Mama, we're all guilty now
Patrick West on the end of the presumption of innocence
In its attempts to eradicate prejudice and crime in Britain, Tony Blair's government has given little quarter to racists, sexists, psychopaths, hooligans and paedophiles. Yet in its approach to these abstract groups, New Labour has employed methods of a distinctive Talibanesque slant, whereby justice must be seen to be performed, whatever the cost. As a consequence, one of the fundamental tenets of English law - the assumption that one is innocent until proven guilty - is slowly being eroded.
This trend was of course pioneered by the last Conservative government which, in its Criminal Justice and Public Order Act of 1994, removed a suspect's absolute right to silence. Yet under Labour it has enjoyed unprecedented renewal.
It was home secretary Jack Straw's July proposals to incarcerate - indefinitely - those at 'serious risk to the public' that raised the eyebrows of many. Here he forwarded the motion to lock up people, not who have committed a crime, but who might commit a crime. Although Straw stressed that this would only affect a reputed 500 dangerous psychopaths, it is a mighty Rubicon crossed. Yet this Rubicon is being crossed on many bridges.
The Macpherson inquiry in the wake of the Stephen Lawrence murder recommended 'empowering the Court of Appeal to permit a further prosecution after an acquittal in cases where "fresh and viable" evidence is presented'. In other words, you could be tried twice for the same offence. The Law Commission's report of October endorsed such a proposal, asserting that 'the rule against double jeopardy should be subject to an exception for certain areas where new evidence is discovered after an acquittal'. The prohibition on double jeopardy is a central tenet of English law. It too rests on the premise that the law is biased towards the accused. The removal of the double jeopardy prohibition would lead to a greater number of wrongful convictions of all citizens, black and white.
The presumption of guilt is also making inroads in the workplace, where the Commission for Racial Equality (CRE) wants employers to have to prove that they are not guilty of racism, rather than denying they have been so. With the new clause of 'unwitting' racism introduced by Macpherson, it will be markedly easier for the government to make such a shift in the law. We can only wait until Jack Straw's autumn response to the Queen's speech to see if he has taken the CRE up on this suggestion.
In tandem, the presumption of guilt has seeped through into the field of sex, when in July the Better Regulation Taskforce recommended to the government that employers be forced to prove they offered pay and perks to male employers without discriminating against female staff. Coincidentally, that month it was disclosed that a 165 percent rise in reported rape over 10 years has been accompanied by a fall in conviction rates to below 10 percent. Rather than sensibly asking whether such an astronomical rise represents a paradigm shift in women's perception of rape, the Something Must Be Done brigade urged that it be made easier to convict those suspected of rape. As a result, in August a proposal put forward by a Home Office working party (established by Straw) mooted that alleged rapists in court face the prospect of having to prove there was consent, rather than deny there was not.
Paedophilia, like rape, is one of those crimes we abhor, yet as with the latter, hysteria is a poor substitute for reasoned assessment. At present there is a distasteful little thing called List 99, operated by the Department of Education, which keeps a list of 'known' paedophiles in the teaching profession. Those appearing on the list are banned for life from any job involving the care of children; however, it takes little more than one unsubstantiated accusation by a single employer - that is, hearsay - for somebody to get on this register. The Protection of Children Act 1999 has now made it mandatory for any employer to consult this list.
When not automatically treating adults as convicts, New Labour seeks to turn children into criminals. A dusk-till-dawn curfew for children under 16 in Hamilton proved so successful that the government wants to extend it elsewhere in the country. Under the 1998 Crime and Disorder Act, curfews can be imposed on children under 10, even if they have committed no crime. And as we saw in Liverpool recently, Jack Straw's 'antisocial' behaviour orders are now being enforced, whereby the police can apply to a magistrates court for an order against anybody they deem to be causing 'harassment, alarm or distress' to somebody else, or whom they believe is 'likely' to do so.
There are many other spheres where the presumption of innocence is being challenged. In May, plans to allow magistrates to ban unconvicted football hooligans from travelling abroad were dropped from a government-supported bill. Yet Straw remains unperturbed. The same month he suggested that a defendant's right to trial by jury should be scrapped in some circumstances, and elsewhere, last year announced measures to seize assets of people suspected, but not convicted, of profiting from crime.
The premise of innocent until proven guilty is an invaluable tool against the punishment of the innocent. We have seen how the urge to punish, borne by frenzied Something Must Be Done populism, can be calamitous. In the 1970s, an English woman and nine Irish men were wrongfully imprisoned for two IRA bombs in Birmingham and Guildford.
For a government that prides itself on being modern, there is a medieval slant to New Labour, which places the spectacle of justice above its efficacy. Repeatedly trying somebody for the same crime is akin to Inquisitional torture: relentless interrogation will wear down a suspect from whom a confession will eventually be extracted. And as for 'unwitting' racism, this is nothing less than witchcraft, where denial is deemed as a sign of guilt - for an empirically unprovable phenomenon. Only by having a stone tied to them and drowning at the bottom of a river can non-racists prove their innocence.
New Labour talks much of 'inclusion' and 'responsibility' but little of 'liberty'; as Ralf Dahrendorf pointed out in a recent issue of Foreign Affairs, throughout the Third Way literature Blair has only once mustered up the courage to utter that word. It would take a paranoiac to believe there is a conspiracy afoot to turn us into a nation of criminals, but a benevolent tyranny would appear to be the direction now headed.
Patrick West writes for the Times
Reproduced from LM issue 125, November 1999