Picture of a judge's wigThe Judge RANTS!Picture of a judge's wig

Date: 22/01/16

A Whole New Order Of Offence

Long-time readers will know of Yer Judge's somewhat quaint and thoroughly old-fashioned view of what constitutes that wonderful concept known as 'justice'.

One of the most important principles - and it's as old as the US Constitution or even Magna Carta - is that no-one should face punishment or restriction of their fundamental freedoms unless a court has decided that that is proper, and even then only after a properly-conducted trial or similar procedure. 'Due process', it's called.

Of course, such lofty ideals have long since been out of style in an age where special-interest and lobbying groups of one sort or another can do a Violet Elizabeth Bott until grandstanding politicians give them their way.

Although there may well be more to the story than reported, this seems to be what has happened here.

Consider, if you will, the implications of this. Leaving aside the ludicrous nature of some of the stated conditions of the 'sexual risk order' ("Dear Inspector, I intend having a casual shag at 47 Brimstone Drive between 2230 and 2300 tomorrow night with a woman I haven't even met yet. Yours faithfully..."), the truly worrying parts of the story are that:

It is the first of the above points which is, I feel, the salient one in this instance. Here is someone who was tried (more than once if this report is to be believed) and acquitted of rape. This may be ascribed to one of three possibilities:

  1. That the evidence against him was insufficient to convince a jury of the man's culpability beyond reasonable doubt (this being the crucial safeguard of jury trials, which is why the pols and the Polis find them so inconvenient that they will try anything from outright blackmail to completely re-writing the law in order to detour around it), or
  2. That the police and the Prosecution Service made a balls of their presentation of the case, which led to the same outcome as in 1. (one) above, or
  3. Both of the foregoing.

Which one it was is, however, immaterial. The fact is that the subject of this particular 'sexual risk order' has never - repeat, never - been convicted. And yet, he will now be subject to restrictions on his liberty which should not be countenanced under anything more elevated and civilised than a tyranny.

Just because a cop says so.

The power to obtain and enforce such orders was created early last year as one of Christopher Grayling's final acts of vengeance against the inconvenience of having to do things properly and thus depriving enthusiastic and ambitious ministers of the possibility of flashing themselves in the scum press about how 'tough' and 'resolute' they are. But Mr. Plasticene Head was merely building upon the odious legacy left by the Labour régimes of the last two decades, with not only their creation of thousands of new (and largely unnecessary) criminal offences, but of making so many of those additions to the legal literature of this already over-lawed state 'strict liability' offences, which means that anyone tried for them has minimal recourse, or no recourse at all, to adducing mitigating factors in their defence. That's not even taking into account the ASBOs, the Super-ASBOs and all the other cases of escalatio ad absurdum by which control of those parts of the population deemed in some way 'undesirable' may be exercised without those with power actually having to go to the effort and expense of proving anything.

Someone from an organisation which has a clear axe to grind welcomed this ridiculous case by claiming that such orders were necessary because it is "often very difficult to get justice" for the victims of sexual assault. I wouldn't deny for a second that such is the case: but could the advocates of these measures please tell me how completely circumventing due process in this way helps the actual victims of actual sexual assaults get anything remotely resembling actual justice? Because I don't see it, myself. How, for instance, is the victim of any rape helped by someone who had no connection with her/his violation being subjected to measures which - had they been enacted in any of the Soviet-era dictatorships - would have led to the same bloviating opportunists who readily applaud such orders here crying "Tyranny!" and demanding boycotts, sanctions, or even a nukular first strike? And all on the say-so of one police officer?

You cannot achieve justice for one by removing justice from others. It really is 'all or none', however unsatisfying that may be to the lust for vengeance to which nearly all of us are subject.

And just in case you think that this doesn't matter to you, that these sorts of procedures will only ever be applied to people of whom you can readily disapprove; or that any curtailment of other people's liberties may be justified by crying out about 'public safety' or about it being worth it 'if it saves one lickle kiddy's life', ponder this:

Supposing someone made an allegation against you, claiming that you had sexually assaulted them. You may know full well that there was not the merest electron of truth in the claim. But the police in these times are under pressure to investigate any such accusations with the utmost seriousness (unless they are made against MPs, Lords or the more creepy and well-connected celebrities, in which case they have to wait until the alleged perpetrators are either dead or safely too far gone).

They decide that - in their opinion - there is just enough evidence to warrant referring it to the Clown Persecution Service. The CPS, under a tottering pile of casework and under pressure to 'do something' by politicians, hacks and ginger groups alike, decide to take you to trial. During the intervening period between arrest and trial, you would have been subject to considerable restrictions on your liberty, even up to the deprivation of it altogther by the euphemistic 'remand in custody' (which in other circumstances is called 'imprisonment without trial', but it's all right because one of those nice, fiercely independent magistrates has agreed with the police that you are a public menace anyway), or by conditions of varying severity being levied against your being at large.

The trial opens, and closes within a day with an acquittal, for one (or all) of the reasons stated previously. The police - having taken against you for not having laid down and confessed, or because you said something disobliging about the detective who interrogated you (comparing the mole on his neck to a nursing labrador's nipple, for example), or simply because they are embarrassed by having gone that far with the case and ended up without a career-enhancing result - then try to salvage some face (with or without mole) by getting up in front of a magistrate and claiming that they 'believe' that you pose a 'risk of harm'. A 'sexual risk order' is duly granted. An order which would be expensive and time-consuming to challenge, and would lead you - for a period of at least two years in the case of a full order - to have to tell the police twenty-four hours in advance if you want to give your own wife/husband/partner a good one in your own bedroom.

Then how would you feel about how justified circumventing due process is?

For over two decades now (if not for longer), we have - in the name of 'public safety', 'security', 'good order', 'protectin' ver lickl'uns', or even in the name of mere cheap populism - allowed the most basic principles of what constitutes justice to be removed from their crucial positions underpinning the legal system of our society, and have permitted - even encouraged - their replacement by hearsay, administrative convenience, spurious plausibility and even outright vindictiveness.

And we comfort ourselves - even with the countervailing evidence which accrues around us every day - that it couldn't happen to us, that it will only happen - can only happen - to those whom we may safely regard down our own noses, not realising that removing the basic right of due process from them swiftly enables its removal from the rest of us as well. Niemöller's famous quote is overused, but it is referred to so often because it still contains an essential verity.

What we get as a result is what we deserve, and let no-one claim that it constitutes justice.