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Doubly-illegal acts

I have to confess, as an ignorant inhabitant of North America, that I don’t really understand the current press scandal in the U.K., and I was hoping that perhaps someone could enlighten me.

As I understand it, a number of members of the press committed crimes in the course of gathering material for stories — that is, they committed acts that were already illegal, and which already carried substantial penalties.

It would therefore seem that preventing such acts in the future would require nothing more than diligently enforcing existing law.

I’m therefore curious as to what purpose is articulated for ending freedom of expression in the U.K.

Is it claimed that the laws were not being enforced before on the powerful? Then surely the new restrictions on freedom will be selectively enforced as well, with only the weak being stifled. (That is, of course, universal — the powerful never need permission to do anything. Freedom is a protection for the weak, the strong need no protection.)

Is it claimed that performing criminal acts was somehow insufficiently illegal? Is it claimed that the existing laws against criminal conspiracies are not already broad, vague and all-encompassing?

All too frequently, when it is discovered that merely making acts illegal is insufficient to prevent them from happening, rather than trying to see to it that existing law is enforced, the craven panderers to the outraged (by which I mean our supposedly elected masters) simply propose to make a crime doubly illegal, triply illegal, or quadruply illegal, as though multiplying the number of ways in which some act is forbidden is a magically all-potent and riskless remedy.

Anyway, to return to my original question: as someone who (for once) lives in a sane country, that is to say a place where there is a near-absolute protection for freedom of speech and the press which is beyond being destroyed for the political expediency of the moment, and who is not immersed in the discussion of the bout of temporary insanity now gripping your island in the Atlantic, might I ask what the point claimed here is? What is the putative purpose of making things that were illegal before even more illegal? Is there one, or is this just an exercise in appeasing a bunch of outspoken members of the professionally offended classes?

74 comments to Doubly-illegal acts

  • Pat

    The first point is to divert public attention from the lapses in law enforcement, and hence attempt to shore up public confidence in the authorities.
    Also to oppose free private broadcasting- phone hacking has been going on since there were mobile phones, no-one made any fuss when Charles and Dianna’s phones were hacked, but when it was suspected that Murdoch might be allowed to start up a British version of Fox News the Guardian and BBC decided to go for every Murdoch paper any way they could- and phone hacking was a handy means.

  • Paul Marks

    In reality this was nothing to with “Hacking” – which, as Perry M. points out, was already illegal.

    Nor was it really about deleting telephone messages of a murdered girl – which the News of the World did NOT do anyway.

    This was a campaign by the Guardian newspaper (itself guilty of “blagging” private accounts) and the BBC – against News International.

    Day after day, week after week, month after month, year after year – the BBC-Guardian has used this story to generate HATRED of “Murdoch” (as have the media in the United States – from the New York Times down).

    With the active assistance off “Hacked Off” a group of rich leftists who wanted to “bring down Murdoch” (a person who had naught to do with “Hacking”).

    No one cared that the Mirror Group newspapers actually “hacked” more than the News International ones – because the Mirror Group is on the left.

    At first it was all about stopping Rupert Murdoch buying Sky Television (a company he created). There was a massive media campaign to prevent News International taking full control of Sky.

    Then it was thought “we can bring down Murdoch totally – we can DESTROY the largest nonleftist media company in the world!”.

    The real target being not even British at all.

    The real target is – Fox News (and Fox Business) and the Wall Street Journal Editorial Page (neither of which had anything to do with “hacking”).

    As for destroying freedom of speech for everyone else – not just “Murdoch”.

    Why should the left care about that?

  • Paul Marks

    Quite correct Pat – and you beat me to the punch.

    Sky News is pointless – I do not know what it is for, as it carries on the same “liberal” left line as the BBC.

    But “Murdoch” might have been planning to set up a television station that actually offered some DISSENT – and the left could tolerate their monopoly of radio and television news and current affairs being threatened.

    But, I repeat, the real target was in the United States – destroy “Murdoch” and you destroy Fox News and the Wall Street Journal editoral page.

    Then dissent in what is still the most powerful Western nation is castrated (all that is left is talk radio and a few internet sites).

    A de facto monopoly for the left.

    The dream of the academics – as well as the msm.

    Truly a situation much like the “Guardians” of Plato’s Republic.

  • Perry Metzger (New York, USA)

    I am sure there are all sorts of political purposes being served here, including various sorts of vengeance being meted out, but I’m interested in hearing what the public excuse for the rules is. What is the claimed problem that could not be solved with enforcement of existing law?

  • Lee Moore

    Although Pat and Paul correctly identify the real animus behind the “phone hacking” scandal – the BBC’s determination to maintain the progressive monopoly on British TV – it’s only fair to mention that “it’s illegal already” does not meet the ordinary progressive requirements for preventing harmful things happening.

    Simply relying on punishing trangressions ex post facto is anaethma to the regulatory state. A whole nested structure of regulations is required to constrain, in advance, the structure of all private activity, so as to minimise the chances of harmful transgressions happening at all. How does it help poor Hugh Grant if his phone is hacked and some journalist is sacked five years later ? But if the newspapers are not permitted to run salacious stories about public figures (except bad people like businessmen and right wing politicians) and if they are all run by approved people, there will be no hacking to start with. Ideally everything must be illegal, until specifically permitted or licensed. The media and the public expression of opinion are no different from commerce generally. These are all dangerous activities, capable of doing great harm to innocent people, and only licensed operators can be allowed to operate them. It also helps if the regulations under which they operate are both voluminous and vague, to minimise the risk that a harmful act might subsequently be discovered not to fall within the regulatory ambit. It is not really practical to specify in advance all the things that might need to be punished.

  • Michael Jennings (London)

    The first point is to divert public attention from the lapses in law enforcement, and hence attempt to shore up public confidence in the authorities.

    It’s worse than that. Significant numbers of police were actively involved in the scandal, and took money from journalists in return for turning a blind eye to what was going on and/or helping journalists follow up on things they had found out from illegally listening to people’s voicemail. Arrests and prosecutions have concentrated on journalists rather than police, and particularly journalists at News Limited, even though journalists at other papers did the same thing to much the same extent. It’s not just lapses in law enforcement – rather it’s active involvement of law enforcement, and it was already a political attack against specific interests in the media long before these present changes in the law were proposed.

    Personally, I think the offences of such police are much greater than those of the journalists, as the police are in a position of power and trust that journalists are not. This argument is getting surprisingly little time. Arguing that this scandal calls for much heavier regulation of the police: don’t make me laugh.

  • Johnathan Pearce

    When people complain – including a lot of journalists now bleating about these laws – that we libertarians are all paranoid loons, I hope that some of them now have the good grace to admit their error in poo-poohing just how bad things have become. It may be too late to stop these absurdities at the moment, but at least, I hope, a critical mass of journalists who haven’t been very political before, or even vaguely leftist, now get what is going on and will be radicalised by this.

    I honestly don’t know if things are going to turn in a better direction during my lifetime. I suspect things will have to get a lot worse before they get better. Bear in mind that a lot of the younger generation of voters just don’t know or care about the liberties that have already been lost. (Why regret what you have never known?) A lot of people take the attitude that if X does not affect them, why care? But as the political class deepens its corruption, and as the utter uselessness of the current Welfare/interventionist state reveals itself, things can only get more and more unpleasant.

    The political parties as they now stand are losing market share, yet becoming less and less easy to tell apart. The danger here is of serious political extremism. I suppose it is possible that a genuinely libertarian political force might arise, but a grim prospect has to be a more “populist” force, with all that that entails.

    In hindsight, some of the rot can be traced back, I am sad to say, to how the Conservative Party, while it presided over a relatively modest rollback of the state (as it affected business) in the 1980s, did not come close to finishing the job and allowed a large part of the State to not just remain as it is, but get worse. Many of the sort of people who want to impose these sorts of controls are the products of an education system that has completely bought the sub-Marxian agenda, with a large dose of Gramsci.

  • Midwesterner

    I share Perry M’s question. What have the proponents of state approved news approval put on the wrapper to get people to buy into blanket censorship? I’m cynical enough to already suspect their true motives but what are they telling the public to get them to see the need for thought police? Do the British public not know that the deeds named as the problem are already illegal and already carry criminal penalties? Why does the typical supporter of censorship believe it is necessary? How are the thought police selling the idea that some cases of illegal phone hacking requires total press censorship?

  • the other rob

    There’s probably a parallel with “gun control”: Just as hardened criminals, bent upon murder, are reliably halted in their tracks by the simple expedient of declaring an area “gun free zone”, so bent coppers will refuse to betray their positions of trust by misusing the PNC, for fear of falling foul of the press regulator.

    Simples!

  • Jaded Voluntaryist

    A number of commentators around t’interweb have made the very astute observation about how bizarre it is that a scandal about the Police selling surveillance and hacking services to journalists under the table became a story about press misconduct.

  • llamas

    The reason that it doesn’t make sense to the average observer with even the most basic ideas about freedom of expression is that it has nothing to do with freedom of expression.

    As others have already described in various levels of detail, this issue has the unfortunate joy of being the perfect springboard for about a half-a-dozen powerful special-interest groups to advance their own agendas – none of which have anything to do with freedom of expression. Most are about money, power or party politics.

    Some of these agendas include

    - suppressing ‘unregulated’ reporting and comment, including on the Internet, much of which comes from the Right
    - supporting ‘traditional’ or ‘professional’ journalism, most of which leans staunchly Left
    - damaging certain specific UK newspapers and publishers, for a variety of reasons, but mostly because they are a thorn in the side of ‘the Establishment’
    - restricting the ability of the media to cover ‘celebrities’ as fully and frankly as they would like.
    - fragmenting and disempowering a wide range of broadcast media (both existing and contemplated), which can be simply defined as ‘anything that’s not the BBC’.

    A lot of the support for this regulation is openly and blatantly directed at just one or two individuals – Rupert Murdoch and Paul Dacre being the two most-commonly named.

    This massive group hate has been sold to the public by being carefully dressed up as being necessary and right, primarily by associating it with a couple of high-profile cases which are guaranteed to create public sympathy. Specifically, the ‘hacking’ of the cell-phone of murdered teenager Millie Dowler, which the public has been carefully indoctrinated to believe somehow caused something bad to happen, which must be stopped.

    Many members of the coalition driving this pile of cr*p through Parliament privately admit that they did not indend for it to have the effects it is now clear it will have – but they continue to support it as a whole, because they believe it is the only way to get ‘their’ bit implemented.

    I foresee that this will end up operating in a very sim lar manner as the advertizing regulation that’s in force in the UK. – there’s a de-facto state agency (the ASA) that investigates complaints about advertizing with the power to ban what it dislikes.

    A single complaint of offence is enough to get an advertizement made (effectively) illegal in the UK. This includes all advertizing, not just commercial but also advertizing about social and political matters. And advertizing can be banned simply because it ’causes offence’, whether or not it’s objectively truthful.

    In the same mold, in a few years, Hugh Grant will be able to have a story in a newspaper suppressed, before publication, for the simple reason that he doesn’t like it. The way he will do this is that he will have complained to the press regulator about the last story that that newspaper published about him, and involved the newspaper in a mass of costly regaulatory compliance – and this time, the paper will simply say ‘oh, screw it, it’s not worth it’ and just spike the story. For this to work, it’s very important that the regulatory process be very complex and cumbersome, so that the process is the punishment. The risk for the publisher must be unquantifiable, and potentially very great, and the risk to the person complaining must be minimal – preferably nil.

    And, indeed – lookee here. That’s just exactly what they’re building.

    It’s a shame. Oh, well. It will just accelerate the rate in which the state will continue to screw over the populace, since it will become expoenentially more-difficult to do the dirty work that’s required to expose their shenanigans.

    llater,

    llamas

  • Rich Rostrom

    As a fellow Yank who’s been watching this “scandal” – the excuse for the panic and the “regulations” goes like this…

    A significant part of the British “mainstream” press is more like what in the U.S. are called “supermarket tabloids” – devoted largely to celebrity scandal and other sensation.

    (There are differences: the American tabloids are weeklies, and – except for the Enquirer – print a lot of outright fantasy. They carry no real general news – only sensation. The British tabloids are dailies, with some general news, including sports results.)

    Thus there is rather less regard for newspaper reporters in Britain. (Referred to as “hacks”, thus “Hacked Off”.) There is a famous verse by
    Humbert Wolfe which expresses this:

    You cannot hope to bribe or twist,
    Thank God! the British journalist.
    But, seeing what the man will do
    Unbribed, there’s no occasion to.

    The recent scandal arose when it was revealed that tabloid (and other) hacks in pursuit of sensational stories had broken into private voicemail accounts and listened to the messages. The targets of this “blagging” included politicians, actors, grieving relatives, and even crime victims.

    Blame for this “irresponsible” (and in fact criminal) activity was cast on the newspapers who employed the hacks and printed their stories. Editorial and corporate management was said to have approved and encouraged it for years.

    The Murdoch tabloid News of the World was named as an egregious offender (which was true); NewsCorp shut it down, though it was the largest circulation daily in the UK. But the campaign has been spun to direct public anger against Murdoch papers, even though blagging was common at other papers.

    The justification for the new regulations is that the occasional punishment of a guilty individual is insufficient to prevent by deterrence behavior which was common (and profitable) for an industry. Therefore (as Lee Moore notes) it is now proposed to prevent the behavior by restricting who may participate in the industry.

    I would not expect the “respectable” press ever to be angered by these new regulationsm which are clearly directed at the remaining Murdoch tabloids and other politically incorrect outlets. Some left-wing reporters and bloggers may, to their horror, find the regulations used to silence reporting of scandal about left-wing politicians or celebrities. by then it will be too late.

  • Bruce

    I am still at a loss as to how, on an allegedly “secure” mobile phone network, an “unauthorised” person can trawl through someone else’s voice mail, unless they have a functional duplicate of the victims system. A little voice keeps saying, “Inside Job”.

    I understand that previous “press intrusions” included monitoring early, un-encrypted ANALOGUE mobile phones used by folk close to the Royal Family etc. This simply required a good scanner close by. See also Andrew Peacock, 23 March 1987, for details.

    However, with the advent of digital networks, unless you have access to the “switchrooms” in the network, it is ALMOST impossible to find, let alone decrypt a phone conversation. In certain “sensitive” countries, one of the conditions for the establishment of digital networks was that the “security forces” would have constant access to the decryption keys used by the network.

    As for “hacking” emails, somebody must have acquired the log-in data for the victims. One way to do that is to penetrate the entire security system of a corporate network. Another way is to get into the personal home computer of a known recipient, (known to the constabulary as the offence of “break and enter”), and insert an “auto-redirect / BCC and auto erase” routine: not for the non-tech savvy.

    Anyone who thinks such capers are the personal handiwork of knuckle-dragging scribes is a goose. The nerds who actually did the work, be they “privateers” or government “employees” will have ALL of the process, including the “approach” carefully logged, ready to dump into public domain at any sign of “trouble”.

    Next, for the “Gubmint”, “hacking” your “secure” digital phone merely requires a Warrant and a few strokes of a keyboard on the phone network: it will even work on “global roam”. Having a variety of SIM cards is a start, but the unique IMIE number of a mobile device that is registered to your name, makes you and your conversations globally trackable. Even if you swap phones, the network recognises the SIM card and links it to the “new” phone.

    If you have a PC that is NOT connected to the Net, then a little creative “covert entry” will fix that. Note that a lot of “geeks” run their computers with the sides off the case; it helps them run cooler and makes it easier to see if anything is “amiss”.

  • I don’t know about this specific case, but they don’t always need to bother with a specific and plausible excuse. The general public would just be constantly barraged with news about “this Terrible Problem” about which “something Must Be Done” or the world as we know it will end tomorrow. Then the public (who, strangely enough and for the most part, does have some kind of a life – or at least a job) hears that a solution has been found by the clever people in charge. What that solution is may not be any clearer than what the problem was to begin with, but it doesn’t really matter. IOW, my guess is that the public discourse on this entire affair takes places among the elite, being “public” only in the sense that the average Joe is allowed to observe, without asking too many unhelpful questions.

  • Perry Metzger (New York, USA)

    I am still at a loss as to how, on an allegedly “secure” mobile phone network, an “unauthorised” person can trawl through someone else’s voice mail.

    It is trivial really. I could do it to you in a few minutes. Many voicemail systems are configured to allow you in without a PIN if you’re calling from “your” number. However, the voicemail system only knows what number you are calling from via Caller ID, which is not based on any sort of authenticated data but is instead based on what the originating phone switch claims the calling number is.

    So, tell your a phone switch to pretend that you’re calling from someone else’s number, dial the voicemail system, and you can listen to everything.

    The details were explained repeatedly in the course of the investigation.

    BTW, there are many caller ID spoofing services, you don’t even need to know how to program a switch, all you need is a credit card.

    It is amazing to me that many mobile carriers still don’t require better authentication before accessing voicemail.

  • RRS

    Not to gainsay the other marvelous explanations:

    A much simpler explanation appears to lie in the standard ruse of political administrations always to appear to be “doing something” whilst they can’t quite seem to come to grips with doing anything about important things.

  • Laird

    Ahh, RRS, there you are with Occam’s Razor again!

  • Nick (nice-guy) Gray

    We here in New South Wales have been deprived of our right to silence, this very week! Unfortunately, Australians don’t ponder their rights and responsibilities much, so only a little furore was raised, and that was quickly overshadowed by the goings-on in Canberra (another failed coup attempt by ex-PM Rudd to get his old job back).

  • Steve

    If you study the law closely, it is actually a plea from the ruling classes for the people of Britain to rise up and kill them.

  • Lee Moore

    Expressions like “right to silence” need to be examined with a very careful eye. In this case the abolition of the “right to silence” doesn’t mean that the government will punish you for keeping silent. From the Sydney Morning Herald :

    “One law will abolish the right to silence, allowing juries to draw an adverse inference if people accused of a crime chose not to take part in police interviews, but later relied on evidence they did not disclose.”

    In other words there is an existing legal rule that says “The defendant chose to remain silent when questioned by the police, as he was perfectly entitled to do, and you the jury are not permitted to infer anything adverse from that.” And that is now being changed to “The defendant chose to remain silent when questioned by the police, as he was perfectly entitled to do, and you the jury are permitted to infer from that what you will.”

    This does not seem to be to be the suppression of any defendant’s liberty. It is simply removing an artificial legal constraint on the jury’s inferences. Note the rule doesn’t require juries to draw an adverse inference, it simply permits them to if that is the inference they think is merited.

    “The other law will make it compulsory for the defence and prosecution to outline their cases weeks before trial, to prevent the prosecution from being surprised by arguments. If the accused raises a different defence at trial, the judge could instruct the jury to draw an unfavourable conclusion.”

    This seems slightly dodgier as the judge is instructing the jury to draw an adverse conclusion rather than just inviting them to infer unconstrained by artificial legal rules. But again it isn’t penalising the defendant for keeping silent. It simply allows the court to draw adverse conclusions from the time at which the defendant chooses to offer a story. The wickedness of this rule can be judged by considering how y’all would feel if the prosecution were allowed to keep its evidence and arguments to itself until it actually presented them in court. If the defendant simply wishes to remain silent throughout, this second rule does not touch him.

  • Many voicemail systems are configured to allow you in without a PIN if you’re calling from “your” number.

    And those that do have a PIN activated often have PINs such as 0000 or 1234, which are easily guessable or well known. A large portion of people never change the default PIN. Of those who do, another significant proportion change the PIN to something easily guessable – most commonly their birthday or the birthday of a close family member.

    This is very low tech stuff.

  • Laird

    Lee, I assume that your description of the new law is accurate, but I disagree with the conclusions you draw. The “right to silence” is merely an element of the right against self-incrimination (enshrined here in the US in the Fifth Amendment, but I believe it originally comes from English common law). Instructing a jury not to draw any inference from the exercise of that fundamental right is hardly “an artificial legal constraint”; to the contrary, it is at the core of that right. Of course, it is entirely possible that the jury will draw some inference from it, notwithstanding the judge’s instructions, as one never knows what goes on in the jury room. However, explicitly instructing them that they may draw an inference strikes at the heart of the legal presumption of innocence and the right against self-incrimination. It is a very bad idea.

    Similarly with the a rule compelling the defendant to lay out his defense prior to trial. The presumption of innocence means that the prosecution must affirmatively prove its case (beyond a reasonable doubt); there is no obligation of the defendant to prove his innocence, but merely to rebut the prosecution’s case sufficiently to create such a reasonable doubt. That’s why the prosecution is required to disclose all its evidence to the defendant but the defence has no such obligation. The only reason for this change is to make prosecutions easier, but that is entirely antithetical to the presumption of innocence. Again, penalizing the defendant for exercising a legal right by explicitly instructing the jury that it may draw an unfavorable inference vitiates that fundamental right. Another extremely bad idea.

  • Lee Moore

    Laird, it will not surprise you to learn that I disagree. What is the purpose of a criminal justice system ? It is not simply to acquit the innocent, it is also to convict the guilty. Because convicting the guilty is the method by which, even to a libertarian, the state performs its necessary function of punishing private acts of coercion. If the criminal justice system stacks the rules so heavily in favor of the accused that the result is that a hundred guilty men go free for every innocent convicted, we may have avoided some state coercion but in return we will have got a lot more private coercion. Ancient common law rules are fine, but they are not fundamental principles of liberty. They are rules that seem to have worked fairly well in practice over the years, that’s all. If the common law did not require the prosecution to prove guilt beyond a reasonable doubt, but allowed conviction on the balance of the evidence, that would not of itself be an offence against liberty. What would matter is whether the extra unfair state coercion involved in convicting more innocents (as such a change would undoubtedly entail) prevented an even greater quantity of private coercion. As I’m fairly conservative, I would prefer to stick with tried and trusted rules unless there’s a good reason to change, and unless the change seems to offer a good balance between state and private coercion. But in my view these NSW changes (similar to UK changes a few years back) seem fairly unlikely to cause any significant increase in convictions of the innocent, and fairly likely to cause a modest increase in convictions of the guilty.

    However, my original point was not to defend these particular changes but just to argue that phrases like “the right to silence is being taken away” does not mean what it appears to mean. You are still perfectly at liberty to remain silent at all times, including when you are being questioned by the police. The prosecution is now allowed to invite the jury to make inferences from your silence, and the defence is also allowed to invite the jury to make different inferences or none. If the prosecution offers a photograph of you climbing out of a bedroom window carrying a bag full of jewelry, the jury is entitled to draw inferences as it sees fit. If jewelry that was stolen is found in your apartment, the jury is entitled to draw inferences as it sees fit. If the policeman gives evidence that you confessed, and your lawyer offers a photograph of you in your police cell covered in bruises, the jury is entitled to draw inferences as it sees fit. If you choose to make a statement, the jury is entitled to draw inferences from it as it sees fit. Why should the jury not be entitled to draw inferences from your silence, if it thinks fit.

    You will remember the splendid trial scene from A Man For All Seasons in which Sir Thomas More and Thomas Cromwell joust on the common law inferences to be drawn from silence. More makes the point that “the world must construe according to its wits, this court must construe according to the law.” But if the law becomes separated from the world’s wits, legal reforms that bring them closer together seem to me more likely than not to help in the essential task of criminal justice, which is to minimise the total quantity of coercion, private and state combined.

  • Perry Metzger (New York, USA)

    Laird, it will not surprise you to learn that I disagree. What is the purpose of a criminal justice system ? It is not simply to acquit the innocent, it is also to convict the guilty.

    Mere days ago, here in New York, yet another case of misconduct in which the police framed a man for murder was uncovered. The man spent 20+ years in prison before the prosecutors were forced to admit he had nothing to do with the crime.

    This sort of thing happens quite routinely. One routine thing that happens, by the way, is that the police coerce confessions from the innocent. We have had numerous cases in which innocent people confessed to crimes here in New York, mostly because of of police coercion. In the so-called “Central Park Six” case, six young men were framed by the police for a brutal rape. Four of them confessed on video — falsely — as a result of coercion.

    We also are now in the midst of a lawsuit here in New York in which it has been revealed that the police commissioner’s claims that there are no quotas for arrests are false, that the claims that the local “stop and frisk” program was not specifically directed at young black men are false, etc.

    One of the few protections that the innocent have against the routine misconduct of the police is the right against self incrimination. Let me be blunt: you’re a fool if you either talk to or cooperate with the police for any reason at any time. Any lawyer here in the US will tell you, in no uncertain terms, that it doesn’t matter how much you may want to help, speaking to the police without an attorney is stupid.

    You would like to tell juries that they’re free to infer that innocent people following the best possible legal advice are guilty if they wish to do so.

    You are free to infer my opinion of that if you wish.

  • llamas

    Lee Moore – I do NOT agree. The purpose of a criminal justice system is not only to acquit the innocent and convict the guilty, but to do both things fairly, and always with the benefit of the doubt in favour of the accused. You are arguing for a more-efficient system for convicting the guilty – but mere systemic efficiency should never be a consideration in the application of justice. By this thinking, the police should be allowed to stop and search every minority teenager walking down the street – statistically, this would be a very efficient way of convicting the guilty.

    The rights of accused are being gradually eroded in all sorts of little ways – see, for example, the nasty practice now taking hold in the UK, embodied in the current ‘caution’ to detainees being questioned by police, which goes like this:

    ‘You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.’

    What this says is ‘you must tell us your defence when we question you.’ This compels the accused to make statements, possibly incriminating or against his own interest, without knowing what (if any) evidence may be presented against him. This fundamentally tips the scales in favour of the police – especially when you consider that the police already have broad scope to lie to detainees.

    Instructing a jury that they may draw inferences from the silence of the accused generaly invites inferences which can only be negative for the accused. It tips the scales, when there is simply no good reason to do so. If the prosecution has the evidence required to convict the accused, his silence (or otherwise) will make no difference. Allowing inferences to be drawn from silence will only aid a prosecutor who doesn’t have enough case to convict, by allowing him to cast aspersions on the accused – he might have done it, why doesn’t he deny it? But the accused doesn’t have to deny anything, it’s up to the prosecut

    This erosion should be held at bay, as should any erosion of liberty.

    llater,

    llamas

  • RRS

    Lee,

    Have you read any of the works of the late William J. Stuntz?

    WE do not have a Criminal Justice System.

    We have a judicial system that adjudicates “Crimes.”

    That system is the remnant of the adversarial processes for resolution of disputes.

    As presently conducted (and with ever-extending legislated “crimes) the adversarial balance favors process over “justice.” (see, statement of Chief Justice Charles Fried in the final appeal of Amirault)

    Disclosure: I am not a criminal defense counsel, just a student of our legal processes.

  • RRS

    Lee,

    Incidentally Fortesque’s famous quotation only applied to capital cases.

    Death.

  • Deep Lurker

    Is it claimed that performing criminal acts was somehow insufficiently illegal?

    Actually, yes.

    There is a widespread, naive criminological “theory” that those willing to break the law are only willing to go so far in their lawbreaking. That a larger number of people are willing to “slightly” violate the law, but only a smaller number are willing to violate the law “by a whole lot.”

    Under this theory, a harsh punishment for a crime results in fewer people committing it because the harsh punishment makes the crime “more illegal.” But the same effect can be produced by prohibiting innocent acts that bring one “nearer” to committing the actual crime and/or by making the crime a violation of two or more different laws.

    For example, under this theory a firearms ban will make armed robbery less likely: If owning a firearm is illegal, then committing a robbery with it becomes “more illegal” and therefore more criminals will scruple at committing that more-serious crime.

    Likewise with crimes committed in pursuit of a scandalous story. By making it illegal to publish a scandalous story, the crimes committed in pursuit of the story become “more illegal” and therefore less likely to be committed – at least according to this naive theory.

  • Lee Moore

    llamas : “The purpose of a criminal justice system is not only to acquit the innocent and convict the guilty, but to do both things fairly, and always with the benefit of the doubt in favour of the accused.”

    Why is giving the benefit of the doubt to the accused “fair” ? Wouldn’t fair normally involve being even handed ? I know it’s traditional to say that requiring the prosecution to prove its case beyond a reasonable doubt is a pre-requisite of a fair trial, but it obviously isn’t. It’s a pre-requisite of a trial that favors the defendant. As it happens I’m in favor of that element of unfairness, but it’s hardly “fair.” It is a thumb on the scale.

    “You are arguing for a more-efficient system for convicting the guilty – but mere systemic efficiency should never be a consideration in the application of justice. By this thinking, the police should be allowed to stop and search every minority teenager walking down the street – statistically, this would be a very efficient way of convicting the guilty”

    But it would also be an excellent way of interfering with the liberty of lots of innocent teenagers. So there’s no reason to believe that such a change would reduce the world’s stock of coercion.

  • Perry Metzger (New York, USA)

    Why is giving the benefit of the doubt to the accused “fair”?

    I hope, Mr. Moore, for your sake, that you never have to learn why from personal experience.

    I am also very glad that you are powerless to make laws. I am frightened enough to live in the society I already am in, where the police routinely perjure themselves and intimidate witnesses into doing the same. The society you clearly desire would be truly terrifying.

    Here, read about a man who was executed for a crime he did not commit. I can find you plenty of similar cases. They appear almost daily. Perhaps some of us have enough personal empathy to consider the possibility that someday, we might be falsely accused.

  • Midwesterner

    I hope, Mr. Moore, for your sake, that you never have to learn why from personal experience.

    I hope, for everybody elses’ sake, that he does. One more useful idiot locked away where he can do less harm.

    The case that set my mind of this was the Rolando Cruz case. I fear I may have voted for one of those prosecutors.

    Seven DuPage County law enforcement officials, three prosecutors and four deputies, were indicted by a grand jury in December 1996 on 47 charges of conspiracy to convict Cruz despite being aware of exculpatory evidence. The indictment rested on two main points, that two detectives had testified that Cruz had told them that he had had a “vision” of the murder that contained details known only to the killer, a lie that was never included in any police report which was “endorsed and perpetuated by the prosecutors” and that the prosecutors had concealed Brian Dugan’s confession while knowing that it had included accurate details indicating he had committed the crime

  • Lee Moore

    My fear of being wrongly convicted or murder and executed by the state is rather small. Much smaller than my fear of being murdered. I have no interest in reducing the possibility of the first from one in a fifty million to one in a hundred million, at the price of increasing the possibility of the latter from one in fifty thousand to one in twenty five thousand. (Conversely my fear of losing my property to state confiscation greatly exceeds my fear of losing my property to burglars. I would happily trade this “right to silence” for 10% off my income tax any day of the week.)

    Y’all are being overemotional. Allowing a jury to make inferences from my silence does not infringe my liberty at all.

  • Jaded Voluntaryist

    Allowing a jury to make inferences from my silence does not infringe my liberty at all.

    Of course it does. Liberty is the state of not being subject to the control or agency of another person. If you are compelled to speak else your silence be taken as an admission, you are no longer a free person since a course of action is being forced upon you. Whereas if they cannot take your silence as evidence they will be compelled to build a case against you, with or without your help. You retain the freedom to choose a course of action.

    As an aside I would also suggest that the antidote to a fear of murder is not an overpowered judiciary, it is a Glock 30.

  • Laird

    Lee, I presume that you are a great fan of the Inquisition. A very efficient process which achieved an admirable conviction rate.

  • Perry Metzger (New York, USA)

    My fear of being wrongly convicted or murder and executed by the state is rather small. Much smaller than my fear of being murdered.

    There are several logical fallacies and reasoning problems implicit here simultaneously.

    The first is the assumption that one can trade these two off — that is, that one can reduce one’s risk of being murdered by allowing an increase in the risk of being wrongly convicted. I see no evidence of this whatsoever. Indeed, it would seem that increasing the risk of wrongful conviction might make things worse, not better, on the ordinary crime front.

    The second is the assumption that the risk of wrongful conviction would remain small if the rules were relaxed. There is no such assurance.

    The third is the assumption that the lives of others are toys for you to play with — that is, that you may callously dispose of the wrongfully executed and imprisoned for your own benefit as an insignificant cost. However, humans are ends in themselves and not fodder for some sort of freakish experiment in utilitarian tradeoffs. I presume that you would object if we were to dissect you to give your organs to others tomorrow — and yet we could almost certainly save five or six lives by doing so. When you volunteer for vivisection, let us know.

    The fourth is the implicit presumption that the rate of wrongful convictions is low as a percentage of total convictions. In fact, it appears not to be. Indeed, the experience with capital cases in the US is quite remarkable — a stunning fraction of convicts are eventually released on the ground of actual innocence.

    Shall I go on?

  • Perry Metzger (New York, USA)

    Oh, while I’m at it, a couple more.

    Fifth, you are making the assumption that there is some significant number of people who are guilty and who are not convicted merely because we have no means to compel them to testify against themselves in court. There is no evidence for this contention in the literature that I’m aware of.

    Sixth, in making this change you are actually giving an incentive to the police to behave in an even more reprehensible way than they do already — which is to say, you give them yet another cudgel with which to attempt to extract false confessions. The false confession rate is astonishingly high already — is the world made safer by imprisoning more innocent people while allowing the guilty to go free while also rewarding bent cops?

    Should I go on further? Perhaps I will, perhaps I won’t. However, let me quote someone far wiser than myself first:

    They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety. –Benjamin Franklin

  • the other rob

    Indeed, JV. However, while firearms are excellent at preventing murders of the type that Mr. Moore is afraid of, they are (individually, at least) of little use in preventing judicial murders of the type that many of us fear and Mr. Moore does not.

  • Lee Moore

    Perry M : “The first is the assumption that one can trade these two off — that is, that one can reduce one’s risk of being murdered by allowing an increase in the risk of being wrongly convicted. I see no evidence of this whatsoever. Indeed, it would seem that increasing the risk of wrongful conviction might make things worse, not better, on the ordinary crime front.”

    Sadly, wishing does not make it so. Pretending that there is no trade off is mere childishness. (I do not suggest that all possible reforms to the law necessarily have such a trade off – some changes, for example consulting the entrails of dead animals, are likely to increase the number of wrongful convictions and wrongful acquittals. Others – like allowing blood type or DNA evidence – may (if done with proper regard to the science) reduce the numbers of wrongful convictions and wrongful acquittals. Some matters are best considered from a realistic, rather than theological, perspective.)

    “The third is the assumption that the lives of others are toys for you to play with — that is, that you may callously dispose of the wrongfully executed and imprisoned for your own benefit as an insignificant cost. However, humans are ends in themselves and not fodder for some sort of freakish experiment in utilitarian tradeoffs. ”

    Again this is just childishness. My risk of being murdered is set against my own risk of being wrongfully executed. The same balance of risk applies to other people too. Nobody’s rights are being traded off against another’s. Nor is this a “utilitarian” calculation – the evils being calculated are not apples and pears, but apples and apples – the risk of being unjustly killed by another human.

    I am, like others here, strongly in favour of the Glock contribution to the preservation of life and liberty. But the use of Glocks also entails a non trivial risk of innocents being sent to see their maker. So I favor the use of trials too. it is no use pretending that being arrested, charged and tried do not involve infringements of liberty. But such infringements cannot be avoided without abandoning trials altogether.

  • Julie near Chicago

    Perry M,

    Murder is not the only offense for which the pre-assumption of guilt–even though somewhat attenuated, as in “your entire family will be suspect and on watch for the next seven years, despite considerable highly credible testimony refuting our charges”–can be and often has been made, and which is extremely harmful to the innocent accused. And that, even where there is NO criminal prosecution, let alone incarceration.*

    There are any number of non-capital offenses for which you can still “do time” even though you’re completely innocent. Even a traffic stop can lead to an arrest and incarceration, be it only for a few hours or overnight; and things can easily snowball from there.

    In fact the thumb on the Scales of Justice is precisely the power of Government to coerce, which includes both actual force and credible threats of force if it or its particular agent thinks–feels– persons are obstructing its or his desires.

    THAT thumb, the authority of the Government to use force, is the one that is offset by the Presumption of Innocence, which is one of the bedrock legal principles upon which our (political) liberty rests.

    Far better that a hundred guilty go free than that one innocent be punished–as a moral principle, before we even get down to cases in the real world. And we are (or anyway, are supposed to be) powerfully equipped to deal with the guilty who has gone free to kill again, as JV observes:

    As an aside I would also suggest that the antidote to a fear of murder is not an overpowered judiciary, it is a Glock 30.

    Exactly.

    And the right, infringed, unabridged, unfettered, uninterfered with in any way, to keep and bear arms is the other principle which helps you to secure your life, as well as your liberty–as long as the Presumption of Innocence is still yours if you are actually accused of wrongdoing as a result of your (perfectly proper) exercise of your right of self-defense.

    . . .

    *This is not theoretical nor second-hand, let alone fantasy: I and my immediate family have been in that position.

    I refer, of course, to allegations of child abuse/neglect. It’s a fairly well-known fact on both sides of the pond that the agency responsible for investigation and preliminary disposition of such cases regularly abuses its powers to an extreme degree.

    Perhaps you think you needn’t worry about this, as you have no children (and no contact with children, neither as family members, say grandchildren, nieces, nephews, nor the children of friends). What if you brush against a child, completely inadvertently, in a store, or speak to a strange child, or perhaps try to comfort one who is lost, frightened, or hurt?

  • Julie near Chicago

    Oh dear–The foregoing should have been addressed to Lee Moore.

    Many, many apologies to Perry M, with whose comments I totally absolutely agree.

    I’m very sorry, Perry.

  • Perry Metzger (New York, USA)

    Lee Moore says:

    Sadly, wishing does not make it so. Pretending that there is no trade off is mere childishness.

    Indeed, wishing does not make it so. May I suggest that pretending you know that something is so without being able to give us verifiable evidence that your contention is correct is the true “mere childishness”?

    Adults insist that they see cold, hard reasons before giving in to demands that the state’s power be increased. Children, on the other hand, insist that others believe them on faith.

    Whether we’re told that we must urgently pass laws to abandon three centuries of press freedom without any opportunity for debate, or told that we must immediately reduce the rights of the accused in the name of fighting terrorism, or that we must reduce the rights of the accused against self incrimination and that we’re “mere children” if we refuse, I’m afraid that I must dissent.

    Adults take their time to think about things and insist on evidence. Give us your evidence, not your claims that we’re “mere children”. If you have no evidence, leave us in peace.

  • Paul Marks

    On “the right to silence” – no one should be forced to speak.

    However, whatever judges say, if the accused does not take the stand (to answer questions) the jury will tend to assume they are guilty.

    On freedom of speech – freedom of the press.

    I must confess that I am bored with the subject now (in spite of the various good comments here and elsewhere), a country where there is no freedom of speech does not interest me.

    “But, Paul, you live in Britain”.

    I always act on the basis that I have the right of freedom of speech (and the rest of the nonaggression principle – after all I live in a shooting county).

    If others wish to punish me – that is up them.

    They may have power (there is naught I can do about that), but they have no AUTHORITY.

  • Laird

    Lee, you seem to be of the opinion that permitting (nay, instructing) juries to convict not on actual evidence but rather on inferences they draw from the lack of evidence is somehow beneficial. You also somehow think that this will reduce the incidence of what you call “wrongful acquittals” with no (or at least merely an acceptably modest) increase in the number of wrongful convictions. This displays a remarkable amount of naivetё. And you have the temerity to call Perry M “childish.”

    Perry M, well said.

  • Midwesterner

    It appears obvious to me that Lee Moore, in his strong interest in doing whatever it takes to catch criminals, is a strong advocate for private investigations and prosecutions of government officers. As the case I linked demonstrates, public prosecutors are generally in collusion with police. We need to allow private citizens to investigate (under the same powers and leeway extended to government agents investigating private citizens) and to prosecute those agents. The cases should of course only be tried before elected judges. Presumably Lee would go farther and insist that judges direct juries that any silence by the government agents may be interpreted as guilt.

    Unmistakeably, doing this can only substantially reduce crime. If the LEO community has nothing to hide, then it has nothing to fear.

  • Lee Moore

    A case of mistaken identity eh Julie ?

    I entirely agree with you on the horrors of the state child kidnapping operation. The main problem in the UK is secret courts. Without secret courts the capture of the entire “judicial” process by the local authorities would be far harder to maintain.

    We’ll have to agree to disagree on the 100 guilty men go free for every one innocent convicted thing though. If I have to choose between a hundred murders and no wrongful executions, or fifty murders and two wrongful executions, I’ll take the latter – whether we’re talking about me and my loved ones or you and yours. I am – no really – very sympathetic towards people – and their relatives – who are wrongly convicted of murder and who are imprisoned unjustly for long periods, or very occasionally in the US, executed. I suppose the big difference between me and some of the folk on this thread is that I’m also quite sympathetic towards people who are murdered – and their relatives. I see both murder and wrongful execution as offences against liberty, and I regard it as a proper function of the state to try to apprehend and punish murderers. (Without in any way deprecating the use of Glocks to try to prevent murders in the first place.)

    Perry M : “May I suggest that pretending you know that something is so without being able to give us verifiable evidence that your contention is correct is the true “mere childishness”?”

    Suggest away. I have no evidence for my contention that allowing juries to draw inferences from a defendant’s silence increases the chances of convicting the guilty. But then you don’t have any contrary evidence. So we are both speculating. And why shouldn’t we ?

    But I am on much safer ground on the general point which is a matter of logic. Any change to the law in the area of court procedure necessarily involves

    (a) a greater risk of wrongful convictions and a greater risk of wrongful acquittals, or
    (b) a greater risk of wrongful convictions and a smaller risk of wrongful acquittals, or
    (c) a smaller risk of wrongful convictions and a greater risk of wrongful acquittals, or
    (d) a smaller risk of wrongful convictions and a smaller risk of wrongful acquittals

    (I leave out the options with draws in the interests of space.)

    (d) is unambiguously a good change, and (a) unambiguously a bad change. (b) and (c) could go either way and whether any such change depends on the details of each such change, and on value judgements.

    On any particular change, I am quite content for you to argue that you think it’s a (b) while I think it’s a (d) – or vice versa. The problem comes if you – as you seem to be doing – deny the very possibility of (b)s and (d)s. That’s what is childish, not your particular assessment of the right to silence thing.

  • Laird

    “You have the right to remain silent, and anything you say may be used against you in a court of law. Oh, but if you choose to remain silent that too may be used against you.” Miranda warning, updated. A classic Catch-22.

    And of course that doesn’t interfere with one’s right to remain silent. You have a clear choice: you can actively cooperate in your conviction or you can passively cooperate in it. What could be more fair than that?

  • Lee Moore

    Well, Midwesterner, I’m certainly in favor of government officers, including those from law enforcement, being prosecuted when there is good evidence of their having broken the law. Just like anybody else. Hayek was onto something when he said that it is essential to the rule of law that the rule makers must be subject to the same rules that they make for everybody else. And I think we can sweep the rule enforcers into that too.

    Private prosecutions I’m not so sure about. As we all know the mere act of prosecution involves a blow to the defendant’s liberty, whether he is convicted or acquitted. State prosecutors are subject to various regulatory constraints to control the risks of frivolous prosecutions (though how effective such constraints are will vary from place to place.) Private prosecutions should be equally constrained. But not so constrained that they are effectively impossible, and all prosecutions are left up to the state authorities, who may, in such cases have a wee conflict of interest.

  • Midwesterner

    If government agents have nothing to hide, they have nothing to fear from a trial in open court before an elected judge and a jury. If they are afraid they may lose the case, they can seek a plea bargain to avoid a trial.

    Private prosecutors and investigators must have the same powers that government prosecutors and investigators have. Either one should be able to apply for and execute warrants and prosecute suspects.

    Setting up different powers and privileges for different classes of citizen, granting greater powers to the agents of the sovereign, is the oldest and truest incarnation of a title of nobility. Our constitution in the US goes to some lengths regarding privileges and immunities. Applying different privileges and immunities to different classes of citizens depending on their employer is an egregious violation of many core elements of our constitution.

    History and practice has shown that regulatory constraints placed on prosecutors, when enforced by other prosecutors, are frequently a sham.

    That case I linked? At very great expense to the tax payers, government paid lawyers defending government paid prosecutors and deputies against government paid prosecutors, all of them acquainted and having sometimes worked together, narrowly managed to defeat justice. The government lawyers were unable to choose the lawyers prosecuting the tort claim. That privately prosecuted tort lawsuit cost those same taxpayers who funded the criminal defense and prosecution dearly in damages.

    Those 3 prosecutor and 4 deputies should be serving hard time in the penitentiary for attempted premeditated homicide using the ‘justice’ system as a weapon. Instead, the taxpayers bore the entire punishment. Had it been a private prosecution, I have little doubt that things would have turned out very differently.

  • the other rob

    Very well said, Mid.

  • Julie near Chicago

    Lee,

    “…I’m also quite sympathetic towards people who are murdered – and their relatives.”

    As am I. Victims’ rights are real, they (supposedly) exist just as much as the rights of the accused; though (and properly!) not those of the guilty–since the guilty lost their moral right to life when they took the life of another (unjustly, that is).

    In fact, the victims’ moral rights in this are the same as those of any other innocent person: They are in the right* to seek that justice be done, and be seen to be done. (Or, if the crime is murder, the victim’s family and others who care about him hold the right to see justice done.)

    But: In what way does convicting the wrong man satisfy this moral right?

    It doesn’t. It simply gives a misplaced feeling of relief to the victim or his family, etc.

    How would you feel if one of your dearest were murdered, the alleged murderer tried and convicted of murder one, and executed or sentenced to life without parole; and at some time after his death you discovered that he had been innocent all along?

    I know how I would feel. It’s true that (unless I had tried to overlook problems I might have had and pushed aside in order to “see justice done”) I wouldn’t accept, rationally, that I was guilty in any way–any guilt would still be, rightfully, on the head of the real murderer–but I would still be burdened with some load of sorrow to accompany my previous sense of loss.

    I think it would be the same for most people–especially for those who feel so strongly for the victims that they are willing to punish the innocent.

    “I see both murder and wrongful execution as offences against liberty….”

    Indeed. Of course, they are both morally repugnant because they take the victim’s (and they are victims, in both cases, so I assume your feeling of sympathy for the wrongfully incarcerated or executed and his family are the same in both cases…so how will you repair the damage to the wrongly executed and his family?)–both victims have had their lives taken from them.

    There is no difference between them in respect to guilt or justice.

    . . .

    *”In the right”: to “have a right” to such-and-such is to be in the right, that is acting in accordance with moral principle, in doing such-and-such.

  • Paul Marks

    Of course if a jury wants to declare that someone who refuses to take the stand is innocent – that is up to them.

    Jury trials are not perfect – but the alternatives are not perfect.

    In 1819 it was noted (by the family of a dead lady) that Feudal appeal was still valid against a jury verdict in English law – so they launched one against someone who had been found innocent (by a jury) of the murder of their relative.

    He (in turn) noted that there was a response to Feudal appeal that did not involve another lengthy trial.

    He went to Westminister Hall and “flung down the gauntlet” (the old style glove) challenging his accuser to combat.

    I bet that shocked you people who think that trial by combat was abolished in 1215 (by the Great Charter), if you lauched a Feudal appeal to a jury verdict the person you accused could still demand you fight him – and this man did just that (and got every detail of the ritual correct).

    His accuser refused to fight – and he was declared innocent (a second time).

    Both feudal appeal and trial by combat were abolished (by a rushed Act of Parliament) the same year (1819).

    So let us leave the juries to their weird ways.

    Of course (in the old days) you could always REFUSE TRIAL.

    True the Crown could try and MAKE YOU consent to trial (by starving you – or by “pressing you” litterally, with stones, on boards, on you) but if you just carried on refusing to be tried (till you died) then you were INNOCENT (and your property was safe – in the hands of your wife and children). You had to CONSENT to be tried.

    In some ways feudalism (as Bentham noted with disgust) was close to “anarchy” – but some of us think that was no bad thing.

  • Lee Moore

    I entirely agree with your sentiments Julie. But you seem to be laboring under the impression that I’m in favor of wrongful convictions. I’m not, I’m against them. I simply recognise that they are an inevitable consequence of having trials at all. And I also recognise that reducing the risk of wrongful convictions, while a laudable aim in itself, may in some cases have a larger and adverse secondary effect – of increasing wrongful acquittals, and thus crime and the abuses of liberty following from it.

    When you seize your Glock and shoot the burglar climbing through the window into your house in the dead of night, and it subsequently turns out that it wasn’t a burglar but your daughter’s boyfriend, that’s a tragic mistake and you will have to try to live with it for the rest of your life. But the fact that you have made a mistake doesn’t mean that we must do EVERYTHING to prevent such a tragic mistake happening again. Like making it illegal for you to have a Glock. For tragic as the mistake was, on many other occasions it won’t be a mistake and your fellow Julies will have justly protected themselves and their families from wickednesses that bad people were planning to inflict upon them.

  • Julie near Chicago

    I understand all that, Lee, and I’m sure you’re “not in favor of” wrongful convictions. But my problem is with your contention that we should not allow the presumption of innocence to the accused (“it puts a thumb on the scales of justice,” roughly), buttressed by your disagreement with the principle “better a hundred guilty men go free…”

    [While the still-free guilty have not yet met the justice due them, at least this innocent life wasn't taken, and the victims' families (and the public) were not deceived. Hopefully any next attempt at wrongdoing will be defeated by the Glock--and perhaps justice done as well.]

  • the other rob

    Lee Moore: If nobody else will do it then I will call you a liar. Your post at 12:12 am deliberately attempts to blur the boundaries between private actors and state actors, in an attempt to steal the moral high ground from the former and hand it to the latter.

    Perry Metzger nailed it earlier: you appear to believe that “that the lives of others are toys for you to play with”.

    Or, as Sir Pterry put it, you “treat people as if they were things”.

  • Lee Moore

    Julie – “my problem is with your contention that we should not allow the presumption of innocence to the accused (“it puts a thumb on the scales of justice,” roughly”

    What I said was :

    “Why is giving the benefit of the doubt to the accused “fair” ? Wouldn’t fair normally involve being even handed ? I know it’s traditional to say that requiring the prosecution to prove its case beyond a reasonable doubt is a pre-requisite of a fair trial, but it obviously isn’t. It’s a pre-requisite of a trial that favors the defendant. As it happens I’m in favor of that element of unfairness, but it’s hardly “fair.” It is a thumb on the scale.”

    I am not arguing against the presumption of innocence, I have stated explicitly that I’m in favor of it. I am merely pointing out that it is not “fair.” It tips the scales in favor of the defendant. The defendant may, of course, feel that anything and everything that tips the scales in his favor is “fair.” But tipping the scales in favor of the defendant is hardly “fair” to the other parties involved. Like the victims. Which just in case the red mist descends again on some readers, does not mean that it is bad thing to tip the scale in favor of the defendant to some extent, merely that such tipping cannot be called “fair.”

    Which brings me on to “the other rob”

    You are entirely free to call anyone you like a liar. But when you’ve calmed down a bit you will discover that we merely have a difference of opinion. You clearly feel that there is an important boundary between state and private actors when they infringe your liberties. I don’t. Your liberty is your liberty and it can be threatened by either state or private actors. Certainly state actors have many more ways of infringing your liberty than private actors, but the infringement is the same whoever commits it. Aside from the private Glock solution, the state has a proper role in punishing private infringement of liberties. (Which it certainly abuses frequently.) But if you don’t believe it has such a role at all you’re not a libertarian, you’re an anarchist. Which you’re very welcome to be, of course.

  • Lee Moore

    One point I omitted to mention last night, in all the excitement, was Laird’s suggestion that the “right to silence” was a subset of the “right not to self-incriminate.” In the context of whether a court is allowed to draw inferences from your silence that may be so, but in a wider context the “right to silence” is a subset of the right to free speech, ie to say, or not to say, what you please without being punished by the state for doing so. Note a right or liberty to do something does not mean you have a right not to suffer any consequences for doing that thing. It just means that certain types of consequences are impermissible, such as being punished by the state for doing the thing. If, for example, Perry de H gets so cross with me for continuing to spout what I spout, he can ban me from Samizdata, and that is not even a hint or a sniff or a smidgeon of an infringement of my right to free speech. Because it’s his website. Likewise if the state arrests me and punishes me for theft, if it discovers that I have stolen the computer on which I tap out these messages, that again is no infringement of my right to free speech. Sure I am being punished by the state, but not for what I have said, but for theft.

    When you are convicted of burglary, by a jury that has inferred things adverse to your defence by your silence, you are not being punished by the state for remaining silent, you are being punished for burglary. That is not merely “formally” true, it is actually true. The state is not pretending – except perhaps in Russia – to punish you for burglary, when in reality it’s punishing you for keeping silent, it really is punishing you because it thinks you’re a burglar.

    But all the while that we’re squabbling about this, there are genuine infringements of the right of silence, where – even in the US – you can be punished by the state for keeping silent and nothing else. An example is when you are compelled to be a witness and are given immunity. You do not risk prosecution for offences that you might admit to under questioning, so this “right to silence” has nothing to do with self incrimination. But if you keep silent you will be punished by the state for doing so. For the avoidance of doubt I think this is a bad thing.

  • Lee Moore:

    I am not arguing against the presumption of innocence,

    Yes you are – should I quote you?

    I have stated explicitly that I’m in favor of it.

    Such a statement is a mere lip service, in no way refuting the things that you actually said against measures that exist to uphold the presumption of innocence.

  • Llams wrote:

    The purpose of a criminal justice system is not only to acquit the innocent and convict the guilty, but to do both things fairly, and always with the benefit of the doubt in favour of the accused.

    This is still off – albeit not nearly as off as Lee Moore’s original contention. The purpose of a criminal justice system should be nothing more or less than the protection of the innocent – be they victims or suspects.

  • Lee Moore

    me : “I am not arguing against the presumption of innocence”
    Alisa : “Yes you are – should I quote you?”

    By all means. Where have I stated otherwise ?

    me : “I have stated explicitly that I’m in favor of it.”
    Alisa : “Such a statement is a mere lip service, in no way refuting the things that you actually said against measures that exist to uphold the presumption of innocence”

    If you think that I don’t think you really understand what the presumption of innocence means. It means no more and no less than that the burden of proof in a criminal trial is on the prosecution – that is the law will presume you to be innocent unless the prosecution proves otherwise. It has nothing to do with the standard of proof, the rules of evidence or court procedure. Proof beyond a reasonable doubt, rules against self incrimination, or whether there’s a jury or not (and so on) may be very relevant to whether or not you get what is called a “fair” trial, but they really have nothing whatever to do with the presumption of innocence.

  • It means no more and no less than that the burden of proof in a criminal trial is on the prosecution – that is the law will presume you to be innocent unless the prosecution proves otherwise.

    Indeed, that is the idea. But now how do you implement this abstract idea in practice, facing the reality in which there necessarily are people – and, indeed, entire institutions – whose interest is to presume you to be guilty, unless you can prove otherwise? Answer: standard of proof, rules of evidence, court procedure, proof beyond a reasonable doubt, rules against self incrimination, whether there’s a jury or not (and so on) – are all very relevant (although not equally so) to whether or not you get what is called a presumption of innocence.

    And I haven’t even quoted you yet.

  • Lee Moore

    No. What you are trying to describe is the traditional array of mechanisms designed to limit the chances of innocent (ie actually rather than presumptively innocent) people being convicted. They are separate mechanisms. The presumption of innocence can be combined with proof on the balance of evidence, or trial by judge alone with no jury – and that’s how it is in plenty of jurisdictions.

  • designed to limit the chances of innocent (ie actually rather than presumptively innocent)

    There’s no ‘actually’, Lee. Presumption (as well as – hopefully for the defendant) consequent proof of innocence is all that matters as far as the justice system is concerned. I may have actually killed John Doe, but as long as that has not been proven beyond all reasonable doubt, I am innocent as far as the State is concerned (God/my conscience aside). In other words, all people are presumptively innocent, but only some are truly innocent. So all these mechanisms that you (and I) listed above are rested upon that assumption, and are designed to limit the chances of the presumptively innocent people being convicted.

  • Lee Moore

    No, that’s hopelessly confused. The “presumptively innocent” is everybody. The “actually innocent” is a smaller class. The trial system is an attempt to determine which of the former class is not part of the latter class. The mechanisms are designed to minimise the chances of the actually innocent being convicted. if their purpose was to prevent the presumptively innocent (ie everybody) being convicted, there would be no point in having trials at all, as any conviction (even of the actually guilty) is a failure of the mission to prevent the conviction of the presumptively innocent.

  • the other rob

    Lee Moore: My calling you a liar may have been boorish, but I stand by it. You arrange words into complex and unclear structures with the intention of dissembling in order to advance your statist cause. Where I come from we call that lying.

    As for the other matter: you have opined about my politics and you were incorrect. FYI, I have put men in prison, in the course of my work and, as I explained to another “law and order” zealot not unlike you, it’s not supposed to be easy. That’s the whole fucking point.

  • Paul Marks

    What juries assume and do not assume is up them.

    One can (and should) tell them to “assume innocence” – but if they do not like you, they may well tend to assume guilt.

    Both the 12 man village councils of the Saxons (often forgotten when academics say that the Normans are the only source for juries) or the juries of the Normans were LOCAL PEOPLE they KNEW they accused – and they based their judgement mostly on their prior knowledge of the character and past conduct of the accused.

    That may be terrbile – but it is a fact.

    As for keeping stuff from juries (for example that someone on trial for rape has raped before) – I do NOT think that is a good thing.

    As that keeping such facts away from a jury does, is lead them to make their judgement on petty things (how you are dressed, whether you have a deep voice….).

    Of course judgement should be based on the evidence, but are we talking theory or real life?

    In real life a jury (now all qualifications for jury service have long gone) tends to be made up of daytime television watchers.

    Why do you think civil law is such a mess? With juries ruling that a company had to pay lots of money for stuff that was NOT their fault.

    It is a mess because the jury (a group of people either honestly unable to find work – or too lazy to want a job) see a way of “sticking it to the rich”.

    A jury made up of “40 shilling freeholders” (people who held property to this value or above – before the great inflation) would be unliking to hand out (other people’s) money for hot cups of coffee, and so on.

    A lot of modern tort law is “social justice” not real justice.

    And, yes, this will be used against “rich newspaper companies”.

  • Lee Moore

    I shouldn’t worry, other rob. While boorish at a dinner party may be reprehensible, on an internet forum it is irrelevant (so long as the host doesn’t mind.) Likewise with the emotional and illogical.

  • Lee Moore

    Almost certainly to his great embarrassment, I agree with PM. If the rules of a trial prevent the jury hearing relevant evidence, they are much more likely to decide the case on irrelevancies. Increasing the frequency both of wrongful convictions and wrongful acquittals – ie an (a) in my scheme above.

  • Lee: yes, I did lose the thread of thought last night – touche.

  • Lee Moore

    Alisa – I unreservedly withdraw the “No, that’s hopelessly confused” in favor of “”I disagree.”

  • Yes, I knew we’d have to agree to disagree even when I just saw your first comment on this thread. Cheers.

  • Laird

    In regard to Paul’s comment, there is much in the US rules of evidence and criminal proceedure (the only ones with which I am familiar) with which I disagree. That said, this discussion is about presumptions and jury instructions concerning them, and my opinions expressed above stand. Lee and I will just have to agree to disagree on this.

  • Paul Marks

    Lee Moore – you underestimate my vanity.

    In reality my vanity is vast – like that of a cat.

    When I hear the words “I agree with you” I am too pleased to have any other thought in my head – even if the words come from someone who eats babies.

    And you have not been eating any babies – at least I hope you have not.

  • Paul Marks

    Of course it is not “the State” which decides someone is guilty of robbing a house – just because they will not take the stand and answer questions (or whatever) it is THE JURY (12 people – chosen at random).

    That was the vast difference between the legal system that developed on this island – and the legal system everywhere else on the planet.

    There had been juries elsewhere (in various times and places), but for centuries the British islands (Britain and Ireland) were the only places on Earth were you would find a jury (not just government appointed judges).

    People whose worth of freehold estate (40 shillings and above – in terms of what they could be rented for) may have excluded some people – but still included a great many people.