievement? 

We have a surfeit of honours already and their credit is not improved by elaboration. (Recently one or two have even had to be vomitted up in a fit of public indigestion.) Why should the repute, the peace or the honour of the late Alan Turing depend upon state recognition? A few years ago our then prime minister, Gordon Brown, said he was 'proud' to extend a personal 'apology' to Turing - apologies (at least for misdeeds sufficiently remote in the past) being more in political vogue than pardons. It seems to me there may have been a little moral confusion there - should one not rather than being proud to offer the apology (for what others did) confess to shame for having to say it? I suppose pride and shame are actually inseparable and the failure to recognise it is what is wrong with our 'honours system'.

Does anybody doubt that the state did much in the past (not to mention the present) of which any honourable person would now be ashamed?

Possession is nine points of the law

The UK Director of Public Prosecutions has declined to prosecute two terror suspects, Babar Ahmad and Syed Talha Ahsan, who, along with the more celebrated 'radical Muslim cleric', Abu Hamza, are shortly expected to be extradited to the United States.

The offences of which they are accused, in most normal senses of the phrase, 'took place' in the United Kingdom but they are connected with a website which was hosted in the United States. Babar Ahmad has been detained without charge or trial in this country since 2004 and the refusal of the authorities to prosecute Abu Hamza in this country has for many years puzzled people from the Queen downwards.

The DPP has now stated 'I have refused to give my consent to Mr [Karl] Watkin to bring a private prosecution against Mr Ahmad and Mr Ahsan for offences under the Terrorism Act 2000. The underlying evidence in support of these alleged offences is in the possession of the USA. The material provided to me in support of the proposed private prosecution has been carefully considered by a specialist lawyer in the CPS special crime and counter-terrorism division.'

Evidence seized by the Metropolitan Police in 2003 was passed, for no clear reason, by them to the United States Authorities, but now, it seems, possession of persons is more easily transferred between states (as we have seen in other contexts since the beginning of the War on Terror, or the 'Long War' as others like to call it) than is possession of evidence, and the United Kingdom authorities would like to see persons removed to the United States. The fastidious UK is these days often keen to see unsavoury characters shipped off to other jurisdictions, even some equally unsavoury, to meet their legal or illegal fates.

Mr Karl Watkin (Member of the British Empire), who holds to the Quixotic belief that British people charged with offences conducted in British jurisdiction should be prosecuted in British courts, is separately seeking permission from magistrates to bring a private prosecution that does not require the DPP's consent. Meanwhile, the most senior British judge recently expressed his anger that cases such as this should have dragged on for so many years. How things have changed since Jarndyce and Jarndyce. Why do not accused people realise that it is 'in nobody's interests' for them to pursue every last avenue avail able to them under the law? Clearly the law should change and doubtless it soon will.

Nothing to be done

His extradition has highlighted problems with the treaty between the UK and the United States that are not "readily curable", the attorney general Dominic Grieve said on Tuesday.

Grieve said Britons were left uneasy when faced with the seemingly harsh and disproportionate sentences in the US justice system. "I think there's a lack of public confidence in the US justice system, which is a rather wider issue and more complicated than the minutiae of the treaty agreement," he said.

"There are perceptions in this country that the US criminal justice system can be harsh, its penal policy can be harsh, and its sentencing policy can appear disproportionate by European and British standards. There are aspects of it therefore which tend to make people uncertain and uneasy, and I'm not sure that that's readily curable."

Grieve admitted the UK's extradition laws were not ideal, but said: "In a world where we wish to see crime successfully combated, having a system by which to facilitate transfer to countries which meet the necessary criteria of fairness so as to curb crime is absolutely indispensable." He added: "Perhaps we are where we are today because we rushed things in 2003."

Beyond reasonable doubt?

I have long thought that in this country, if you have the misfortune to be in the wrong place at the wrong time you can get yourself put into prison, perhaps for a large number of years, on the flimsiest of evidence, supposition or prejudice (the latter even in the minds of the judiciary).

(Messrs Jekyll and Hyde gave some attention to the meaning of that word 'reasonable', as in 'beyond reasonable doubt' - so strangely unrelated to 'beyond reason'.)

For the near-comfortable middle classes, such as myself, that is a disaster that may only descend out of the blue in the most exceptional cases, but for large minority sections of our population being in the wrong place at the wrong time is a near permanent condition.

The fire next time

North London, 6 August 2011

Is this simply explained as a reaction to a fatal police shooting and alleged cover-up?

A local resident reported, "The police seem very frightened at the moment, people are unstoppable. They've broken into various businesses, jewellery shops, bookies, it's absolutely crazy. They've beaten up a man for talking to the fire brigade."

People do not behave like this unless they are seriously alienated from authority and wider society.

James Baldwin’s book was published in 1963 and was about the position of black Americans, but its observations apply to many alienated communities within western societies still.

“…the white man’s profound desire not to be judged by those who are not white, not to be seen as he is.”

“We are controlled by our confusion, far more than we know, and the American dream has therefore become something much more closely resembling a nightmare, on the private, domestic, and international levels. Privately, we cannot stand our lives and dare not examine them; domestically, we take no responsibility for (and no pride in) what goes on in our country; and, internationally for many millions of people, we are an unmitigated disaster.”

“How can one respect, let alone adopt, the values of a people who do not, on any level whatever, live the way they say they do, or the way they say they should? “

“The Negroes of this country may never be able to rise to power, but they are very well placed indeed to precipitate chaos and bring down the curtain on the American dream.”

“I know that what I'm asking is impossible. But in our time, as in every time, the impossible is the least that one can demand—and one is, after all, emboldened by the spectacle of human history in general, and American Negro history in particular, for it testifies to nothing less than the perpetual achievement of the impossible.”

Baldwin’s title comes from the negro spiritual, ‘Mary, don’t you weep’, "God gave Noah the rainbow sign, no more water the fire next time."