Is Britain on the verge of anarchy? The police certainly seem to think so. On the day of the coronation, they arrested three volunteers who were carrying rape alarms to protect women, not to scare horses — and six anti-monarchists who had already been in touch with the authorities about their plans. Holding up a placard saying “Not my King”, it turns out, can lead to you being thrown in a police cell for 16 hours.
This incident shows what can happen when governments meddle with justice. The new Public Order Act and Police, Crime, Sentencing and Courts Act have given ill-defined powers to the police, some of which they never asked for. Scotland Yard, which was coping with a complex operation, has expressed regret. It is disingenuous of politicians to blame the police, claiming their legislation was merely about stopping protesters obstructing traffic; it has created numerous new offences, some worded dangerously vaguely.
Anti-protest powers are only part of a wider picture of interference by successive governments in a criminal justice system that is failing for lack of funds, even as they pile on more headline-grabbing demands. Increasing minimum sentences is an old favourite, a cheap way to respond to outrage about certain crimes — most recently child cruelty and eco-activism. Criminalising language is another: ten years ago, comedians clashed with government over hate speech laws they feared were outlawing humour. Now the clash between politicians and legal principles has reached a new frenzy, with Scottish lawyers promising to boycott the Scottish National party’s plans to abolish jury trials in rape cases.
Rape is a very serious crime, which causes life-long damage to victims. Public institutions are rightly haunted by egregious failures, including the appalling treatment of hundreds of girls who were ignored while being abused by grooming gangs in places like Rotherham. Complainants are having to wait as long as three years in England and four years in Scotland for their case to be heard.
In chasing more convictions, however, the SNP has gone too far. The Scottish government has decided that the acquittal rate in rape cases is too high, because conviction rates in Scotland are 51 per cent for rape and attempted rape, compared with 91 per cent for other offences. It believes that juries are influenced by “rape myths”, such as the idea that previous sexual contact between the parties may indicate consent, and has launched a pilot scheme to replace juries with a single judge. But the Scottish Solicitors Bar Association thinks this ignores the fact that rape is notoriously difficult to prove. The biggest study of jury cases does not support the claim that jurors are incapable of weighing up competing accounts.
The anger among the Scottish lawyers I have spoken to is white-hot. Judges fear that the SNP plan will put intolerable pressure on them to convict, cutting across their responsibility to act independently. Others say that serving on a jury is the only time most ordinary people have a role in the machinery of democracy, except for voting, and that most take their obligations very seriously.
The Victims, Witnesses and Justice Reform (Scotland) bill would undermine two of the oldest and most fundamental legal principles: the presumption of innocence and the right to a jury trial.
With Scotland’s seven biggest courts refusing to take part in the pilot, the SNP will probably have to back down. But the tendency to describe all complainants in rape cases as “victims” before any case has been heard, has infected Westminster too. This is yet another example of where MPs are cavalier with language that has been crafted over centuries to preserve fairness.
Politicians would be better off spending their time fixing the criminal justice system, which leaves so many people in limbo that it no longer serves the public.
The backlog in the courts has reached intolerable levels. Law centres and courts have closed. Legal aid has been cut so savagely (even more in England and Wales than in Scotland) that many vulnerable people can’t find a lawyer to represent them. Sneaky rule changes have forced many people to pay crippling costs, even if they are acquitted. Meanwhile most Britons have given up on asking police to investigate theft. The recent barristers’ strike ended with an improved pay settlement from the government; but many criminal barristers have told me they still fear their generation will be the last to take on criminal legal aid work.
After national security, providing access to justice is government’s most fundamental responsibility. But if you are accused of a crime, if your house or shop is broken into, if you have been abused, you may find that justice is slow or even unavailable. Prisons, meanwhile, are overcrowded, making a mockery of political grandstanding from both main parties about longer sentences.
Last weekend, the nation watched an ancient ceremony with reverence, but on the streets outside, the state was flouting centuries-old principles of free speech and fairness. The Scottish government is attempting to lock up people who might be acquitted by their peers. Westminster has greatly expanded powers to police to silence those it does not like. The real danger to our society is not militant demonstrators, against whom there was already plenty of law. It is politicians. If governments only asked themselves what their successors might do in power tomorrow, with the rights they have ceded today, they might act with more caution and more respect.