Now, more than ever, we need the judiciary to stand up to the political pressures of the executive branch of government. David Cameron has just voiced his support for the measures taken by Wandsworth Council to evict the family of a defendant charged with offences relating to the riots that took place this week. If the judiciary is to maintain any credibility at all, it must stand up and strike this down.
Reaction to the riots has been both understandable and predictable. The “bring back hanging” brigade have had time while the dust settles to kick up a fuss, and magistrates have used the riots as an “aggravating factor” to justify sending defendants to the crown court for tougher sentencing. This in itself is not a major issue, but we have to hope that this is nota symptom of systemic acceptance that public opinion and political pressure should play a role in the judicial process. It should not.
What’s the problem? There are several issues with Call-me-Dave and Wandsworth Council’s apparent tough stance on the riots. Firstly, and most obviously, this would be a double-punishment. The individual in question is in court facing judgment – criminal punishment should be a proportionate deterrent response taking into account the mitigating and aggravating factors about the crime. Furthermore, the rule of law dictates that punishment should only be administered once. This legal principle is as old as the hills and is the heart of the famous “double jeopardy” laws which crop up in the media from time to time – the guiding principle is that nobody should face the criminal law for the same alleged conduct twice.
Political divides debate the acceptable scale of punishment along hackneyed lines, but all sides (largely) agree that once you have been punished, that’s it. It is a criminal’s “debt to society”, and debts are only paid once. The problem with evicting a criminal from their council accommodation is that this is a secondary punishment. This wouldn’t matter, or at least it would matter less, if it was a universal punishment – we are all familiar with the idea that crimes can attract a custodial sentence and a fine, for instance – the problem is that the sentence is not imposed by the courts under law. It is a different governmental branch using powers not conveyed on it by statute to inflict a secondary, arbitrary punishment which lacks precedent and principle.
Secondly, the punishment is to be inflicted on the suspect’s family. This too falls foul of the rule of law and the principle of individual autonomy and criminal responsibility. It has long been a Daily Mail cliché that we should “blame the parents” in these situations, but that a large number of right-wing people hold this as dogma does not make this a sound legal principle. Should young people convicted of theft be given sentences and their parents forced to repay the victim from their own income? Personal responsibility is taken for granted in the criminal law, which has a presumption of sanity and refuses to permit the defence of duress to a murder charge. “Take responsibility for your own actions!” demands the criminal law, “blame the benefit-sponging parents!” cry the tabloids. As we have seen over the past months, the “responsible media”, at least as far as tabloids go, is a mythological construct. There is no legal, moral or other basis for imposing punishment on the family of the suspect. It is knee-jerk, it is illogical, it is a populist outcry from a politician who has very little mettle to back up his sound bites and airbrushing.
A third issue, and the final one that I want to cover, is closely linked to the first. Since this is not a judicial punishment imposed by a court, there is no way of standardising the sanction. This may sound obvious, but rich people do not live in council houses. There is, therefore, a disparity in the punishment being handed out to the poor and the rich. This is nothing more than we have come to expect from this government, and it is why we need a judicial stand to be taken, to dismiss in the strongest possible terms the eviction notice that has been issued by Wandsworth Council. The rioters were not, as many believe, benefit scroungers after a new telly and an ipad – their ranks included the daughter of a millionaire (try taking her parents’ property away from them and see where that lands you) an army recruit and a white-collar call centre worker. This punishment is not fair and it is not proportionate. Once again, it is against the rule of law.
So why does the rule of law even matter? It matters because it is what gives our judicial system credibility worldwide. By enshrining the right to a fair trial, equality before the law (a noble goal alas made all the more difficult thanks to the Tory attack on legal aid) and by seeking to balance the competing interests of certainty and flexibility, our legal system is looked upon approvingly by the rest of the civilised world. This punishment fails to respect the rule of law in so many ways that it simply cannot stand.
I only hope we’re in for one of Dave’s famous U-turns. If not, it could leave our legal credibility in tatters and further damage our international reputation, already marred by the troubles.