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An Englishman’s home

A 78-year-old man was arrested after he stabbed a burglar in his house. He was arrested on suspicion of grievous bodily harm. The burglar died and the man was then arrested on suspicion of murder. Later he was released on bail.

I can not find much to disagree with in Godfrey Bloom‘s assessment of the matter (though I know little of his views on other subjects), nor Karren Brady writing in The Sun (though I don’t agree with other things she has written there).

This exchange on Guido’s site sums up most of the possible arguments about this:

Happy Day (quoting Godfrey Bloom): What other country in the world would have arrested a 78 year old pensioner for defending his wife and defending his house in the middle of the night?

Greenacres: A civilized one. A man died, Police did a cursory investigation and released the suspect without charge at the earliest opportunity. The outcome is a tragedy for the pensioner and i’d do exactly the same as him if the situation was reversed but the circumstances of any death have to be investigated.

thinktheunthinkableuk: Investigate…yes. Question him……….yes. Get a statement…..yes. But was there any need to “arrest” him? Or lead him away in handcuffs? Or detain him in police custody for 2 days?

I would extend extreme benefit of the doubt to anyone in this situation. As Brady writes, he should have been “offered a cup of tea and a comforting arm around his shoulders” above all else. I think it should be possible to determine what happened in this sort of situation without arresting anyone.

The report on this incident in the Metro lists three other cases that may be worth further study.

94 comments to An Englishman’s home

  • Mr Ed

    For an arrest the British police need ‘reasonable grounds‘ for suspecting that a person has committed a crime.

    The first offence, occasioning grievous bodily harm could be with or without intent but essentially the offence is:

    Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person,

    The facts speak for themselves, a very old man, in his own home, two men who are trespassers, a fight, one is injured, at 12.45 am. I would say that there was no ground for any reasonable suspicion that the infliction of harm or wounding was unlawful (self-defence) or malicious.

    The police officers involved should be tried on a bill of indictment and face life for misconduct in public office.

  • Tim Worstall

    The law as it is says you may use proportionate force to defend yourself, your home, your property. What is “proportionate” is, in the end, a matter for the jury. You can’t use a shotgun against some scrote running away from you as Tony Martin found out. You can stab someone trying to cut you.

    Not perfect, be no means, and quite possibly not what the law should be. But dead person, one obviously killed by another, then yes, arrest seems the right option. It being – and it being one of our great bulwarks in favour of liberty – the jury the decides in the end. Sure, cases get dropped before then too but it isn’t the police that decide and it shouldn’t be.

  • Roué le Jour

    But it goes on his record, does it not, that he has been arrested? As TimN has pointed out, many countries visa application forms ask you if you have been arrested, with the implication that you were a criminal and the visa would be denied if you answered yes.

  • rapscallion

    I’m inclined to agree with Mr Ed. My view is that if you’re in someone else house uninvited then you deserve everything coming your way. Clearly he threatened the owner who quite rightly was scared out of his wits and merely defending his wife and his property. The real problem is that the Police and PTB hate competition, and having done nothing to prevent crime which is what the Police are supposed to do, they naturally go for the easy target – the victim, who fought back, and they hate that. What the Police should now be doing is rounding up all the scrotes laying wreaths for the burgler (not victim as portrayed) and run them out of town. The old man should be allowed to return to his house and if need be protected by the Police – like they should be protecting us all in the first place but don’t. They’ve probably too busy checking social media to make sure we don’t offer any unauthorised opinions.

  • QET

    You can stab someone trying to cut you

    May I shoot someone trying to cut me? May I shoot someone trying to bludgeon me with a baseball bat? What if some 6’5″ 270lb bloke just atackes me with his bare hands? Am I only allowed to respond with my unaided, relatively puny bodily strength?

    It is unreasonable in the extreme to require of someone suddenly facing an attacker that he carefully gauge the attacker’s force (actual or potential? See, already there’s a problem) and then carefully proportion his own force to meet it. In a matter of seconds. I don’t know about the UK law but in the US, such laws (at least where I live) place the burden of proof on the attackee (I was going to say “victim” but then realized someone would probably say “well what about the dead intruder? Isn’t he the victim?). In other words, the presumption is that the force was not justified, when it ought to be the reverse: the force used by any homeowner on an intruder ought to be presumed justified unless the State can prove otherwise beyond a reasonable doubt. Nor should the State be permitted to arrest the homeowner unless it can first obtain an indictment from a grand jury following the same standard by which (again, in the US), a temporary injunction is granted in civil actions: a demonstrated likelihood of success on the merits.

    From the State’s standpoint, it is far preferable that I die at the hands of an intruder than that I defend myself with lethal force against him, and that I even be permitted to possess the implements whereby I might successfully defend myself against him. The State will simply register one death, without qualifications.

  • Fraser Orr

    @Tim Worstall
    What is “proportionate” is, in the end, a matter for the jury.

    I don’t know the law, and presumably you do. But from a moral point of view it isn’t too complicated. You trespass in my home and threaten my with deadly violence then there should be no limit to what I can do in response until such times as the threat is removed.

    You can’t use a shotgun against some scrote running away from you as Tony Martin found out.

    Martin’s fault was that he continued after the threat was removed.

    But dead person, one obviously killed by another, then yes, arrest seems the right option.

    Investigation should certainly be required, but only a moron would not imediately understand what happened here. Arrest could have taken place later after they had investigated and found some reason to think the killing was unjustified. But clapping him in irons and tossing him in a dungeon for two days is ridiculous to the point of WTF.

    Sure, cases get dropped before then too but it isn’t the police that decide and it shouldn’t be.

    Police drop cases before they start all the time, and they should. It is part of the filtering mechanism of the law. No doubt this should have been investigated, but arresting him was just appalling. I’d hope the officers who did it are disciplined, but I am sure they won’t be.

  • I disagree strongly with Tim Worstall (April 10, 2018 at 1:50 pm): arrest is an insane option (insane on the evidence available to the police at the time of arrest, let alone what they could have learned later).

    If the police had told the pensioner, “Keep yourself available for further questioning, do not leave the district “, etc., that might have been reasonable enough.

    An issue I have not seen covered is: who looked after his wife, who has dementia, while he was under arrest before being bailed?

  • JadedLibertarian

    In castle law states in the us they do not routinely arrest in situations such as these. If they find handcuffs and a cattle prod next to the body, then they re-evaluate the situation and arrest will follow.

    That, rather than what we do, seems the proper state of affairs. By definition you should only arrest people who appear to have done something illegal. Defending your home and your life from armed miscreants is not illegal, within reason. Unless the police had reason to believe that the aforementioned was not in fact what happened, they had no business arresting.

    I think it was more about “sending a message”. It creates the perception that the pensioner victim “only just got off”, and will give those in similar situations pause.

    Why you’d want to send such a message in an ostensibly free society is another question.

  • Martin’s fault was that he continued after the threat was removed.

    I think we all know what Martin’s real “fault” was. The parole board kept him inside as enthusiastically as it released Warboys since

    there was an “unacceptable risk” that Martin, if released early, might attack with excessive force other would-be thieves who came on to his property

    whereas the risk that Warboys would rape a would-be thief who came onto his property was seen as acceptable.

    Some time ago, I encountered an example of this “after the threat was removed” idiocy. If a woman, attacked by a rapist, manages to put him down on the ground (e.g. she trips him), then (the law says – at least according to a PC interpreter of it) that she must attempt to flee, regardless of the risk he will get up again and overtake her before she reaches safety. If she attempts first to kick him while he is on the ground (i.e. in some place that would delay his getting up from the ground again) before she flees, she is guilty of assault.

    I would gladly learn that the PC interpreter was over-interpreting the statutes, but when stuff like the above happens one is bound to wonder.

  • Alisa

    The chairman of the parole board, Sir David Hatch, in an interview with The Times described Martin as “a very dangerous man” who might still believe his action had been right.

    […]

    During 2003, Fearon applied for, and received, an estimated £5,000 of legal aid to sue Martin for loss of earnings due to the injuries he had sustained.[24] However, the case was thrown into doubt when photographs were published in The Sun, showing him “cycling and climbing with little apparent difficulty” suggesting that Fearon’s injuries were not as serious as had been claimed.[25] While the case was pending, Fearon was recalled to jail after being charged with the theft of a vehicle while on probation on a conviction for dealing heroin.[26] Fearon later dropped the case when Martin agreed to drop a counter-claim. Tens of thousands of pounds of public money had been spent on the case.[27]

    Also, the typo in the Telegraph item linked by Niall, referring to Worboys as the ‘black-cab racist’ is very tangential to all this, but for some reason I find it hard to ignore.

  • Daniel Boone

    https://www.steynonline.com/8559/an-englishman-home-is-his-proportionately

    Mark Steyn at his most accurate and best:

    “In Britain everything is policed except crime.”

  • Thailover

    This is exactly why Tennessee has stand-your-ground laws and Castle laws. Castle laws are based on the idea that your home is your castle and you have a right to defend your home and yourself and your family.

    I have zero confidence in UK jurisprudence. They routinely go after the wrong people apparently on purpose. Note that a man was recently convicted for teaching dog tricks. And people in London are routinely charged for posting Mean Tweets. Meanwhile, pedophile rings operate unabated. UK law is more concerned with Lauren Southern than the rape and torture of young children.

    Ideas are supposed to be dangerous while actual gang members intimidate and chase away the goddamn police.

    I certainly understand why my friends and Thailand who are expats from the UK have decreed they will never go back.

  • Snorri Godhi

    In Britain everything is policed except crime.

    Anarcho-tyranny.

  • Y. Knott

    “Happy Day (quoting Godfrey Bloom): What other country in the world would have arrested a 78 year old pensioner for defending his wife and defending his house in the middle of the night?

    Greenacres: A civilized one.”

    Greenacres’s definition of ‘civilized’ is a bit flawed, methinks – mine is “any country who’d arrest an old man defending himself, his wife and his property from two late-night trespassers-with-intent, after passing laws that deprive him the possession of arms for doing so (while doing very little to hamper the trespassers’ possession thereof, should they have so chosen) is not ‘civilized’, however much they may delude themselves otherwise.” Sadly, this is a worldwide disease.

  • llamas

    Well, this will get me into trouble (again) but here goes.

    I’m not seeing too much wrong with what happened in this case when seen in the context of the actual timeline – and not with the perfection of hindsight.

    Police get the call and find a man standing over dead body, admitting he killed the dead man, and alleging self-defense. No witnesses, no video, no other context. Some inferences may be drawn from the circumstances, but not enough to unequivocally accept his version of events at the time.

    Guess what? He’s going to get arrested. Even in the US, where the right to self-defense is much-more robustly interpreted, he would be arrested. And he should be. A man is dead, by the man’s own admission, at his hands. There needs to be an investigation to determine what happened here, and in the meantime, the admitted killer needs to be questioned, his story verified, and ‘the due process of law’ applied.

    And that’s what happened. Arrested – nota bene, not charged with anything, merely arrested – questioned, investigated, and pretty-quickly bailed on (apparently) pretty-liberal bail terms. It seems very likely that, in due course, it will be shown that there is no basis on which to charge him with anything, and he will be discharged.

    The fact that he’s a sympathetic character, and that hindsight appears to overwhelmingly-support his version of events, doesn’t change that. He should have been arrested, and he was. Something as serious as the violent killing of a man, in circumstances which are by no means clear at the time, cannot be disposed of at the time based upon the unsupported story being told by the man who did the killing.

    JadedLibertarian – you are mistaken when you claim that ‘In castle law states in the us they do not routinely arrest in situations such as these.’. In these circumstances – dead body, no witnesses, no video, no other evidence, nothing but the story being told by the admitted killer – he would be arrested Every Single Time in the US. There is more-than-enough probable cause to suspect a homicide, and PC is the usual standard for arrest/not arrest, even in Castle Law states. Arresting him is the only way to take his statement and/or gather physical evidence and/or carry out a proper investigation. As I have written here before, if it were me, I would want to be arrested in such a case, since arrest confers significant legal safeguards upon me, and clarifies my position in law.

    The only failure I can see in the instant case is that it may have taken a little longer than it should to assess the situation and figure out that lenient bail was the right course. The law’s delays, and all that. But killing a man is not a trivial matter – no matter what the circumstances – and it is no place for a rush to judgement. Sorry he had to spend a couple nights in the cells. Given that he’s alive, and the man who apparently attached him with deadly force is – dead – and so he’s a lucky man and the winner in this encounter. A couple nights in the cells is a small price to pay for his life and freedom.

    llater,

    llamas

  • JadedLibertarian

    Llamas,
    I used to frequent a few US self defense forums, and there was more than one story told of armed householders who killed intruders and were questioned (sympathetically) but not arrested.

    I suppose it’s possible these stories were all lies, but they certainly had the ring of truth to them.

  • JadedLibertarian

    In fact here’s a story from Oregon of all places.

    Very similar to what happened in London. No witnesses, dead burglar and yet no arrest.

  • Fred Z

    Civil servants are lazy, cowardly, butt covering, shameless, dishonest, money grubbing arseholes.

    Coppers are civil servants.

    Are we done with this topic yet?

  • bobby b

    I have to chime in here to agree with Llamas. Here in the US, in most jurisdictions, given no witnesses and given that the castle doctrine and Stand Your Ground laws do not negate a killing but rather provide a defense to a killing (maybe a subtle difference, but an important one), an arrest in such a situation would be expected.

    Jurisdictions here vary quite a bit in their treatment of armed defense. In pro-self-defense jurisdictions, it does happen in many instances that the facts that are immediately apparent to the police will cause them to not arrest a homeowner with a dead robber in his home, but in most of our larger cities, you’re going to jail until they sort it all out.

    And, I’m confused. Didn’t the police clear this gentleman two days ago by announcing that they would be bringing no charges? Or were there two similar defense-of-home shootings?

  • Bilwick

    Today’s “Instapundit” blog has a link to a follow-up story, about a sort of “shrine” mourners made in memory of the deceased burglar. I’m not joking. Some guy decided, “Enough is enough” and destroyed the shrine. I’m guessing he’ll face a stiffer sentence than the burglar would have, had he lived.

  • llamas writes:

    Police get the call and find a man standing over dead body, admitting he killed the dead man, and alleging self-defense.

    My recollection of the press reports is that the person who died did not die on the premises, but ran away (well – moved away) and died later – in hospital according to the linked press article. Thus, at the time of first meeting the police, the home owner had no idea that anyone had died.

    On top of that, who called the police? Was it not the home owner?

    What weapon was used to wound or kill the home invader? And who brought that weapon to the scene? I recollect one early press report saying the weapon was the screwdriver that was brought to the scene by the person who died – but then nothing; no statement of fact by the police! According to the linked article, police were unable to confirm whether the suspect had been stabbed with the screwdriver. Now, I am inclined to agree that, the screwdriver not being found (at the hospital) stuck into the person who died, one might choose to await the post-mortem. But was any other weapon (kitchen knife perhaps) found stuck in the victim, or covered in blood back in the house or elsewhere? Surely there is no longer any doubt as to what was the weapon/instrument? Why are the police continuing so unwilling to provide any information on that issue?

    Finally from me for now. From an online dictionary – Murder: deliberate killing of a human. From an online encyclopedia – Murder: the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human being with malice aforethought. At the time of issuing the police statement WRT murder, was there adequate reason to believe that the crime of murder had actually been committed? Without justification? Premeditated?

    Best regards

  • llamas

    @JadedLibertarian – well, it’s the exception, that proves the rule. However, I submit that, for every story you can find of similar circumstances, where the homeowner killed an intruder and was not arrested, there are 50 stories of similar circumstances where the homeowner was arrested, and oftentimes charged as well. Your claim was that, in such cases, homeowners are not ‘routinely’ arrested, but a simple Google search will show that it is just not so – homeowners are ‘routinely’ arrested in such circumstances, and in fact, cases such as the one you linked are very-much the exception.

    I think I may have some insight here, and it points up something I have brought up here before, namely, that most people see a story like this and do not think hard enough about what they see. I re-read all the news reports with care – but I read them like the (ex)-officer that I am, and something leapt off the page at me. Here’s a 78-year-old man, with all the frailty that that implies, who gets into a hand-to-hand tussle in the dark with a fit 30-something man armed with a shiv – and the end result is the 30-something man is stabbed to death, and the 78-year-old has some bruises but is otherwise unharmed?

    Not saying it’s impossible, but – how likely is that, as an outcome? Would you say? Really? Maybe it would behoove us to look a little closer before taking this story at face value. Is it possible that there is another explanation?

    Nigel Sedgewick – thank you for clarifying the timeline of events. I was wrong to describe events as I did, but it does not alter my larger point – the homeowner admitted that he stabbed the victim. He was initially arrested on suspicion of GBH, upgraded to murder when the victim died of his wounds. As he should have been.

    And now, as I understand it, it seems that all the evidence supports his account and he has been freed from custody without any charge. Result. This is how the rule of law works.

    llater,

    llamas

  • Well, this will get me into trouble … (llamas, April 10, 2018 at 7:41 pm)

    Not just you, llamas: the police as a whole; society as a whole. This sort of behaviour destroys trust in the police on the part of just that part of society that they most need. The police lose much more than they could possibly gain when they behave in this way.

    Others have noted your errors of detail, but I ironically agree that, while you were…

    wrong to describe events as I did, … it does not alter my larger point. (llamas, April 10, 2018 at 9:35 pm)

    Your larger point was wrong, for larger reasons than those details.

    It would appear that the police had on the one side a habitual burglar and thug, well known to them, on the other a frail old man with no form. The circumstances of the encounter made it very obvious the former invaded the house of the latter. It makes obvious sense to question the homeowner in detail. On the grounds that you might discover reason to reassess the sane assessment you will have made after processing the scene, you could reasonably make an assessment of whether there is any flight risk on the part of the homeowner – who is an OAP, with a wife with dementia. Especially if the homeowner were cooperating unreservedly with the police, perpetrating the formality of arrest merely begs the kind of trouble the police are now getting.

  • On top of that, who called the police? Was it not the home owner?Nigel Sedgwick, April 10, 2018 at 9:10 pm

    I note, merely for completeness (or pedantry), that the error in llamas’ original description of the case actually provides its only (inadequate and merely partial) excuse. Because the wounded thug fled the scene, it’s reasonable (from the available descriptions) to think his being found and hospitalised was at first a separate incident report from the homeowner’s report of a burglary. (It might even have been raised first, since it would not be astounding if the OAP, shocked and/or bruised and/or reassuring his demented and distressed wife, was slower to call it in than the thug was to flee, collapse and be spotted – though I note I have not seen any report of that.) The police attitude might thus have begun as an honest mistake – one which police that were not channelling the attitudes of the parole board would discard as the night wore on.

  • Paul Marks

    Mr Ed is correct – action should be taken against the police officers, who have clearly violated legal principles.

    As for the gentleman they arrested – he should be given high honours for defending his home and wife, against two criminal thugs. AND for removing a criminal threat to society.

    The family of the criminal have tried to put up a memorial to their criminal family member – in the very street where he tried to rob the house. Clearly the apple does not fall far from the rotten tree – the family are not ashamed, they are proud of the dead criminal.

  • Steve Brown

    I am 70 years old, my wife is 69. My second daughter still lives with us while she completes her second University degree. Should I encounter an intruder in my home I will attack him/her with the razor-sharp Ghurka kukri I keep next to my bed. I will use it with full and violent force with the sole intent of reducing the intruder to a passive state. I would give no warning, just the diagonal slice taught to me by Ghurka Soldiers, men with whom I have served. The kukri is a very effective close-combat weapon, both for slicing and for stabbing.

  • llamas

    Niall Kilmartin – what you are doing, is the same as what many others are doing, which is deciding what should have been done in the minutes and hours immediately following the events – based on what we know now, days later.

    That this is so is pointed up, more clearly than anything I could say, by your own description of what may have happened during an initial confusion as ‘an honest mistake’. That’s a judgement, based on what we know now. But at the time, it was not a mistake of any sort – it was a decision based on the best evidence.

    Everything you say about what should have happened, based upon the identity of the dead man, the situation of his killer, the available evidence, and so forth, did happen – as soon as those things became clear and known. He was bailed within a day, and discharged with no further action within 3 days. So the basis of your complaint appears to be that the police were not able to unravel the entire story in 10 minutes or less, and so had to do, what they would do with any other person who had admitted to stabbing a person who had since died of their injuries – namely, arrest them, pending further investigation.

    Are you saying that the police should take anything said by an OAP with a sick wife at face value, with no further questions asked? He said he found a burglar, and stabbed him in the struggle, but he’s old and his wife is poorly, so let’s just say he’s telling the truth. Case closed? Really?

    I’m sorry this happened to him, especially given his circumstances. But back up a second. He admitted to stabbing a man, who is now dead, in circumstances that are not clear. Sure, now we know that the man he stabbed was a lowlife scumbag and his stabbing appears to be entirely justifiable in the circumstances. But the police did not know that then, it took a while to figure it all out and prove it, and in the meantime – he spent a night in the cells. And now he’s a free man. More power to him, he did a good thing and I’d happily shake his hand and congratulate him for doing what is, in the last reduction, a societally meritorious act. But a man is still dead. Forgive me if I think that a few hours inconvenience suffered by the man who killed him is not too high a price to pay to ensure that what he did was righteous.

    Your bloviation about destroying trust the police is just that – bloviation. Forgive me if I am too blunt, but it is true. The police investigated a killing, and found it to be lawful. Case closed. What you are suggesting is that there should be a special law for old folks, or people with sick spouses, or people who are otherwise sympathetic or likeable. Different laws for different people – now that’s what erodes trust in the police.

    Your point about ‘flight risk’ is entirely misplaced. That is a proper factor in the decision about bail, but should never be a factor in the decision about arrest, which should be based entirely on available evidence. Similarly, the situation of his sick spouse, while unfortunate, does not change the facts of the case and the decision about whether or not to arrest.

    He stabbed a man, who subsequently died. At the outset, those were the only facts not in dispute. People get arrested for that, no matter who they are. As soon as the situation became more-clear, within a few hours, he was bailed, and just a couple days later, he was discharged entirely. Now – what is your beef, exactly? That it took 2-3 days? Well, how long should it take to investigate the case of a man stabbed to death? How many hours of investigation is his life worth? Or is his life forfeit simply on the say-so of an old, middle-class man, simply because he has a long criminal record? I’m dying to know.

    llater,

    llamas

  • bobby b

    “This sort of behaviour destroys trust in the police on the part of just that part of society that they most need.”

    Dissent.

    Speaking as an ex-defense lawyer, a homeowner with a 12-guage coach gun for home defense and enough other arms and ammunition to bog down a small Volkswagen, and as a rabid proponent of self-defense and our 2nd Amendment, it is my expectation that, were I to shoot someone in as clear of circumstances as I can construct of pure justified defense, I would initially be arrested, and likely would be in custody for a day or two.

    I would expect it, and I would place no blame on the cops for it. I might be pleasantly surprised not to be arrested, but that wouldn’t be my expectation.

    The normal cop, with five outstanding calls awaiting his attention when he finishes with mine and a lack of investigative tools at hand and no witnesses to clear things up, is rightly going to take me into custody at that point. It will be the detectives’ job to take over and investigate and possibly clear me.

    (And, frankly, for a cop to let an old white guy go loose in these circumstances might not be politically acceptable in his situation, a situation for which I cannot blame the cop.)

    I’m the last person who would deny this old guy the right to cause harm to this intruder in this situation, and also the last guy to defend the current cop mindset, but I fear we place to much of the immediate burden on cops to decide on behalf of the system that there’s no offense and no reason to bring the guy in.

  • Roué le Jour

    Llamas

    Different laws for different people – now that’s what erodes trust in the police.

    Which is exactly the point. What is getting people wound up is not that the letter of the law was followed precisely in this case, I’m sure it was, but that it is clearly not followed precisely in all cases.

  • Julie near Chicago

    bobby, this is somewhat O.T., but I’d like your thoughts on the issue of plea-bargaining currently: its prevalence, its moral and legal justifications or misjustifications (I hope you see what I mean), and the reasons why it exists as it does today.

    This because people keep complaining about plea-bargaining and how it is so abused as a matter of course; yet I have read an argument in its defense, at least as it’s used in New York County. Namely, that there does not begin to be enough personnel, or time, for the legal system to bring to trial everyone who ought to be tried; and that if most of these people were tried and a just verdict of “guilty” were pronounced, there wouldn’t be enough prison capacity to hold most of the convicted.

    (Example: M snatches Jane’s purse, knocking her to the ground during the crime. I would think this would rightly merit a charge of “felonious assault,” more or less — is that right? But in fact he didn’t get away with the purse, because her little dog Toto clasped his ankle in its mighty jaws, and she, being unhurt save for a skinned elbow and knee, repossessed her purse. The Legal Aid lawyer suggests his client cop to a misdemeanor with no jail time, and the prosecutor agrees. Is this how it might work in such a case? If it’s a bad example, please educate me.)

    Regardless of whether the scenario is at all realistic, the questions themselves remain.

    Thanks.

  • Roué le Jour

    Something has just occured to me. Don’t you have a law in the US that if two or more people are engaged in a criminal enterprise and one of them dies, regardless of how, the remainder of the group can be charged with his murder?

  • JadedLibertarian

    I think we’re getting bogged down in an is/ought. I concede the “is” is rather more complex than I thought in the US in terms of what actually happens (thank you Llamas and Bobby b). That doesn’t change my mind about what ought to happen.

    This “we’ll arrest you just to be on the safe side” approach is not just. It treats someone who has done nothing wrong, and crucially does not appear to have done anything wrong as a criminal. Let’s apply this approach to other situations as an example shall we?

    You’re involved in a traffic collision with a parked car on an empty street. You report it to the police. They breathalyse you and find you have not been drinking. You report that a dog ran in front of you and you swerved to avoid it, striking a parked car. You have already exchanged insurance details with the owner of the car. The police arrest you because you might be lying and might have rammed the car on purpose.

    A young child is found crying in a large department store by a local police officer. A few minutes later their worried parent turns up, saying their child slipped away from them in a crowd and they’ve been anxiously looking for them ever since. The police officer arrests the parent because they might be lying and the child might have run away and been crying because they were molested.

    Arresting someone for a crime there is no reason to suppose they’ve committed cannot be just. By all means investigate, interview the person, but unless something turns up to alter the very simple and obvious narrative, don’t arrest as a mere precaution. I don’t know where this idea has come from that the police can’t interview without arresting you, because they do it all day every day. It’s called being a witness.

  • bobby b

    Julie near Chicago
    April 11, 2018 at 2:30 am

    A: “that there does not begin to be enough personnel, or time, for the legal system to bring to trial everyone who ought to be tried; and

    B: “that if most of these people were tried and a just verdict of “guilty” were pronounced, there wouldn’t be enough prison capacity to hold most of the convicted.”

    Julie, it’s very much (A) and not at all (B). We’ve never been unwilling to build more prisons when they were necessary, but we’re deficient in building courtrooms, and in paying for more judges and prosecutors and public defenders and administration employees.

    Plus, prosecutors aren’t always presented with the greatest of cases. Going into trial with poor evidence means the defendant has a reasonable chance of being set free. So, on the thinking that it’s better to get some punishment for a crime than none, they will often offer that defendant a chance to plead guilty to something less serious.

    On a defendant’s side, you might face a guideline sentence (statutorily mandated length of prison for a specific crime) of ten years if you are convicted at trial, but with some chance of being found not guilty. Or, you can limit your damages by giving up that shot at trial by accepting s significantly shorter sentence.

    (That’s where the coercive influence comes into play. The complaint about plea bargaining is that it causes people to accept some imprisonment in order to avoid the longer threat that hangs over their heads if they choose to argue their innocence and go to trial, even when they are innocent. It takes a brave soul to maintain innocence knowing that if you lose at trial – which is always a crapshoot – you might go to prison for a decade or more. It’s a far safer bet to take a year or two in jail and give up the fight.)

    I don’t see the system as being as bad as some make it out to be, because in my experience defending people, almost every client admitted to me that they had indeed done what they were accused of. I never saw a client who was innocent but who was coerced into pleading guilty because of their possible sentence. Our bargains were always based on the strength of the state’s case and the strength of our defense. When I knew we had a decent shot at a motion to exclude evidence, our bargaining power for a plea was high. When they had my client dead to rights, I knew that the offer to us for a guilty plea wasn’t going to be wonderful – maybe a few years off.

    I remember telling a client that I guessed we had a 60% chance of getting the seized drugs excluded as evidence in his Possession For Sale prosecution (which carried a 15-year mandated minimum sentence), and so I thought it would be worthwhile to pursue the motion and not accept an offer to plead guilty in exchange for a three-year sentence (which was offered only because the prosecutor agreed about the chances of our exclusionary motion.) He looked at me and said “you mean I have a 40% chance of dying in prison, or I can get this done and be out in three years?” He took the offer. That’s plea bargaining.

  • bobby b

    Roué le Jour
    April 11, 2018 at 2:59 am

    “Don’t you have a law in the US that if two or more people are engaged in a criminal enterprise and one of them dies, regardless of how, the remainder of the group can be charged with his murder?”

    Yep. It’s called Felony Murder in most jurisdictions. If you participate with others in one of the specific listed offenses (like assault, rape, robbery, kidnapping, etc) and someone dies because of that activity, all participants can be charged with that death. If England has this, than the dead guy’s accomplice can be charged with murder for his buddy’s death.

  • Roué le Jour

    If England has this…

    Yeah, we wish. He’s probably going to turn up on afternoon TV as a “Burglary Survivor”.

    Anyway, thanks for that. I got it from a Michael Connelly book and wasn’t 100% sure.

  • bobby b

    Julie, sorry, I forgot about your example.

    “(Example: M snatches Jane’s purse, knocking her to the ground during the crime. I would think this would rightly merit a charge of “felonious assault,” more or less — is that right? But in fact he didn’t get away with the purse, because her little dog Toto clasped his ankle in its mighty jaws, and she, being unhurt save for a skinned elbow and knee, repossessed her purse. The Legal Aid lawyer suggests his client cop to a misdemeanor with no jail time, and the prosecutor agrees. Is this how it might work in such a case? If it’s a bad example, please educate me.)”

    Once M has Jane’s purse in his hand, he has completed the crime – called strongarm robbery in the common-law vernacular. Subsequently losing the purse back to her won’t get him anything in plea bargaining. Had he tried to take it but she held on and he went running, he would have been guilty of Attempted Strongarm Robbery – for which the sentence is just about as severe.

    If the prosecutor simply has too many cases on his list, he might offer a deal just because the guy is such a pathetic criminal and he needs to concentrate on those who are a real threat to society, but the fact that the purse was recovered doesn’t really affect that decision. If Jane doesn’t really remember if the suspect is the guy who knocked her down – if she goes to a line-up and says that she thinks it might be M, but it also might be N who is standing next to him – THEN the prosecutor is going to offer to let him plead guilty to some lesser charge, because the prosecutor knows he might lose at trial.

    It’s all about risk management on both sides. Prosecutors hate the risk of “Not Guilty” verdicts. Defendants hate the risk of long guideline sentences. Going to trial is a risk for both. So they compromise.

  • Mr Ed

    bobby b

    it is my expectation that, were I to shoot someone in as clear of circumstances as I can construct of pure justified defense, I would initially be arrested, and likely would be in custody for a day or two.

    Be that as it may, the police cannot arrest you simply for shooting someone, there has to be (here) a reasonable suspicion that a crime has been committed, and whilst the actus reus may be self-evident, the lack of mens rea in the circumstances of this case was obvious, and perhaps the actus reus, as the law required an unlawful and malicious wounding or infliction of grievous bodily harm, not simply wounding or grievous bodily harm. Funny how cops who shoot unarmed men are rarely arrested, they might be interviewed under caution some time later, but rarely under arrest. Why one law for them?

    llamas

    Are you saying that the police should take anything said by an OAP with a sick wife at face value, with no further questions asked? He said he found a burglar, and stabbed him in the struggle, but he’s old and his wife is poorly, so let’s just say he’s telling the truth. Case closed? Really?

    You put it the wrong way around. The case can only be opened if there is a reasonable suspicion that an offence has been committed, there were no grounds for a reasonable suspicion, and a police officer’s concern for bureaucratic retribution is no basis for anyone to be arrested, he must follow the law or quit. You are siding with the bureaucrat rather than the (notionally free) citizen.

    JL said pretty much all that needed to be said.

  • llamas (April 10, 2018 at 11:34 pm), contrasting (for example) my statement

    It makes obvious sense to question the homeowner in detail.

    with your reply

    Are you saying that the police should take anything said by an OAP with a sick wife at face value, with no further questions asked?

    makes me think you are not actually engaging with what I’m actually saying.

    Nothing in what I write suggests the police should have ruled out all alternative interpretations “within 10 minutes”, or failed to gather all forensic evidence from the kitchen, from the OAP himself, etc., or would be criticised if they had invited the OAP to the station for an hour to make further tests (or been nearly as criticised if arresting him had his response been a flat refusal to cooperate – see, for example, my ‘Especially if the homeowner were cooperating unreservedly with the police’).

    The question is: what do the police gain by arresting the OAP that compensates for the predictable response that you term ‘blovation’ ?

    You ask a specific question:

    Or is his life forfeit simply on the say-so of an old, middle-class man, simply because he has a long criminal record? I’m dying to know.

    If you’re dying to know, I’ll attempt to tell you. His long criminal record is extremely relevant to the assessment of how he came to be in the OAP’s kitchen, and therefore to the behaviour appropriate to the police: after completing their assessment of the situation, do they arrest the householder or not?

    I think that a few hours inconvenience suffered by the man who killed him is not too high a price to pay to ensure that what he did was righteous.

    And if the OAP had instead been questioned (for hours if so many questions were needed), had accepted a ride to the station (if needed) to allow collection of any forensic evidence not easily taken at the scene, etc., but the act of arresting him had been omitted, this would have failed to ensure that what he did was righteous (and also spared the police ‘blovation’) how?

    Now, bobby b (April 11, 2018 at 12:28) makes a better point by offering the scenario of

    The normal cop, with five outstanding calls awaiting his attention when he finishes with mine and a lack of investigative tools at hand and no witnesses to clear things up, …

    If we imagine the situation to be, not the typical CSI picture of a couple of competent (and good-looking) people turning up during the same night while a local policeman is still present but on the contrary one or two beat policemen having to decide in literally 10 minutes before they rush to the next call, then poor or overcautious use of discretionary arrest becomes much more excusable. You and I may be watching different movies here.

    The blow-back the arrest caused is the public trying to remind the police that the many victims of burglary, home invasion, etc., do not feel today’s police have the right instincts. (So of course, if the police could convincingly reply, “Well, if the householder had been killed then we’d have thrown resources at it right away, but because it was just the creep, we let all our CSIs sleep in – which, sadly, meant the OAP had to spend a night in the cells to prove he did not wash off some forensic evidence that could have changed the obvious interpretation.” I’m guessing if we lived in a world where that was the official reply to public complaint then the ‘blovation’ would be sensibly diminished. 🙂 )

    HTH

  • llamas

    Lots of interesting thoughts here. Forgive me if I let go by the parallel discussion about plea-bargaining ASF, it’s a good discussion to have but it’s not relevant to the issue at hand.

    Niall Kilmartin and others – you are still making your assessments of what should have been done at a given time based upon answers to questions which we have now, but which were not known at the given time. It’s obvious from the reporting that this case was a mass of confusion for several hours. The only facts not in dispute in the first few hours was that a man had been stabbed – fatally, as it turned out – and another man was admitting to doing the stabbing. So your complaint remains that it took a few hours to marshal enough facts to bail him. Again, I say – that does not seem like too much time to spend to ensure that a dead man was killed lawfully and not unlawfully.

    Part of the reason for all this Monday-morning quarterbacking appears to be some sort of pearl-clutching middle-class horror at the concept of being arrested – as though being suspected of wrongdoing is some sort of confirmation of it. Guess what? I’ve been arrested, both in the UK and in the US, although not for anything like this. It’s a bureaucratic procedure, which can be un-done almost as quickly as it was done.

    It’s funny that the two commenters here with the most apparent experience of the criminal justice system – bobby b. and myself – are both saying that an arrest in the given circumstances would be entirely-normal, and I even went to far as to say that, were it me, I would want to be arrested. Let me go further (and turn around Niall Kilmartin’s question about what the police had to gain by arresting this man) and suggest that being arrested was actually in his interest and may well have accelerated his release and exoneration. It was not so much what the police had to gain by it, as what (potentially) the arrestee had to gain.

    His arrest would secure any physical evidence on his clothing and person as soon as possible, with an iron-clad chain of custody and a minimal risk of contamination. It would ensure that anything he said was recorded and secured, and free of the possible taint of conversation with others creating confusion and doubt. It would ensure that he had the advice of counsel, who would prevent him from saying or doing things not in his interest and (more-importantly) prevent the police from saying or doing things to trick, confuse or intimidate him. Yes, this happens. And it would start several clocks ticking to ensure that the police investigation was timely and effective, and to ensure that he would have process to challenge his detention. None of these things would obtain, necessarily, if he were to go voluntarily down to the station to ‘help the police with their inquiries’. If he truly is an innocent man, who was entirely-justified to do what he did (and I completely accept that he is) all these things can only help him, and none of them can hurt him.

    That’s why, if it were me, I would want to be arrested, and I would not say a word about the matter at issue beyond name, rank and serial number until I was sitting in a nice warm room with a cup of tea, a running tape recorder, and a lawyer at my side. If the man is truly innocent of any wrongdoing (and it certainly appears that he is, and again, I completely accept that) then being arrested may have been the best thing that could possibly have happened to him – your distaste for the idea notwithstanding.

    For more thoughts in this direction, suggest the lecture ‘Why you should never talk to the police’ by Professor James Duane, all over the Tube of You. While this is very-specifically reflective of US law, many of the principles are applicable the world around, and specifically, to legal systems based in the English system.

    @ Steve Brown. Well done. You just stipulated, in a public forum, that you would immediately, unquestioning kill any ‘intruder’ you found in your house. Congratulations. It was this self-same statement that got Tony Martin a five-year sentence for manslaughter when what he said he would do came up against the situation in which he could do what he said – and he did. I hope very much for your sake that you do not find yourself in the same situation. And doubly-so if the ‘intruder’ you kill turns out to be a police officer investigating the break-in at your house, or a drunk teenager who went in the wrong door, or a person on the way home from a late turn at the Samaritans who forgot to take her bipolar medication. If that’s the way you feel, why not forgo all the business with the kukri and just set up tripwires and shotguns at every door and window? Same effect.

    @ Roue le Jour, who wrote:

    “What is getting people wound up is not that the letter of the law was followed precisely in this case, I’m sure it was, but that it is clearly not followed precisely in all cases.”

    Fair enough, good point. Examples, please.

    llater,

    llamas

  • bobby b

    Mr Ed
    April 11, 2018 at 8:43 am

    ” . . . the police cannot arrest you simply for shooting someone, there has to be (here) a reasonable suspicion that a crime has been committed . . . “

    To arrest, police need to be able to show that there is probable cause to believe (A) that a crime has been committed (B) by the suspect. Here, we get into what I said above about non-proof of a crime versus a defense to criminal charges.

    Looking to JL’s examples, (a car collision, and a found child), in neither scenario do we see evidence leading one to believe that all of the elements of some crime have been shown.

    To collide with another car is no crime. It only becomes a crime if there is evidence that the collision was intentional. At that point – say the damaged car’s owner showed the cop your written note to him stating that you would be ramming his car if he didn’t pay you what he owed – you would be arrested. Lacking that piece of evidence, there is no showing of a crime.

    As for the found child, the same holds true. Absent evidence of a crime – something showing that the child had been abducted or harmed, specifically by you – there is no showing of a crime. If the child pointed to you and said “he took me”, only then would the cop have cause to believe that a crime had been committed, by you. He would then arrest you.

    In the case at hand, the cops were confronted with a punctured body, and with the old man’s statement that he had intentionally caused the puncture with a screwdriver. At that point, the cop had probable cause to believe that a crime (assault, or negligent homicide, or manslaughter, or murder) had been committed, by the old guy. The elements of at least one of those crimes had all been satisfied at that point – and the old guy was properly subject to arrest.

    In the next stage of analysis, there are several legal doctrines and statutory provisions that might provide a defense for the old guy against charges. Self-defense is one such defense. Mind you, it does not involve disproving any of the elements of a crime that would have to be proven – all of those elements remain proven. The old guy did indeed commit all acts necessary to be charged with a crime. A legal defense is best characterized as “but it doesn’t matter, because he had legal cause to commit that crime.”

    This involves more legality and parsing than is within the province of the beat cop. This calls for, at the very least, the judgment of someone several ranks above a beat cop, and in fact in most places gets passed from the police department’s hands to the prosecutor.

    I understand the anger at the result that we all saw. This old guy did what most of us hope we could do ourselves in his situation, and was arrested for it. My only point here is that there is no blame to be assigned to the cop who arrested him. Application of a legal doctrine that overrides the criminal liability for having committed a crime is not a simple thing that a beat cop is expected to handle.

    There have been times here in the USA when a cop has not arrested someone in the same circumstances involving a death. This usually happens in small jurisdictions, in which everyone knows everyone, the cop knows the prosecutors and judges, and still that cop risks his career for doing so. Or, someone very high in police rank (or a judge or prosecutor) got involved and made the decision. You will seldom see such a result in a large jurisdiction where things are handled by the book.

    I hope there’s a very successful GoFundMe page for this old guy. He deserves that. I would also like to see several large but unexplained explosions in a certain Travelers community. They deserve that.

  • bobby b

    Niall Kilmartin
    April 11, 2018 at 8:59 am

    ” . . . the typical CSI picture of a couple of competent (and good-looking) people turning up during the same night while a local policeman is still present . . . “

    You were correct to say that we’re watching different movies.

    Minneapolis cop friends of mine, (who work in one of the very large metropolitan areas of the country and have money and equipment and personnel in quantities that make other cops drool) laughingly call CSI “Star Wars For Cops.”

    Our version of CSI is called the BCA (Bureau of Criminal Apprehension). I found this quick blurb on their website:

    “ . . . agencies typically receive results back from the BCA on DNA testing within an average of 49 days. Fingerprint turnaround time is about four months.”

    They were bragging about this. Places like NYC or Miami might be a bit faster, but not by much.

    As for the rest of CSI’s toys – the mass spectrometers, the audio filters, etc. – well, they watch CSI and drool.

  • JadedLibertarian

    Part of the reason for all this Monday-morning quarterbacking appears to be some sort of pearl-clutching middle-class horror at the concept of being arrested – as though being suspected of wrongdoing is some sort of confirmation of it. Guess what? I’ve been arrested, both in the UK and in the US, although not for anything like this. It’s a bureaucratic procedure, which can be un-done almost as quickly as it was done.

    Arrests will show on an enhanced Disclosure check in the UK Llamas. Good luck ever working with kids or other “vulnerable” groups if “arrested for murder” pops up during one.

  • llamas

    @ JadedLibertarian, who wrote:

    ‘Arrests will show on an enhanced Disclosure check in the UK Llamas. Good luck ever working with kids or other “vulnerable” groups if “arrested for murder” pops up during one.’

    You mean, I can’t work with kids in the UK _ ever again? 😯

    I’m not sure quite what an ‘Enhanced Disclosure Check’ is – no such a thing existed when I lived in the UK, but if it is, what I suspect it is, then that is a grievous violation of basic civil rights and I am amazed that the people stand for it. A mere accusation is taken as evidence of past wrongdoing, or of the likelihood of wrongdoing in the future? Kafka or Kim Jong-Un would be proud – and you should be ashamed of yourselves as a nation for letting this come to pass.

    However, leaving that aside, are you suggesting that the police should not arrest people because to do so might have a negative impact on a future ‘Enhanced Disclosure Check’? Surely not. You’re tilting, at the wrong windmill.

    llater,

    llamas

  • Mr Ed

    llamas

    However, leaving that aside, are you suggesting that the police should not arrest people because to do so might have a negative impact on a future ‘Enhanced Disclosure Check’? Surely not.

    Isn’t that a bit of a strawman there? It seems to me that he is saying that it is wrong to arrest people without a lawful basis AND it has long-term consequences above and beyond the initial wrong of a wrongful arrest, which is, let’s face it, a licensed form of kidnapping. Yes, in the UK, mere accusations not proven can be held against you. It is appalling. Lord Birkenhead got rid of the Grand Jury system in England, AIUI, because he felt it wrong that someone innocent could go to their grave with the stigma of having been ‘indicted’ even if later acquitted. The Scots still have the opaque verdict of ‘Not Proven‘, which a former Labour MSP Michael McMahon (PBOH) sought to abolish, but he has lost his seat.

    bobby b

    To arrest, police need to be able to show that there is probable cause to believe (A) that a crime has been committed (B) by the suspect. Here, we get into what I said above about non-proof of a crime versus a defense to criminal charges.

    You are applying what I assume is a test in American law. I have already set out what English law requires, a ‘reasonable suspicion’ that an offence has been committed. On the night of the event, the police would claim, despite the evident facts, to have a ‘reasonable suspicion’ that unlawful and malicious wounding etc. had occurred, whereas given the situation, it would appear that an old man somehow overcame an intruder and the facts suggested self-defence, so the police acted, in my view, on an unreasonable suspicion and simply decided to arrest on the basis of whatever pretext best fitted the situation, i.e. arrest then justification is my concern.

    Later still, when more facts were known and the suspect’s long criminal past would have been known to them as a habitual burglar and criminal, putting the event in a context beyond doubt, the police would have had even less cause for believing that the killing was with the malice required for murder, so arresting him for murder (a starting a new time limit running to detain him, had they sought to), was all the more egregious an insult to the liberties of England.

    The police could certainly have sealed off the room in which the event occurred and required him to move out, and could have asked to have interviewed him under caution to establish the necessary issues without an arrest.

  • Deep Lurker

    My working theory for some time now has been that a large and influential segment of would-be elites consider self-defense to be a malum in se crime rather than a basic human right. They can’t quite impose that view outright without triggering a backlash, but they’ve been working diligently for decades to shrink the legal right to self-defense into meaninglessness.

    Restrictions and bans on guns and knives is a part of it. Another part is presuming any claimed act of self-defense is actually criminal and making the hurdles against a legal self-defense claim higher and higher until such claims become something available in theory but never in practice.

    Another aspect is the way that schools (in the US, at least) treat any fighting between students as an offense by both parties. And a claim of self-defense there is treated as an aggravating factor rather than a justification. This was present back half a century ago, and the more recent move to “zero tolerance” can be seen as a move to crack down on insufficiently-enlightened teachers and principals informally letting the crime of self-defense slide by.

    Yet another aspect shows up in the treatment of police shootings. If police use their guns to enforce the law (e.g. in no-knock raids) that’s considered right and proper. But if a cop misuses his issue sidearm for self-defense, that’s a crime, a scandal, and a betrayal of the trust society extended to the cop by allowing him that gun. (The situation is further complicated by cops claiming a right to special treatment and to more lenient standards.)

    Finally, there are the airline “security” measures that seem aimed less at stopping terrorists from producing another 9/11 and more at suppressing the passengers from reacting with violence if any such terrorists manage to slip through. Because the terrorists are aggrieved people who are guilty only of regrettable excess, while the other passengers are atavistic barbarians guilty of the horrific crime of self-defense that shakes the foundations of Civilization Itself.

  • Roué le Jour

    Llamas,
    I find your comments both interesting and informative and I look forward to reading them. However, your experience is in the US and in the UK policing is “different”.

    In the UK, police ignore young girls claiming to have been raped by “asians” while treating with the utmost seriousness claims by middle aged women that they were raped forty years ago by a television personality.

    In the UK, police routinely intimidate anyone trying to report an incident that the police know they will not be able to “close” because it makes their stats bad.

    In the UK, police know perfectly well that creating an arrest record for a middle class person is a serious matter with potentially serious consequences and they don’t give a damn.

    And finally, in the UK, police will not touch “travellers”, who are little more than roaming gangs of thieves who pitch camp illegally and prey on nearby residents before moving on. The two guys committing the burglary were “travellers”.

  • Paul Marks

    Julie – how was Scotland able to function for centuries without either plea bargaining or people kept “on remand” in prison for long periods of time without trial.

    If a legal system is ALLOWED to be abusive then the people in it soon believe that “there is no other way” and that it would be “impossible” to function properly.

    Glasgow was hardly a city of peaceful people – but, I repeat, it functioned for centuries without plea bargaining and without people being held for long periods of time without trial. Now, by the way, was there any Poor Law tax in most of Scotland till 1845.

    West Germany was also a “land without plea bargaining”.

    As for New York – if they have too many “crimes” to deal with, perhaps they should repeal some of their laws. As Tacitus reminds us “the more laws there are, the more corrupt the state is”.

  • Mr Ed

    Glasgow was hardly a city of peaceful people – but, I repeat, it functioned for centuries without plea bargaining and without people being held for long periods of time without trial.

    Indeed, this provision of Scots law goes back to 1701 (a few years before the Act of Union) but it is under attack, the 110-day limit of time in prison before trial has been extended to 140 days for High Court criminal trials, and as this article from 2015 indicates, it is being abused (within the legal system) by further extensions being granted by judges.

    A simple compromise could be that if a judge granted an extension past 140 days and there was an acquittal, the judge and prosecutor involved could serve double the time the innocent spent on remand over the limit as extended past the 140-day limit. That sounds like a fair safeguard to me.

  • llamas

    Roue le Jour – thank you for your kind words, that \has meaning to me.

    better to say, perhaps, that my experience of UK policing is out-of-date. It didn’t used to be like this, oh, my word.

    I am partly-aware of some of the situations you list. Some of these same issues, albeit in different forms, exist in the US also.

    However, I’m not sure how the situation is improved by calls for police favouritism in this case. Surely, the solution to issues of police favouritism is less favouritism – not more? If the goal is ‘to seek and preserve public favour, not by pandering to public opinion, but by constantly demonstrating absolutely impartial service to law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws’ then you need to go after and eliminate failures to meet that goal – not argue for more failures in cases which you find sympathetic?

    And, on a larger point – what’s it going to take to get the UK police back to operating on those principles? Can it even be done? Inquiring minds, want to know.

    llater,

    llamas

  • Roué le Jour

    Llamas,
    I absolutely support the principle that “all are equal before the law”, but as in “Animal Farm” it seems now that some groups are a great deal more equal than others. I hold out no hope that this is going to change, the police have been studiously ignoring travellers for decades.

  • NickM

    Roue,
    It is worse than that. Now at least three times the burglars’ mates have vandalisingly and threateningly erect a “shrine”. Police haven’t felt a single collar during this disgraceful episode. I doubt these scum who venerate a career criminal in this way have any respect for the law. They don’t need to because “the law” clearly “respects” their depravity. But what do you expect from Ms Dick’s Met? She was in control of the operation that shot dead a completely innocent electrician on his way to install an alarm system… Time to recall Inspector Brackenreid from Toronto.

  • Lots of interesting thoughts here. (llamas, April 11, 2018 at 10:47 am)

    Well, we can agree on that, if perhaps not on that much else. 🙂

    None of these things would obtain, necessarily, if he were to go voluntarily down to the station to ‘help the police with their inquiries’. (llamas, April 11, 2018 at 10:47 am)

    – Firstly, the key word there is ‘necessarily’. Obviously they would all be available to someone who was ‘helping police with their enquiries’ unless explicitly withheld (or implicitly distracted from) by police.

    – Secondly, they seem on the whole to be less about protecting the OAP from prosecution than about protecting any evidence the police gather against him from reasonable doubt. All this ‘protects’ the OAP in ‘the court of public opinion’ – but only by denying him certain technical protections in an actual court. It ensures that “no charges” means “innocent”, not “evidence was tainted or not gathered in time”.

    This obliges me (can you argue it shouldn’t?) to interpret your

    if it were me, I would want to be arrested,

    as being true only because

    I would not say a word about the matter at issue beyond name, rank and serial number until I was sitting in a nice warm room with a cup of tea, a running tape recorder, and a lawyer at my side.

    This of course fits well with your reference to

    the lecture ‘Why you should never talk to the police’ by Professor James Duane,

    I saw that years ago – and think now what I thought then: there are grave problems with a system whose logic directs wholly honest members of the public never to talk to the police. I sympathise with bobby b’s description of real policing versus a CSI episode (shades of Schwarzenegger’s “Last Action Hero” 🙂 ) and quite see that “no time to think” may excuse much, but police will have much less time to think when every such OAP and every neighbour of his refuse to say anything at all unless arrested, taken to the station and kept there till their lawyer arrives. When police refuse to show sane discretion, witnesses will refuse to trust them, not because they are dishonest but because they are honest. The police will be the losers. Do you think the police can operate in a society where not only experienced criminals but absolutely everyone treats a question from a policeman as a reason to say nothing at all – until and unless compelled to be at the station, and their lawyer is there too?

    The logic of your position would seem to imply you thought Oregon police acted wrongly in the case linked to by JadedLibertarian April 10, 2018 at 7:55 pm, where:

    Ford remains cooperative with investigators and was not arrested. The investigation, which is ongoing, will determine whether she acted in self defence and if she’ll face charges. Prosecutors say the investigation is routine, and it takes time.

    I instead suggest that the police should reward members of the public who “remain cooperative with investigators” by using common sense on when to arrest.

    what’s it going to take to get the UK police back to operating on those principles? Can it even be done? Inquiring minds, want to know. (llamas, April 11, 2018 at 12:42 pm

    Me too. You have my (sole and minor) suggestion above to critique.

  • Roué le Jou

    Nick,
    Yeah, the Telegraph has a good piece on it up now.

    If the police want to make themelves useful, they could mount an armed dawn raid on wherever the pikeys are trespassing and give them ten minutes to get their shit on the road before the vans are torched. I’m dreaming, of course. The police are scared of pikeys. Perhaps we could get some Italian cops in, they seem to know how to deal with gypoes.

  • terence patrick hewett

    It was Terry Pratchett who said words to the effect that:

    “There is no law for those who make the laws: no law for those who willfully break the laws: but there is law for those who pathetically think that there should be law.”

    How we are to rid ourselves of the swine above and below who prey on us has got me stumped: but we must find a way or we as a country are lost.

  • llamas

    Niall Kilmartin – many questions there.

    “Secondly, they seem on the whole to be less about protecting the OAP from prosecution than about protecting any evidence the police gather against him from reasonable doubt.” Possibly true, except that they will tend to protect all evidence that the police gather, regardless of what it suggests – and as the OAP is innocent, or acted lawfully, hard to see how this could harm him.

    I don’t want to be arrested just because I will choose to remain silent until I am being properly questioned under caution with a lawyer present, but for all the other reasons I stated, all of which tend to protect me (as long as I am innocent). The police can and do make mistakes, rush to judgement, or head down false lines of inquiry as investigations develop, and I have the right to be protected from the possible negative consequences of those things.

    ‘Why you should never talk to the police’ is a snappy soundbite, but as you will know from watching the video, the real message is ‘don’t talk to the police if you think you may be a suspect without proper safeguards in place’, and in practice that means that you will be arrested. The police want to safeguard their investigation also (as they should) and the only way to get you in a proper investigatory condition is to have you under arrest.

    Regarding the Oregon case that JadedLibertarian linked, it’s interesting to note (if you read the entire history of the case), that the shooter, Ms Ford, initially cooperated with police and was not arrested, but soon after stopped cooperating with police and refused to answer any more questions – when the post-mortem revealed injuries which might tend to cast doubt on her version of events. The end result is that the prosecutor handed the case over to a grand jury, which declined to indict her. FWIW, I think that this one could go either way, but on balance, I think she should have been arrested, based on her own testimony. She did not shoot the man at once as a result of being attacked or threatened, but in fact left the location where he was, retrieved and checked a handgun, returned to the location, and then claimed to have shot him because she feared that he was about to attack her. In fact, she shot him while he was laying prone and likely face-down. This may well be acceptable under Oregon law, in fact I think it likely is, but her story of suddenly being threatened enough to kill him does sound rather thin, and if that part is thin, what else is thin also? Turns out the man was mentally ill and drunk, and not some lowlife scumbag with a long criminal record.

    Regarding ‘the police should reward members of the public who “remain cooperative with investigators” ” – Excuse me? You want the police to have the discretion to dangle ‘favours’ in front of citizens to get them to cooperate? No, Thank You. The onus is (should be) on the police to treat everybody equally, and to discover ‘the Queens justice’ regardless of the cooperation or otherwise of those they accuse or suspect. No citizen should be required to offer the police the slightest assistance in investigating them, nor be offered ‘rewards’ for doing so. This is the surest route to corruption of the police function that I can imagine.

    llater,

    llamas

  • Julie near Chicago

    bobby,

    Thank you very very much for your replies. Good to see things from your side of the fence, so to speak.

    Thanks also for notice, llamas, and to Paul for your points. I know my questions were O.T., but I’d love to see a full airing here sometime.

    .

    ETA: I too would rank this as one of the top-notch discussions here. Very interesting! (Hardly unprecedented on Samizdata, of course. *g*)

  • Julie near Chicago

    Forgot to say. llamas, April 11, 2018 at 10:47 am, I too was quite interested to see your recommendation of the “Don’t Talk to the Police” video. I saw that some years ago, and as I read the comments I got to wondering what you would think of it.

  • Alisa

    I very much appreciate the thoughtful, informed and dispassionate comments from Llamas and Bobby.

    That said, it really is as JL put it: ought vs is. The ought will obviously be different for different people – mine would be a civil society that polices itself with only minimal help from government, while others may have different ideas, including total approval of the current status quo.

    But unlike the ought, the is is largely uniform for all of us, and that includes police forces operated by governments – which makes some of the remarks here to the effect that citizens should be able to trust the police sound a bit naïve, as this can only be possible if we trust our governments. Theoretically possible I suppose, but…nope, not even theoretically.

    As Fred Z suggests, policemen are government employees. But although he is being grossly unfair with the gist of his comment, the sad truth is that even the best individuals working for government (and especially for agencies with the license to use various degrees of violence towards their fellow citizens) can do very little if anything to instill real (as opposed to naïve) trust towards those agencies. So this is also about the divide between civil society (or whatever is left of it) and the state, and no person can live with one foot in the former, and the other in the latter: when it comes down to the use of violence, it is an either/or proposition, with all which that implies.

    Note that I am not saying anything like ‘stop complaining – this is the way it is and there’s nothing we can do about it’. We should demand change and improvement, but on the other hand, there is only so much improvement that we can realistically expect given what the system is.

  • Stephen W. Houghton

    The real solution is not to blaime the cops but reward the home owner.

    A) a subscription fund to reward him should be started.
    B) A petition should be started asking the Queen to knight him for defense of the law and the realm.

  • Firstly, I am against the arrest on principle. Secondly, the arrest of the 78 year old was legal.
    A person was dead. The survivor is reasonably a suspect, his account was needed and he cannot give a statement because as a suspect he has a right of silence lacking to a mere witness.

    There is room in the process to interview under caution without arrest, but the power to take by force a number of samples is dependent on arrest and the provision of a solicitor to a place of residence for a suspect is difficult.
    The legal test for arrest is reasonable grounds to suspect a crime coupled with a necessity test that no other means will suffice, with the arresting Officer not required to run through why a check list of alternatives are not viable.

    The flip side of not just believing what a rape victim says is sometimes a burglary victim who successfully defends themselves gets arrested as a suspect too.

    The Law could be different. Castle law, stand your ground law, etc. It’s not though.

    If you believe it should be different, hitching about it on the comments section of your favourite blog achieves nothing.

    We all need to force your MP to change the law.

  • Martin’s mistake was not just burying the body and telling no one.

    The lad’s mates weren’t gonna go to the cops admitting they we shot mid burglary.

    Martin should have sued the police for failure to protect him after he’d did call them.

  • The Police have all those faults but some do willingly risk death or actually die to keep an ungrateful public safe.

    They are ordinary humans with no more flaws or failings than anyone else whose mortgage depends on a certain degree of compliance to a hierarchy.

    This does not mean the institution should not be changed or switched out for another better one.

    Only Marxists believe in government perfection.
    Adam Smith only required a tolerable administration of justice.

  • Martin’s mistake was not just burying the body and telling no one. (Itellyounothing, April 11, 2018 at 8:20 pm)

    Without exactly echoing you, I feel this stresses my main concern. Both when tried and when denied parole, Martin’s ‘fault’ was to ignore the advice in James Danmore’s video, whereas Warboys, when his parole hearing approached, abruptly starting acting penitent – as any criminal would. A criminal justice system that punishes one and rewards the other invites mockery.

  • Stephen W. Houghton

    Here is the site to petition parliament. https://petition.parliament.uk/petitions/check

  • Fraser Orr

    @bobby b
    Thanks for your great insight on these things, I learned a lot. However, I did want to pursue the matter of plea bargaining with you.

    The fact that we don’t have enough people to fully try court cases is primarily due to the fact that we have far to many laws in the first place. To use the example you yourself gave — possession with intent to sell — that should be a class in an MBA degree not a crime.

    I also have noticed recently how much the aphorism that a grand jury would indict a ham sandwich, seems to be true. All semblance of decency and law seems to have been lost here, where the goal is to get Trump and his circle, irrespective of any sense of justice. And it seems that if a prosecutor wants to get you, he can, because there are so many laws to break, and he can add a whole layer where he gives you opportunity to be tricked into breaking the law via process crimes. This arises out of the fact that there are just too damn many laws.

    It is also a consequence of that fact that the courts are run by civil servants and are therefore brutally inefficient and ineffective. I know you are a great free market person, so I am curious if you have thought about what, and to what extent the court and criminal justice system could be privatized?

  • I agree with Alisa and others, both on the usefulness of this discussion in describing how the system works and/or how an ex-policeman thinks of it, and her opinion that it ought not to work like this.

    You want the police to have the discretion to dangle ‘favours’ in front of citizens to get them to cooperate? (llamas, April 11, 2018 at 4:49 pm)

    Others (e.g. Roué le Jour, April 11, 2018 at 12:10 pm) have already pointed out that the UK police currently act as if they have this and much other discretion, and abuse it, which fuels much of the anger over this. (I mention above the similar implausibly-wilful ‘gullibility’ of the UK parole board.) So they want this discretion to be diminished and/or used less corruptly.

    I agree with those commenters, but I am arguing that your objection

    No, Thank You. The onus is (should be) on the police to treat everybody equally, and to discover ‘the Queens justice’ regardless of the cooperation or otherwise of those they accuse or suspect.

    is an error – that any real police force, even when not deserving the criticisms of Roué et al, will inevitably have, and will properly exercise, much discretion in some areas, while in other areas it may lack discretion not to dangle such inducements.

    Firstly, as regards discretion, in this particular case, either current UK law says the police must arrest the OAP or it does not – if not, the police had discretion. Mr Ed argues, in the very first comment of this thread, that our law does not – that the police had discretion – and several have agreed. If I’ve read the thread correctly, only bobby b has argued against this, from the US law situation, since the ‘probable cause’ elements of a crime are technically present and the countervailing defence elements, though valid, are above the pay grade of the “10-minutes on this, then on to next incident” policeman making the call. This would seem to imply that a senior enough officer, if on site, would have discretion in the US, though the likely lower-ranked actual officer did not (but bobby will speak for himself – if he wishes to make this rapidly growing thread still longer 🙂 ). It’s not clear to me it answers the UK law question.

    Secondly, even when the police have no discretion, “regardless of cooperation” is not IIUC a principle of the UK legal system. Our mandatory caution is: “You are not obliged to say anything but it may harm your defence if you do not mention, when questioned, something you later rely on in court.” and (again, IIUC – anyone feel free to correct me if I am wrong) there is no requirement for the police to delay cautioning you until you are

    sitting in a nice warm room with a cup of tea, a running tape recorder, and a lawyer at my side.

    The Criminal Justice and Public Order Act 1994, says

    Adverse inferences may be drawn in certain circumstances where before or on being charged, the accused: fails to mention any fact which he later relies upon and which in the circumstances at the time the accused could reasonably be expected to mention; …. fails to account on arrest for objects, substances or marks on his person, clothing or footwear, in his possession, or in the place where he is arrested; …

    So you can obey James Danmore but a UK barrister can advise a UK jury that your doing so is suspicious. However the good news is that “There may be no conviction based wholly on silence.” – you can’t be convicted only because you followed Danmore.

    I thank everyone for the learning opportunities this thread has given me – and appreciate they may not be over yet.

    [This brief summary of how police questioning, cautioning, arresting, helping-with-enquiries and charging can interact in the UK may assist the non-UK-lawyers among us.]

  • the other rob

    We’re all hypothesising about ideals, while ignoring realpolitik.

    Where we live, we have at least one DA on record as saying (more or less) “If it’s a living, law abiding, citizen versus the corpse of a repeat offender, who do you think that I’m going to believe?”

    Geography matters. I’m not where I am by chance.

  • bobby b

    Fraser Orr
    April 11, 2018 at 9:32 pm

    ” . . . to what extent the court and criminal justice system could be privatized?”

    Interestingly, the distinction I made to Julie NC above – that plea bargaining is due to inadequate court infrastructure and staffing and not inadequate prison space – exists because we in the USA allow for privately-built, -owned, and -operated prisons. Between Corrections Corporation of America and a few other large operators, we have hundreds of private prisons across the country, all of which simply contract with government to house prisoners on a per-day basis. As the need for beds fluctuates, prisons open and close and staffing grows or shrinks (which can be done at a private prison because they’re not captured by public prison-guard unions) without need for public investment.

    And I’d agree that part of our problem stems from having too many criminal laws. Specifically, we need to get rid of the myriad drug laws. (My defense practice was at least 25% drug-related and this included many people I’d never think of as criminals, which tells me we’re off-base in emphasizing drug use as a crime.) But, in the state systems (as opposed to the federal system run by the US Attorneys Offices), which are the systems in which 90% of defendants find themselves, we don’t see a huge problem with crime-inflation. That’s mostly found in the federal system, with all of their process-related crimes (what we call the Martha Stewart crimes) that they can use when they can’t prove a substantive crime.

    As to further privatization of the court system, much as I think it would be more cost-effective, I doubt it would pass constitutional muster. The exercise of state power over our liberty pretty much has to pass through the judicial branch. Many jurisdictions already contract out for private attorneys to act as their prosecutors, so we have privatization there already. For the rest of the system – which is the biggest chunk of expense – I don’t think we need to even fight the privatization battle. There’s an easier way to achieve the same potentially-huge savings: we just need to end public employment unionization. Once we stop funding $100k clerk salaries and unfireable employees, we can boost employment where it’s needed.

    Personally, I sort of prefer an overworked, maxed-out-to-capacity criminal justice system. Keeps ’em busy, maybe too busy to be looking for more things to do and more crimes to invent, plus it keeps the pressure on to make plea deals that aren’t merely the state completely crushing us with its power.

  • bobby b

    Niall Kilmartin
    April 11, 2018 at 9:55 pm

    “This would seem to imply that a senior enough officer, if on site, would have discretion in the US, though the likely lower-ranked actual officer did not . . . “

    Yes, I agree with this, with the caveat that “discretion” has more than one applicable meaning here.

    A cop has “discretion” – i.e., the power – to decide to arrest or not arrest. This power is usually spelled out in statute here in the US.

    But a cop also has to know what his superior thinks about things, and what his superior thinks, and what her superior thinks, all the way up to the mayor (or whoever leads.) He must know his departmental policies, guidelines, best practices, unspoken assumptions . . .

    I can walk into court representing a corporate client and have the discretion – the power – to bind my client to whatever I say. But if I say the wrong thing, that discretion might end that same day, along with my job. I have the power – but I’m also supposed to act as an agent with my principal’s wishes and interests foremost in my mind.

    So, saying that a cop has the legal power – the discretion – to make or not make an arrest doesn’t end the analysis. You also must ask what principles and philosophies his employer directs him to serve. I don’t live there, but it doesn’t sound as if the London powers that run the cops are all that keen on releasing white guys who hurt their favorite protected groups. No cop who wants to remain employed is going to actively disobey his department. Acting accordingly is also part of a cop’s “discretion.”

  • bobby b

    “Where we live, we have at least one DA on record as saying (more or less) “If it’s a living, law abiding, citizen versus the corpse of a repeat offender, who do you think that I’m going to believe?””

    And that’s exactly the jurisdiction in which a cop is more likely to exercise his discretion to NOT make an arrest, knowing that his choice will be backed up by the people to whom he must answer. I’m betting the London CPS head has never publicly said such a thing.

  • llamas

    Many fine points being made here. I’ll only chime in one of them, namely, where Niall Kilmartin wrote:

    ‘Secondly, even when the police have no discretion, “regardless of cooperation” is not IIUC a principle of the UK legal system. Our mandatory caution is: “You are not obliged to say anything but it may harm your defence if you do not mention, when questioned, something you later rely on in court.” and (again, IIUC – anyone feel free to correct me if I am wrong) there is no requirement for the police to delay cautioning you until you are
    sitting in a nice warm room with a cup of tea, a running tape recorder, and a lawyer at my side.
    The Criminal Justice and Public Order Act 1994, says
    Adverse inferences may be drawn in certain circumstances where before or on being charged, the accused: fails to mention any fact which he later relies upon and which in the circumstances at the time the accused could reasonably be expected to mention; …. fails to account on arrest for objects, substances or marks on his person, clothing or footwear, in his possession, or in the place where he is arrested;’

    I’m old enough the remember in the English law that this was NOT the case – the whole ‘adverse inferences’ malarkey is the bastard child of the first PACE (1986, IIRC) and it overturned 300 years of legal principle. Prior to that, the ‘mandatory’ caution contained no such ominous warnings about ‘harming your defence’. And if a barrister attempted to impugn the accused’s defence by saying ‘well, why did you not mention this at the time you were arrested?’, he would earn a solid rebuke from the judge, together with a stern reminder that the accused had the privilege to defend himself however and whenever he pleased and that, specifically, no negative inference was to be drawn from the time or manner in which he chose to defend himself.

    All that went out of the window and now you have this profoundly-prejudicial concept where the prosecution is allowed to impugn the defence of the accused, not because of the nature of the defence itself, but because the accused was not sufficiently helpful to the police in investigating and prosecuting him. It turns the idea of ‘innocent until proven guilty’ on its head, and imposes a previously-unknown and highly-prejudicial burden on the accused to be ‘cooperative with the police’ – while placing no corresponding burden whatever on the police to be ‘cooperative with the accused’. This should, fundamentally, be a highly-adversarial relationship, and this invidious principle effectively places a heavy thumb on the scales of justice in favour of the police and prosecutors. Again, the British people should be ashamed of themselves for allowing this to be put over on them.

    llater,

    llamas

  • llamas

    bobby b. wrote:

    “Where we live, we have at least one DA on record as saying (more or less) “If it’s a living, law abiding, citizen versus the corpse of a repeat offender, who do you think that I’m going to believe?””
    And that’s exactly the jurisdiction in which a cop is more likely to exercise his discretion to NOT make an arrest, knowing that his choice will be backed up by the people to whom he must answer. I’m betting the London CPS head has never publicly said such a thing.

    And – just to be clear – that’s the attitude I would want my local prosecutor to take as well (and he does 😉 ) but only after it has been clearly-established that that is, in fact, the case. For whatever reason, this part of the world seems to spawn some highly-unusual murder cases where initial claims of self-defense, which appear on their face to be entirely-believable, turn out to be something else entirely. About 10 years ago, we had the case of Nancy Seaman, a much-loved elementary-school teacher who despatched her husband in a prolonged attack with a knife, a sledgemhammer and a hatchet. When his body showed up wrapped in a tarp in the back of her car, she claimed years of physical abuse which culminated in an attack in the family garage, during which she snatched up a hatchet that just happened to be lying there to defend herself. Couldn’t wish for a more-sympathetic murderer, or a less-likeable victim – to hear her tell it.

    Until the surveillance video showing her buying the murder weapon at a local Home Depot the day before the murder. Ooops. That one small piece of evidence, which took many days to track down, unravelled her case like a woolly jumper.

    Many times, these matters are just exactly as they appear to be, but surprisingly-often, they are something-else entirely. This is why it is only reasonable and prudent that there be a certain amount of investigation before coming to a conclusion. Sure, a well-liked OAP with no previous vs a well-known career criminal, most likely, is going to be just exactly what it appears to be. But we should demand a better standard of justice than ‘most likely’.

    llater,

    llamas

  • JadedLibertarian

    That’s all well and good Llamas, but saying someone shouldn’t be arrested initially for what appears to be self-defense is not the same as saying the case shouldn’t be investigated.

    It is quite possible to interview Mr Osborn-Brooks as a witness to the death of Mr Vincent, conclude there was no crime and not arrest anyone, but then change your mind and arrest him later as more evidence becomes available. For example, lets suppose it turned out they knew one another and had a well known feud. That would change things. People go from being witnesses to suspects all the time.

    According to Wikipedia the motto of the Metropolitan Police is the sinister sounding “Total Policing”. If it were to adopt wholesale what you’re proposing, perhaps it should become “We arrest everyone“. Yes, I know you’re not proposing rolling this approach out to other crimes since murder is a special case, but on principal I object to arresting people who might be guilty of something and then de-arresting them when you find you’re wrong. Everyone might be guilty of something, and probably are guilty of several things if you look close enough. You should only arrest people for specific things that you have a reasonable suspicion they are in fact guilty of.

    Otherwise why not arrest the entire UK, then de-arrest them when you’ve established to your satisfaction they’re innocent?

  • Mr Ed

    we should demand a better standard of justice than ‘most likely’.

    Should we not demand simply that the police follow the law? And have a reasonable suspicion before making an arrest, rather than viewing it as being a matter for their convenience? I see no basis for a reasonable suspicion in the facts of this case. Either we have law to uphold liberty, or we have nothing.

  • JadedLibertarian

    For some reason this reminds me of a story I heard from a colleague in India. He’d found an injured man by the side of the road and (the ambulances being unreliable) had taken him to hospital himself in a taxi.

    As soon as they heard what had happened the doctors at the hospital said to the good Samaritan “Get the fuck out of here!”. They weren’t being hostile. They wanted him to leave before the police arrived.

    Apparently if someone who looks like they have money stops to help anyone, and the police arrive, they will immediately arrest the moneyed altruist before demanding a bribe to let him go. After all, he was the first person on the scene so he might have been the one who injured the victim…

  • Alisa

    My defense practice was at least 25% drug-related and this included many people I’d never think of as criminals, which tells me we’re off-base in emphasizing drug use as a crime.

    That surprised me, Bobby. What type were the majority of the crimes (minus the Martha Stewart “crimes”)?

  • llamas

    JadedLibertarian wrote:

    ‘If it were to adopt wholesale what you’re proposing, perhaps it should become “We arrest everyone“. Yes, I know you’re not proposing rolling this approach out to other crimes since murder is a special case, but on principal I object to arresting people who might be guilty of something and then de-arresting them when you find you’re wrong. Everyone might be guilty of something, and probably are guilty of several things if you look close enough. You should only arrest people for specific things that you have a reasonable suspicion they are in fact guilty of.’

    and, while not wishing to be discourteous, would say – come now. I know you can do better than this, you’ve proved in already in this thread alone. Do me the courtesy of bringing better game than that.

    Nobody is talking about ‘arresting people who might be guilty’. What we’re talking about is the fundamental principle of arresting people when there is reasonable suspicion/probable cause (pick your jurisdiction) to believe that a) a known and specifiable crime has been committed and b) the person to be arrested committed it. Nothing more. In this case, at the time, both conditions were amply met – a highly-perforated body, and a man who is freely admitting, he did the perforating. At this point, questions of guilt, innocence, justifiable, self-defence and all the rest of it, are simply not germane – and, as I will expand on below, they should not be anyway. These matters are not the business of the police. A man has been stabbed – self-evidently, a crime, even if a court were to later decide that the man who did the stabbing was not criminally liable for doing it – and the man who did the stabbing is standing there, saying he did it.

    So you make another fundamental error when you conflate evidence of a crime with questions of guilt, and this is made worse because bobby b. explained the difference in this very thread. It is not the job of the police to assess guilt or innocence in law, and it should not be, and you don’t want it to be, if you’re honest. Their job is to investigate crime and place the likely criminal before the courts. The court, either directly or through its officers, will decide whether the perpetrator of the crime is guilty in law. You are failing to separate, these two fundamentally-different areas of the case – the facts of the case, and question of guilt or innocence – but we must keep them separate (what is known in the US as the separation of powers) else the liberty of the individual is seriously threatened. The alternative – that we let the police decide whether or not a suspect is criminally liable – well, I put it to you. Is that what you want?

    As to the timing of the arrest – well, we could always have arrested him later if it turned out to be different than we thought – while true, we have to consider that this is one of those cases where physical evidence and the story that the suspect has to tell will be pivotal in investigating what actually happened, and arresting the suspect is absolutely hands-down the best way to secure that evidence and ensure its probative value. Blood-stains, clothing, injuries and the suspect’s description of what happened, taken in controlled circumstances and with full provision for his rights and security, are likely what got him bailed and discharged earlier, rather than later, as I described above.

    llater,

    llamas

  • JadedLibertarian

    I’ve read back through this (lengthy!) thread and I think I’ve misunderstood something that’s lead to us talking at cross purposes. I can see where you’re coming from Llamas, and I wouldn’t be surprised if as things stand what you say is absolutely true.

    Speaking purely in the hypothetical, I would argue that finding a well aerated burglar in the immediate vicinity of a person’s home is not, in and of itself, evidence that a crime has been committed. Now in Britain and the US the position may well be that slaughtering home invaders is illegal, but we’ll let you off with it if you can provide a good excuse. I’m not a lawyer so I’m ill equipped to answer such a question. If this is the case, then if someone has been stabbed by definition a crime has been committed (unless they did it to themselves).

    Perhaps I’m being overly simplistic here. Mr Vincent had clearly died at the hands of another but due to his status as a well known robbing bastard, I assumed that there is at least one way this could have happened which involved no crime being committed i.e. self defense.

    So is justifiably killing burglars a crime for which you have a good legal defense, or is it not a crime in the first place? I think this is the source of our argument. I’m quite willing to accept that it is the former, but I believe it should probably be the latter.

  • Fraser Orr

    @bobby b
    Yeah, those private prisons do have a terrible reputation. Of course there is a deeper question of why prison is such a good punishment. For sure some people who would hurt others need to be locked up, but the vast majority of prisoners don’t fall in that category, surely there are better punishments than locking them up for years and years and years. It wastes their capabilities and costs a ridiculous amount of money.

    As to the judicial system itself, for sure there are some parts pertaining to the exercise of the state’s monopoly on violence. But they are really just a small amount of the system: the ability to inflict punishment, the ability to gather evidence forcefully (by subpoena, search warrant, interview and perhaps a few other means), the ability to hold pending trial, the ability to require jury service. And that is about it. If these functions were isolated and everything else was privatized surely we’d be better off?

    For example, the court buildings, clerks, security, the majority of criminal investigation (using the force powers delegated when necessary), all the background work that goes in to sentencing, legal research, parole boards, and on an on. Surely separating out the actual monopoly state powers into one limited division that only acts on that monopoly, and having private entities request the use of this, would be an additional guard against the misuse of those powers?

    One can easily imagine companies offering all the paraphernalia of a court system without the powers, and then have them competitively bid for the business of the various types of court we have, would surely dramatically reduce the cost and efficiency of criminal justice?

    After all, a lot of contract law is privatized — through mediation, arbitration etc. The mediators and arbitrators do the bulk of the work, but ultimately rely on a small amount of state power to enforce the final product. Surely that is the way it should be, and surely something similar to that could work in the criminal justice system? In a sense plea bargaining is a form of this. The prosecutor is in the market for the good of “maximizing punishment of miscreants per dollar spent” the defense is in the market for the good of “minimizing punishment of clients”, so the plea bargain allows the trading of cost against these two goods and finding an equilibrium point. (I’m not a fan of this, BTW, but that does seem to be what it is.)

    No doubt you are right though — not practical, and getting rid of union power would be an actual practical thing.

  • llamas

    @ JadedLibertarian – fair enough. And I do see where you’re coming from, it’s just that you, and quite a few others, are confusing outcomes with processes.

    Let’s take your hypothetical. Put on your ‘policeman’s set’, and imagine yourself responding to the 999 call in question.

    The OAP called the gavvers along the lines of ‘I found two men in my house, I fought with one, I stabbed him, there’s blood everywhere, I don’t know what happened, I don’t know where he went.’

    You don’t know who the stab-er is. You don’t know who the stab-ee is, or even where he is. You don’t know if the stab-er is the homeowner, or not. For all you know, he’s the burglar and it’s the homeowner who has been stabbed and left the scene. You don’t know (to use the American vernacular) Jack Shit. Except for two things, which are

    – somebody has bled a hell of a lot, there’s every sign of a violent struggle. It is much-more-likely than not that somebody has been seriously injured.
    – There’s man standing in front of you who is telling you ‘I stabbed a man’.

    You send off your officers in all directions – search the streets, call the hospitals, follow the trail of blood and find out where it leads. Find me this man’s ID, find out who he is, does he live here. Who else is here, who’s seen what happened. Find me independent evidence of what’s gone on here. In a few hours, we will know more. In a few hours, we may well actually know, what you say – that what we have is ‘a well aerated burglar in the immediate vicinity of a person’s home’. But right now, you know none of that. All you have is presumptive evidence of a violent crime, and a man who is telling you that he is your prime suspect for that crime.

    You have to investigate. You have no choice. It is so much more-likely that a violent crime has occurred, than not, that you have no choice. It’s your sworn duty. And you have to start by investigating the evidence that’s standing in front of you. You need to find and secure any physical evidence that you can, which may include all sorts of things on and about the suspect. And you need his statement. But he’s an old man, he’s likely hurt and confused, and he has rights that you must safeguard as well.

    Why would you not arrest him? If nothing else, in his own interest, for all the reasons I have described above? Because it might cause an outcry on the pages of the Daily Mail? Too bad. This too shall pass, but stabbed to death is For-Ever, and you have to find out what really happened.

    The one thing you cannot do – must not do, if you are to investigate properly – is make any assumption about the guild or innocence of anybody, because it will sway your judgement as you investigate. Your job is to find the facts – not to decide what they mean.

    Nothing is more dangerous to an investigation, at this stage where you know Jack Shit, than to form a theory of what happened and why. It will lead you down a rathole and cause you to look for things that are not there, while ignoring things which are there. I have seen this happen, in person. I have done this, myself. It is human nature to seek a pattern or a most-likely explanation for the set of data that you have, and that’s fine – the danger comes when you let your explanation drive the facts, instead of letting the facts, drive the explanation. I once worked on a case where the man who claimed to be the arch-criminal and the perpetrator of heinous acts, tuned out to be completely innocent, and the man who claimed to be the innocent victim, turned out to be the perpetrator of all of it. White can be black, black can be white, you should believe only half of what you see and none of what you hear. Evidence, facts, data. Nothing else. And that man standing there is key evidence, both in his person and in his mind. Secure it.

    I wish much-missed commenter Sunfish were here to add his insight. Sunfish, if you are still lurking, come and join the party, just this once. For me.

    And in addition, I think bobby b. can add a lot of valuable insight, from the point of view of the defense attorney.

    llater,

    llamas

  • llamas (April 12, 2018 at 4:36 pm), no-one doubts

    you have to investigate

    There is no point in mentioning that in this discussion; no-one is questioning it. (I do find myself wondering if the police know just a little more than you say. With a householder in his own house that he can describe in great detail, a wife whose dementia is probably not so severe but that she can identify him, and neighbours awakened by police cars, could not his identity quickly be sufficiently verified at the scene? But of course, there must be an investigation.)

    If the police wants to protect the guy’s rights, they can question him under caution; they can do that without arresting him in the UK. It is quite normal IIUC.

    If instead they just want to investigate in a mode most convenient to themselves, why not question him not under caution – for as long as that is legal for them to do. UK police may question someone not under caution until/unless they have reason to suspect that person has committed an offence (so just possibly the legal distinction of whether “self-defence is not an offence” in UK law or, as bobby b says is the case in some US jurisdictions IIUC, “self-defence is a legal defence for committing an offence” may come in here; I thought the former but that could be another ought/is distinction). Mr Ed’s reasoning would seem to mean the police may question him not under caution until/unless they feel they have reason to doubt his account of things. His story implies that (unless he follows Danforth) he will cooperate with police questioning, with a request to accompany them back to the station, etc. Whether and how he does so is potentially diagnostic, and the police can still arrest him at any moment.

    Since arrest in the UK is (for a respectable person) harmful – it must be declared in a range of situations, etc. – why not defer it until/unless needed. Not only does this spare the police being savaged

    on the pages of the Daily Mail

    (and the threads of samizdata 🙂 ), it may spare the OAP difficulties if e.g. he offers to volunteer for some charity.

    This is written FYI, not as a prompt to endless argument. Please feel free to say in any reply that you feel you have argued enough; I am not a ‘must have the last word’ guy. Your long and detailed comments provided information but your

    Why would you not arrest him?

    remains unconvincing (except that I do grant the full force of bobby b’s remark about the possible junior status and very limited time of the arresting officer).

  • llamas

    @Niall Kilmartin – likewise, I don’t need to have the last word. As I said, I would very-much like to hear more from bobby b.

    I would add that, while this is true

    “If the police wants to protect the guy’s rights, they can question him under caution; they can do that without arresting him in the UK. It is quite normal IIUC.”

    for all the reasons outlined above and specifically in Professor Duane’s lecture, the OAP would be a fool to go along with that without (at the very least) a public defender (or whatever the equivalent in the UK is these days) present, and with the questioning being recorded.

    Regarding this:

    ‘Since arrest in the UK is (for a respectable person) harmful . . . ‘

    then that’s a situation that you need to fix. But the fact that the process of arrest has now (apparently) become a punishment in itself, does not invalidate my larger points.

    bobby b. – if you would be so kind?

    llater,

    llamas

  • S.24 Police and Criminal Evidence Act 1984 describes a two part test for arrest

    Suspicion of an offence

    Necessity of arrest to progress investigation

    Arrest is descretionary!

    Nothing in known publicly about this case shows the arrest was illegal.

    This does not mean it’s how the law should work. But it currently does work that way.

  • Roué le Jou

    “Live by the screwdriver, die by the screwdriver.”

    Yes I know. Very immature of me. I’ll sit quietly in my room for a while and think about what I did wrong.

  • bobby b

    llamas
    April 12, 2018 at 6:58 pm

    “bobby b. – if you would be so kind?”

    I look at all of this through the lens of a defense lawyer, you through the lens of the police, and so you might expect that we’d be at loggerheads on some of the points made above.

    But we’re not. Everything you said above strikes me as correct and reasonable. And where you spoke of the value of good investigative process as a counterpoint to my talk of an officer’s needing to follow his departmental philosophy, I’ll just steal the phrase from the old cereal commercial and say that they’re both an indispensable part of a healthy breakfast.

    Good police work is a sine qua non of a good system of justice. Leaving important decisions to the discretion of a responding officer in abrogation of established procedures and processes may sound more “fair” in some specific situations (such as this one), but it encourages incomplete investigation and favoritism, which in the long run will harm the public’s perception of policing far more than this one arrest.

    I’ve cursed good police work many times in the past, because it tended to nail down my guilty clients’ fates, but when I had clients who were truly innocent, good police work was what eventually freed them, not my brilliant Perry Mason trial tactics.

    (And as an aside, I’ll note that, given the dead guy’s friends, the arrest might well have saved the old guy’s life.)

    (As a second aside, whenever I had a client who was exonerated after arrest, it was routine to prepare a motion to the court for the expungement of the record of their arrest, and these were routinely granted by the court. I don’t know if this is available in the UK, but if it is, you can then legally say “no” when asked if you’ve been arrested, and a search of the records will not show that arrest.)

  • bobby b

    Fraser Orr
    April 12, 2018 at 4:14 pm

    “Yeah, those private prisons do have a terrible reputation.”

    They used to. Back in the 80’s when they first popped up, they made incredible profits by skimping on food, space, medical treatment, and supervision. Then there was a public backlash, and many private prisons were closed. But the need for more prison space kept growing, so the private companies entered into strict supervision/inspection agreements with the governments, promised certain nutrition minimums, hired prison doctors, and in the early 2000’s they resumed their push, and now IIRC they supply more than 200,000 spaces across the country.

    “Of course there is a deeper question of why prison is such a good punishment.”

    They’ve tried most things I can think of – restorative justice, community justice, etc. – and they have all failed in their essential purpose. Not sure where we can go from there.

    “For example, the court buildings, clerks, security, the majority of criminal investigation (using the force powers delegated when necessary), all the background work that goes in to sentencing, legal research, parole boards, and on an on. Surely separating out the actual monopoly state powers into one limited division that only acts on that monopoly, and having private entities request the use of this, would be an additional guard against the misuse of those powers?”

    We’re already there in many places. Aside from the main huge cities of Minneapolis and St. Paul, I worked in courts across all of the surrounding suburbs and close-in small cities, as well as out-state courts. In many of these places, the courtrooms and admin facilities were rented from private landlords in office complexes, and the prosecutors were all simply local lawyers who contracted to handle prosecution on a per-case basis. The main staffing of the facility, of course – all of the records and scheduling clerks, the guards, etc. – was provided by government employees, who were unionized and overpaid and whose functions couldn’t be altered due to union work rules. That’s why I think that public employee unions are the next best target for making it all more efficient. (There are constitution-based arguments against allowing non-state-employees access to pre-conviction criminal information such as what the courts see that have hindered attempts at privatization.)

    In any event, one of the more effective arguments against new criminal statues and offenses lies in “we can’t handle what we already have.” Due to the “speedy trial” laws (which in essence and very roughly hold that a defendant in custody must be given a trial within so many days of arrest or be released), adding new laws into an already-maxed-out system means that more guilty defendants are going to be set free. So a maxed-out court systems has good points as well as bad.

  • Julie near Chicago

    I too wish Sunfish were here. Also Subotai Bahadur (even if he wasn’t in law enforcement, which I sort of thought he was).

    This is a great discussion. Don’t quit on my account!

  • bobby b

    Alisa
    April 12, 2018 at 12:33 pm

    “That surprised me, Bobby. What type were the majority of the crimes (minus the Martha Stewart “crimes”)?”

    Different lawyers handle different markets. Approximately 75% of defendants are assigned a free Public Defender (a stable of lawyers all employed by the state PD office who are salaried and who defend people who can’t afford a lawyer. Most criminals don’t have money or income.) Another 5% (roughly) of defendants have lots of money and hire the rock stars of the local bar.

    That leaves about 20% of defendants who hire the local workaday lawyers such as I was. These are generally people who just barely don’t qualify under income rules for a PD, but who can’t afford the glitzy, 30-staffers-working-on-each-case rockstar lawyers.

    So I handled DWI’s, domestic assaults, drug possession charges, simple assaults, robberies, burglaries, illegal firearms possessions, car theft, welfare fraud (for those few fraudsters who had enough money to pay me), and the like. Really serious cases of murder or rape or kidnapping would require more resources than I could bring to bear on a case, so I’d usually refer them out to a bigger shop.

    (At one point, I became popular with one of Minnesota’s militia groups, and handled lots of “Driving Without a License” charges – they don’t believe the state has the power to require licenses – and they would pay me in gold – they don’t believe the state has the power to coin money. That was interesting. We always lost, but they were happy because I would get their cases scheduled in front of a judge who would allow them to give their “give me liberty or . . .” speeches. Most judges wouldn’t.)

    And I didn’t do federal crimes at all. I appeared in federal courts frequently, but only on civil matters. Federal-court criminal defense is a very specialized and esoteric field – you need to know all of the arcane rules that can vary from court to court, and you need to be aware of all of the “Martha Stewart” process crimes that you can easily trigger via the FBI and the US Attorney’s Office. Most people I know who handle federal criminal defense do ONLY that work.

  • Alisa

    Thanks Bobby. BTW, I didn’t mean to ask specifically about your practice, but rather to get the bigger picture – which I got just the same.

    …simple assaults, robberies, burglaries, illegal firearms possessions, car theft

    Would at least some of these, with the addition of murder and kidnapping, be the directly or indirectly connected to drug use/trade? I’m asking because of my original surprise at ‘only 25%’, by which I take it you meant straightforward drugs-related cases.

  • Alisa

    Oh, and your aside about the local militia didn’t go unnoticed 😀

  • bobby b

    Alisa, no, the 25% encompassed everyone with some drug charge in amongst their other charges.

    But drug charges involving larger amounts – sellable amounts – skew towards federal court, where the defendants can be given much longer sentences and the process and the prosecutors are very well-funded. So, by staying in state courts, my drug proportion was low compared to overall charges leveled. Federal court criminal lawyers in my area averaged closer to 40% drug cases.

  • llamas

    bobby b. wrote:

    “(At one point, I became popular with one of Minnesota’s militia groups, and handled lots of “Driving Without a License” charges – they don’t believe the state has the power to require licenses – and they would pay me in gold – they don’t believe the state has the power to coin money. That was interesting. We always lost, but they were happy because I would get their cases scheduled in front of a judge who would allow them to give their “give me liberty or . . .” speeches. Most judges wouldn’t.)”

    You had those too? I well recall, in the early 90’s, when I was working in auto theft, we took off a guy who had a barn full of cars with no VINs, no titles, no plates, no registrations, no nothing. He could talk you into a coma about how he wasn’t required to have any of those things, and as long as he put a plate on the back that said ‘Not For Hire’ while there was a US flag in the room that did not have a gold braid edging (because the gold braid edging makes it an Admiralty flag, and then he was subject to maritime law) and he declared himself a Free Man On The Land, and he had receipts proving that he had paid using only coins and not Federal Reserve notes, there was nothing we could do to him. You get the idea.

    “I’m sure you’re right” said the sergeant “but, as they’re all stolen, you’re still coming with us.”

    I understand he was quite popular in the county jail for a while – it all sounded so impressive while he was on remand (he couldn’t make bail), until he got convicted and they figured out that, as his arguments had obviously not worked for him, they might not work for anyone else either.

    llater,

    llamas

  • Alisa

    God I love America^ 😀

    Thanks Bobby.

  • bobby b

    llamas
    April 13, 2018 at 1:07 pm

    “He could talk you into a coma about how he wasn’t required to have any of those things, and as long as he put a plate on the back that said ‘Not For Hire’ while there was a US flag in the room that did not have a gold braid edging (because the gold braid edging makes it an Admiralty flag, and then he was subject to maritime law) and he declared himself a Free Man On The Land, and he had receipts proving that he had paid using only coins and not Federal Reserve notes, there was nothing we could do to him.”

    Did you get the long speech about how all of our rights are derived from the Magna Carta? About how the elected Sheriff is the highest legitimate authority in the land? About how freemen should never bow down to illegitimate judges? I had one guy try to arrest the judge in the middle of our trial.

    Damn. Good times.

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