The death of Habeas Corpus

Rookwood, Going Postal
High Court Building Buffy May, Licence CC BY-SA 2.0

Let me first fire a major pre-emptive shot across the bows of any reader who is a lawyer, judge or indeed any part of the legal system. I am not a lawyer, and apart from a very minor educational qualification covering Criminal Law, I hold no experience of the law other than being a member of a jury multiple times, and being called as a prosecution witness on a number of occasions. I do however, have a fascination concerning the process and logic surrounding the legal system, and my bookshelves are weighed down by my dusty collection of old legal tomes. To save the reader their sanity, I will not be regularly quoting legal precedent, nor will I be referring to the summing up of learned judges throughout the ages. Rather, I will attempt to put into straightforward language my deep unease of where I see the British legal system heading, and the consequences for the man on the Clapham omnibus. For this extravagance I seek the forgiveness, patience and understanding of those better qualified than myself. As a layman, I am wholly convinced that unless we have at least a basic understanding of the mechanics of justice, it is not only ourselves, but the whole of society that consequently suffers loss.

I’m not sure exactly sure when the alarm bell went off, but somewhere in my mid-twenties I realised something was fundamentally wrong with our democracy, or more accurately, the way this power was translated via executive privilege. Sure, I knew “Government” did not have my best interests at heart, nor as a relatively poor individual would I ever have a reasonable chance to personally redress any serious injustice in civil matters via the courts. At this time, there was still a strong legal aid culture, so I comforted myself in the belief that should I ever need to fight my corner inside an adversarial legal system on a criminal matter, I would have a modicum of protection. Provided I kept my side of the bargain, was a good citizen, I was content to let the establishment change the ingredients of the legal sausage on a whim. Until the Poll tax that was. Living in London at the time, I was aghast at the implications. Not owning my own property, and at the mercy of landlords who charged a small fortune for sub-standard accommodation, I was faced with an additional bill as a tenant, with no choice other than to pay up, go off grid or face imprisonment. Apart from the usual fiscal gouging at budget time, the law had been changed retrospectively, and I was faced with the bitter realisation that this was not a precedent, but the modus operandi of government. Despite manifesto promises, be they kept or broken, there was a whole swathe of hidden legislation, from pensions to criminal law, that could and would be changed from behind the scenes and well clear of public view with very little input or approval of the people.

It was allegedly Otto Von Bismark who commented “The man who wishes to keep his respect for sausages and laws should not see how either is made”. Which is why I was particularly alert to what happened when Anthony Charles Lynton Blair came to power. By the time he left office, Blair had clocked up an incredible 26,849 new laws over his entire premiership, whilst Margaret Thatcher introduced a measly total of 19,827 during her time in power [1]. Granted, a proportion of these will be European Regulations which are subsumed into UK law without the executive lifting a finger, but that is not the point here. While the volume is indeed shocking, what is more pertinent and the root of my deep unease is the tone and reach of these new laws and instruments. To the man on the Clapham omnibus, the law, if it is to be considered fair, just and applicable, has to fit within a reasonable understanding of what most would consider natural or common law. In other words, while the politicians, lawyers and barristers can argue until the end of time as to how many angels can dance on the end of a pin, you and I are generally more concerned with the broad-brush strokes, rather than the devil who clearly resides in the detail. I hope to convince you by the end of this article that such thinking is both naive and indeed personally dangerous, in this age of political duplicity and double-speak.

I was recently considering the whole concept of Habeas Corpus. Somewhere inside my nicotine and alcohol addled brain, I associated it with the phrase “Without a body there is no crime”. The legal definition is more succinct, the writ itself is a court order demanding that a public official deliver an imprisoned individual to the court and show a valid reason for that person’s detention. So in a twisted way, my pigeon Latin translation of “Produce the body”, in layman’s terms, is not that wide of the mark. However, I would be negligent in sharing with you my true mens rea (State of mind) if I were to leave the title of this piece uncorrected. The true Latin title should more accurately be “The death of Corpus Delicti”, or the legal concept that a crime must be proved to have occurred before a person can be convicted of committing that crime. Both Latin phrases are emphatic in their resolute determination, without a resounding “Guilty”, the accused should be not be restrained or denied their freedom. The pessimists amongst you will have already decided the title really should be “The death of Habeas Corpus and Corpus Delicti”. I will not raise an objection.

To you and I, our criminal courts are based on the premise that the accused is innocent until proven guilty. Should, heaven forbid, we face trial, we would expect to be tried by a jury of our peers, and most of us are quite content with that, secret family courts and star chambers being the obvious exception to the rule. However, one bone of contention is that it is the responsibility of the jury to weigh the evidence and the presiding judge to interpret the law. What happens where a defendant appears in court, and the law has removed the mens rea portion from the offence, thereby delivering a legal fait accompli that the jury cannot refute? Or in other words, what happens when the intention of the defendant is immaterial to the criminal act and a guilty verdict must be returned? Such offences are commonplace and are termed “Strict Liability” offences. These are a clear vehicle used to undermine the power of the jury in criminal prosecutions, and have serious implications for the accused especially in more serious cases such as rape or firearms offences, as the tariff (or punishment) is correspondingly severe. In such cases, the judge will go out of his way to inform the jury that it matters not one whit the intent (mens rea) of the defendant at the time, the mere fact that the “crime” (actus reas) was committed is enough to be found guilty. Hence one of the major drivers for age identification, as a shopkeeper cannot say in his defence “He looked over 18 and had a full beard”. The fact was that the person he sold the alcohol, cigarettes etc. to was under age, and there is no excuse. Period. Which is why the age limit has culturally jumped from 18 to 21 for purchasing such items, just to make sure there is no chance of legal liability. And we wonder why our teenagers are so lacking in self confidence, the right of passage we enjoyed having been kicked into the long grass. I would not be surprised if such thinking hasn’t promoted the increased use of spice and other illegal drugs – your local drug dealer isn’t exactly going to ask for age ID.

This legal shortcut might seem a practical way of speeding up the court system. No need to prove beyond reasonable doubt that the defendant intended to commit X, Y or Z. But think about it. Whereas strict liability has its place – as some would argue – in minor motoring offences in the Magistrates court, it has no place whatsoever in the Crown Court. A good example was a conviction that has conveniently fallen down the corporate media memory hole. A concerned member of the public found a gun in a park frequented by children. He didn’t have access to a telephone, so he took the gun to his local police station. He was consequently prosecuted for illegal possession of a firearm, a strict liability offence. If I remember correctly, he was given a conditional discharge (sic), but still ended up with a firearms conviction. If you repair computers, and happen to stumble across some illegal pornography, I’d be very wary of turning this into your local plod. Possession of such material is a strict liability offence as well, so anyone with a certain early Led Zeppelin LP in their collection better not broadcast that fact too loudly.

There is an argument that strict liability is a useful tool when it comes to commercial regulation, or in civil cases rather than criminal. That would seem sensible. By introducing civil legal strategy and tactics into the criminal courts, a clear act of judicial vandalism has taken place. To make matters worse, there is no clear definition of strict liability offences unless specifically termed within the  act by Parliament. This decision has been left very much to the courts to decide. Thankfully, there is some sense here, and Lord Scarman confirmed that there is always a presumption in law that mens rea is required before a person can be held guilty of a criminal offence [2]. Unfortunately, such foundational decisions are the remit of the appeals court, and not much help to a defendant whose lawyer says “You are best advised to plead guilty”.

Historic and vital civil rights have now disappeared wholesale since the introduction of the Poll tax, the right to silence, the assumption of innocence until proven guilty being just two of many. Rather than refining the quality of law since the Thatcher revolution, successive governments have chosen to  pile law upon law until it becomes a statistical certainty we will go to our grave as a lawbreaker, mens rea or not. This is not the country I was born in, but until something happens to bring wholesale reform from Parliament downwards, it will certainly be the country I will die in.

As a final ironic observation, the concept of the strict liability offence does not currently exist under German legislation. It did however exist, during the German Reich from 1871 to 1945 [3].

Who won the war again?



© Rookwood 2019

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