Trial by Fury

How radical legal theory from America is destroying civil liberties in Great Britain.

Something strange is happening to British justice. In recent months the British government has unveiled an array of measures that promise to change the legal system profoundly. This spring, British citizens learned that Jack Straw, the home secretary (the rough equivalent of the American attorney general, though with more political power), plans to abolish trial by jury for all but the most serious crimes. He is also considering lifting the rule against double jeopardy, which prevents a defendant from being tried more than once for the same crime, and is thinking of criminalizing offensive language even when it is spoken in the privacy of one's home.

Some in the British news media have treated these announcements as an aberration. Surely, they ask, these are not normal measures for a Labour government. The BBC was quick to remind audiences that the idea of abolishing trial by jury was first floated by the last Conservative home secretary, Michael Howard, three years ago in a rousing speech to his party's faithful. Maybe Straw's promises are an attempt by the new Labour government to woo elusive middle England voters–traditional middle-class Tory voters–from rural and suburban areas? But with the Tories still trailing abysmally in the polls, it is hard to see what Jack Straw has to fear from middle England.

To make sense of what is happening to the British legal system, it is necessary to look beyond middle England and peer into the depths of New Labour's thinking and practice. The truth is that Jack Straw is very much in his party's mainstream when he talks about reforming fundamental aspects of British law. He has told Parliament that he expects most of these measures to be law by the end of 1999. While it is not certain that all his proposals will reach the statute books, the entire Cabinet shares Straw's enthusiasm for reform. His plans are indicative of a new approach to the law, one influenced by radical legal thinking imported from the United States. As a result, some of the key principles on which the law has stood for centuries, principles aimed at protecting individuals from trespasses by the state, are being challenged.

The impulse behind the current wave of reform comes from the findings of a high-profile inquiry into the London Metropolitan Police Force, published last spring. In 1993, a young black man named Stephen Lawrence was brutally murdered by racists in the streets of South East London. Although there were five prime suspects, nobody was convicted, and the case remained officially unsolved. Gradually, the belief grew that the inability to secure a conviction was due to racist attitudes within the police force.

For the next few years, Stephen Lawrence's parents demanded that somebody investigate why the police had proved to be so incompetent. But not until Labour came into power in 1997 did the authorities take their demands seriously. Jack Straw set up a full public inquiry into the affair.

Although formally independent, this inquiry had the blessing and backing of Labour from its inception. In the way that Independent Counsel Kenneth Starr was regularly linked to the GOP in the public imagination here, so the Lawrence investigation was seen by many in Britain as a political initiative by Labour. Unsurprisingly, when the investigators finally published their findings in The Stephen Lawrence Inquiry (www.official-documents.co.uk/document/cm42/4262/4262.htm)–commonly known as the Macpherson report, after the chair of the team, retired judge Sir William Macpherson–the government took the unusual step of agreeing to implement all 70 of its recommendations.

After months of hearing detailed evidence, Macpherson and his three-man investigative team concluded that the London police were indeed guilty of institutional racism. No inquiry had ever been so critical. The report sent a shock wave across the nation. Newspaper headlines screamed of a "police force disgraced and a nation shamed." As one of the report's authors–Richard Stone, president of the Jewish Council for Racial Equality–explains, "Many people in Britain are grasping the reality of institutionalized racism for the first time. Mr. and Mrs. Lawrence have woken up mainstream Britain to the fact that many black people face a serious problem. The fact that such a major institution as the police could have allowed such a serious injustice to occur…can't be due to chance."

But the shocking findings against the police were not the team's only conclusion. Macpherson and his colleagues made extensive recommendations about how to prevent such a miscarriage of justice from occurring in the future. While many of their recommendations focus on police recruitment, training, and disciplinary procedures, the report also urges reform of education. As part of Macpherson's proposed changes to the National Curriculum, every child in the nation should now be instructed in "valuing cultural diversity and preventing racism." The report also suggests key legal changes to make the prosecution of racists easier. These recommendations illustrate the new approach to legal thinking.

First, the report recommends that the police, and indeed all public institutions, adopt a new definition of racism. From now on, the definition of a racist incident in the United Kingdom is "any incident which is perceived to be racist by the victim or any other person."

Second, despite worries about racism within the police, the team urges that the powers of law enforcement be increased. In recommendation 38, the report suggests that "consideration be given to the Court of Appeal being given power to permit prosecution after acquittal where fresh and viable evidence is presented"–in short, suspending double jeopardy. This idea is now before the Law Commission, the body that evaluates proposed legal reform.

Third, the Macpherson panel urges that consideration be given to amending the law "to allow prosecution of offenses involving racist language or behavior…where such conduct can be proved to have taken place otherwise than in a public place." The Home Office (the rough equivalent of the Justice Department) is now considering this proposal.

Not everyone in Britain is happy about these proposed changes. During the parliamentary debate on the report, individual Tories ridiculed aspects of the report as "Orwellian." Others saw the definition of racism as unworkably subjective. The normally out-of-touch and staid Tory M.P. David Maclean speculated what could happen to four hypothetical characters having a drink after work.

Suppose, he said, "they come out of the pub and find that their car windshields have all been smashed. One man is black and says that the smashing of his windscreen is a racist incident. Am I right in understanding that the police would be obliged to record it as such in his case? Even worse: The black man does not complain to the police that the smashing of his windscreen is a racist incident, but others who spot the incident on the news that night or in the local paper the following week go to the police and say that it was a racist incident."

Other, less eccentric commentators worry that the changes will do more harm than good. Liberty, a British civil liberties group, thinks that the proposal to criminalize racist language spoken in private is an excessive intrusion into privacy. Its director, John Wadham, also points out that waiving the double jeopardy rule would do little to prevent future injustices. As he explains in a statement, "This is wrong in principle, would not have helped the Lawrence case, and, because of the racism in the criminal justice system, will be used more often against black people than white."

The report's supporters are unmoved by such critics. According to Lee Jasper, one of Britain's prominent black activists, "The right-wing press is trying to discredit some of the report's recommendations, referring to the `thought police' and so on." As he explained to his supporters in a newsletter this year, "Society has to make a judgment: racism is unacceptable or it is not. Race hatred has to be eradicated and most of the changes recommended by the report would be a step in the right direction."

Richard Stone, Macpherson's fellow investigator, is equally adamant. Stone dismisses criticism of the report from a civil liberties standpoint as "crap" and "a destructive tactic that is motivated by those who want to discredit the report." As far as Stone is concerned, these issues naturally "came out of the inquiry and we could not avoid them….We simply said we thought it would be reasonable for them to be considered."

Stone is right when he says that these issues arose spontaneously out of the inquiry. Double jeopardy came up because the prime suspects were in fact tried and acquitted for Lawrence's murder. Their acquittal was blamed largely on police ineptitude. This inflamed the Lawrences' sense of injustice and led many to argue that retrials should be allowed. The matter of prosecuting racist language in the home arose because the inquiry team sat through hours of secret surveillance videotapes shot by the police inside one suspect's home. While the police found nothing on the tapes to implicate the youths in Lawrence's murder, they did record foul racist language that Stone described as "ghastly" and an "incitement to violence."

But powerful though those experiences may be, the peculiar events surrounding Stephen Lawrence's murder–however unpleasant or unfair–do not explain why the British government, civil rights lawyers, and many activists are so keen to embrace these recommendations. Consider Mike Mansfield, one of Britain's top radical lawyers, who less than two years ago championed the cause of free speech during the infamous McDonald's libel trial, the longest civil trial in British history. (McDonald's sued two environmental activists for libel when they published a polemical leaflet critical of the hamburger chain.) Now he champions the idea of criminalizing offensive speech in the home. People like Mansfield once would have condemned Macpherson's recommendations for violating fundamental civil liberties. Their new perspective reflects a shift in expectations about what the law should do.

In the past, the law was used simply to judge an individual's acts. To paraphrase the old adage, a man could judge another man's actions, but only God could judge your thoughts. Today, many former radicals expect something different from the law; they are adopting a more "divine" approach. It is now fashionable to use the law to "send messages" and to "correct" people's attitudes. Although nobody uses the term, the law is seen as a legitimate tool of social engineering, and it is now expected to reach right into people's minds (and homes) to effect change.

The proposal to outlaw racist language even when spoken in private epitomizes this approach. Far from being a strange aberration of one inquiry, this recommendation is entirely in line with the current direction of change in British law making. To date, most critics of this measure have said it would be an invasion of privacy, or argue that an Englishman's home should be his castle. While this is true enough, such arguments fall on deaf ears because they fail to confront what it is about this measure that makes it so attractive to so many.

Britain has never enjoyed the constitutional protection of speech that exists in the United States. Since 1965, it has been a crime in Britain to incite racial hatred. This law was introduced as a form of public-order legislation following inner-city race riots in the late '50s and early '60s.

Since then the law has been strengthened several times. Using racist language is now a criminal offense even in the soccer stands. The Crime, Justice, and Public Order Act of 1994 outlawed the publication of racially inflammatory material, and the Crime and Disorder Act of 1998 singled out racially motivated assaults for special punishment. The newly adopted definition of a "racist incident" ensures that the number of individuals punished for having the wrong attitude can only increase.

Nor is it simply racist behavior that is singled out for special punishment. The new reformers want to protect society from all manner of offensive attitudes and actions. As one of the most rigorous critics of the new trends in legal thinking, John Fitzpatrick of Kent University, explains, "These provisions should be seen in the context of offenses that generally seek to protect people from offensive behavior and language. It is now an arrestable offense in Britain to simply cause harassment, alarm, or distress."

This is an important shift. During the '60s and '70s the law against inciting racial hatred was at least justified on the basis of maintaining public order. The argument was that racial "threatening, abusive or insulting words or behavior" were likely to stir up racial hatred that would lead to a breach of the peace. In recent years, however, public order has been less of a concern. As U.S.-style feminist and critical legal theory has become fashionable in British universities and law schools, the sensibilities of the listener have became a new factor to consider in legal reform. Without First Amendment protection or a tradition of defending free speech to contend with, radical American legal thinking has had a far greater impact on the law in Britain than in the United States. It is now the offensive nature of insults rather than the actions that might follow such words or behavior that is seen as a matter of concern for British law.

The focus on protecting people from being offended has made the law less objective. As the new definition of racism demonstrates, if incidents are judged by what degree people suffer offense, then it is the feelings and sensibilities of particular individuals that define what is and is not criminal behavior. But of course there is a problem with this: What one person deems offensive, another may find merely robust.

Fitzpatrick sees dangers in such a subjective approach. "This absurd barrage of laws promotes two dangerous ideas," he says. "Firstly, the idea that our fellow citizens are so feeble and impressionable that they must be sheltered from all manner of incitement and opinion. Secondly, that individuals and society have the right not to be offended by the sort of behavior which falls short of physical violence and was not previously deemed criminal."

The proposal to abolish the double jeopardy rule illustrates a related trend in today's legal reform movement: The elevation of the victim's interests. In the past, the rules of criminal law essentially governed the relationship between the state–which prosecuted crimes on behalf of society–and the defendant. Such basic rights as the right to trial by jury, the right to silence, the right to legal representation, and the presumption of innocence have long been in place to prevent the state from abusing its power in prosecuting crimes.

Today, however, perhaps because we see our fellow citizens (or even ourselves) as "feeble and impressionable," we have become sensitized to the interests of the victim in the criminal process. During the investigation into the murder of Stephen Lawrence, his parents were treated appallingly by the police. The Macpherson panel heard damning evidence about the ordeals they suffered. It is not surprising that this moved the inquiry team. It is less clear, however, why they drew general lessons for all victims from this evidence. The Macpherson report proposes that in future cases, victims or their families become "civil parties" in the criminal prosecution itself.

Fitzpatrick is critical of the desire to involve victims in the criminal process. "It is not healthy to allow victims too prominent a role even after conviction," he says. "In a civilized society retribution ought to be exercised rationally by the community as a whole and balanced against other considerations like the need to deter others, protect the public, and of course rehabilitate the defendant. It could also be said that encouraging victims to focus on their grievances is a very destructive institutional response."

Moreover, while victims should undoubtedly be treated with respect, it is dangerous to make their interests weigh too heavily in criminal prosecutions. Counterposing so-called "victims' rights" to the rights of the defendants in criminal trials will simply lead to unfair convictions.

The rule against double jeopardy is a safeguard that prevents the police from harassing an individual indefinitely. Critics of the existing double jeopardy rules argue that since the defendant has a right of appeal, why shouldn't the state have another bite at the cherry as well? But the state and the individual are not equal parties in a criminal prosecution. The defendant's liberty is at stake, and the state holds all the power. Due process and defendants' rights exist to level the playing field between the two parties. If obviously guilty defendants are escaping punishment, then the answer is to raise the standard of police investigations and prosecutions, not to lower the standard of trials.

But this view has become unfashionable in today's Britain. These days, defendants' rights are under attack. The right to silence is now severely qualified, trial by jury is under review, legal aid is being wiped out, defendants now have to disclose their defense strategy to the prosecution well in advance of trial, and in rape cases the cross-examination rights of defendants have been drastically restricted. All of these measures have been introduced in the name of victims' rights. It seems that when we worry too much about ourselves as victims, the price we pay is our right to a fair trial.

The Macpherson report illustrates the manner in which the rules are changing in Tony Blair's Britain. Eighteen years ago, another public inquiry investigated police behavior after anti-police riots in many inner-city areas with large ethnic minority communities. The eminent judge Lord Scarman chaired that inquiry. Many of Scarman's findings were similar to Macpherson's, but his report never received the radical backing that Macpherson has enjoyed. At that time, it was only the right-wing hang-'em-and-flog-'em brigade that demanded new laws and new powers of prosecution. Civil rights activists and community campaigners, in contrast, simply wanted to get the state and the police off the back of the black community.

Now the tables have turned. Today it is the anti-racists and the victims' rights campaigners who seek to extend the power of the authorities, while the eccentrics on the right are left to bleat about civil liberties. Rather than demanding to be left alone, the leftists are demanding protection and shelter. New Labour can embrace these new-style activists because it has portrayed itself as the victim's protector. From school bullying to fox hunting to food safety, Blair and New Labour like to present themselves as latter-day knights in shining armor fighting for the weak. With radicals like these, who needs reactionaries?

Helen Searls ([e-mail]), a British journalist who lives in Washington, D.C., is a regular columnist for the London-based current affairs monthly LM and has written widely on British legal reform and civil liberties.