Trial by jury: is the British presumption of “innocent until proven guilty” under threat?
I am terrified of the police. This is not because I have done anything wrong, but because they are frightening, and so is the modern British state. I never had this fear in the long-ago days when I brawled with the constabulary on anti-racist demonstrations and silly marches against the Vietnam war.
But I have it now in the era of the dawn arrest, and the increasing involvement of police officers in politics. I wonder more and more if I shall manage to die before I end up in jail for some yet-to-be-formulated offence against the thought and speech codes of modern England.
I don’t like the Sun newspaper and have felt coldly towards its staff since they became the slavish mouthpieces first of Blairism and then of the Cameron Tories. I don’t approve of phone-hacking, nor of police corruption. I don’t know or like Ruth Turner, the Blair adviser arrested at home in the early morning during the cash for peerages inquiry in 2007, and never charged. I don’t think much of Damian Green, the Conservative MP and now immigration minister who was arrested and held for nine hours in 2008 in an investigation over alleged leaks from the home office. His home and office was searched and he, too, was never charged.
But I shudder at the way the police and the prosecuting authorities have been behaving in recent years, heavy-handed, politically driven and, in my view, prejudicial. They have repeatedly acted as if the power to raid a home or arrest an individual is a weapon rather than a means to an end.
Back in the days when we all believed in repressive tolerance (it was in fact simple tolerance), our coppers were wonderful. They might have thumped you in an alleyway, but you would usually have deserved it.
Now they have turned into the engine of oppression that our early 19th-century parliament feared they would become.
This change took wing in the 1980s, paradoxically after various inquiries and commissions led by left-wingers who thought the force was getting too big for its helmet.
The police were no longer allowed to prosecute. But they were licensed to persecute. Arrests, which used to be made only in the expectation of a charge, quietly became a sort of public punishment, like the “perp-walk” pioneered by Rudy Giuliani when mayor of New York and so well described, from the defendant’s point of view, in Tom Wolfe’s Bonfire of the Vanities. They work on the “no-smoke-without-fire” principle—the very thing that the presumption of innocence is supposed to prevent.
Have you noticed how in so many modern investigations people are arrested—often at dawn and in conditions of total publicity—and then not actually charged? Have you noticed that they are then “questioned” by police, and eventually released on something called “police bail,” which seems to give police a power properly belonging to magistrates. And, thanks to Anthony Blair’s disregard for the presumption of innocence, these people are swabbed for DNA and fingerprinted even though they have been convicted of no crime.
What is this “questioning”? We have been seduced by TV police shows, especially Scandinavian ones. Whose interests are these actions serving? Not those of justice.
Despite the shameful destruction of the old total right to silence by then home secretary Michael Howard (which has had no noticeable effect on the increase in crime and disorder), the police still have no actual power to interrogate us. Nor do we have any duty to help them convict us.
And why should we? The proper place for the questioning of an accused, unconvicted person is in the witness box in a Court of Justice before a jury of his peers.
But of course real justice is expensive and awkward, and governments have always hated it. Jury trial is being quietly, relentlessly attacked in so many ways it needs a book to describe them. Readers of Prospect would be unwise to rely on it to keep them out of Belmarsh if they somehow find themselves on the receiving end of a noisy and populist police investigation.
I am still amazed that so few people can see what is wrong with majority verdicts—the plot of 12 Angry Men is based on the need for a unanimous decision. But jury trial—trial itself in fact—is harder and harder to obtain in an age of on-the-spot fines and police-issued cautions that can land you with a criminal record.
Instead, there is the presumption of guilt, which begins with a thunderous knocking in the small hours and men in combat uniforms carting away your computer. Who, in my childhood, would ever have thought of such a thing happening in England? Yet most of us did not even notice the moment when these things changed, and darkness began to fall.