England Expects

January 15, 2009

There was a simple reason why criminals would be thrown to the wild beasts in the circus of Rome. The Emperor had created society by ridding the countryside of dangerous animals allowing the Romans to go about their business in safety. If a criminal had breached a law against society then he had “removed himself from society” and should be “returned to nature” by being thrown to the beasts.
It’s an interesting piece of philosophy that a criminal has broken the rules of society and therefore does not deserve to receive the benefits from society. In our modern world this philosophy has completely disappeared. For us, we are all equal in the eyes of the law and the law is equal in all our eyes. In other words every one of us, whether law abiding or not, accepts that the law exists equally for us as an individual as it does for any other citizen in this land. A mass murderer in prison serving a life term believes himself to have equal access to legal services, to representation by his MP and to protection from the police, as any other member of society, regardless of his conviction.
I once had a client in Belmarsh who was denied the opportunity to attend the county court regarding a possession application on his council flat due to non payment of rent. Although he didn’t need to be there he believed he had the right and so made his point by smashing a food tray into the face of a prison guard. The governor promptly agreed to allow him to attend the court but Group 4 refused to let him of the prison van, so counsel and I had to take instructions in the back of the prison van speaking to the client through the wicket of his cell door. The point made by this man was that the prison governor had no right to deny him his legal representation, nor does his conviction for kidnapping make him any less entitled to a council flat provided by the state. As previously put, he made that point by committing a further violent offence against the prison guard, which he will be punished for, but which will not make him any less entitled to his rights. According to the current application of law, he was correct in all of this; he is entitled to his rights.
Now I’m not saying that people who have been in trouble with the police should be stripped of all rights. I think the Americans are wrong to refuse social housing to anyone who has a criminal record. The simple fact is that vulnerable people do tend to get into trouble with the police and it’s the vulnerable that need to be housed. What I am saying is that when a person’s criminal behaviour becomes serious then they should be less entitled to the protection of society. When the criminal offence climbs the scale of seriousness, then that person’s right to the benefit of society should be stripped in direct proportion. I imagine that a sentencing judge would use a tariff system to calculate the reduction of rights and that this reduction would remain at its high level during the jail time, would be reduced while the offender is on license, and would remain as a lesser amount until the offence is spent. The loss or reduction of rights could affect healthcare, benefits, housing, legal advice as well as the rule of law.
My next example involves the complex argument that a crime cannot exist without a victim and that if a criminal has lost the right to be a victim then there has been no crime. I will illustrate. It is very common for a shoplifter to complain of maltreatment from the security staff after being caught. What used to be called a “clip around the ear” is now called “common assault” and an apprehended thief will not tolerate being assaulted by a security guard, as he still has his rights. Often the thief will admit having done the act of stealing but insists that the security guard be prosecuted for the assault. The thief is quite within his rights to insist on this prosecution, as the security guard has no defence of righteous retribution. If the rights of the criminal were reduced then the thief would have less right to be a victim. In this instance the police officer could dismiss the complaint made by the thief since the thief does not have a right to make a complaint, unless the assault was extremely nasty, in which case the police officer should judge that a prosecution should follow. So it’s not a question of whether the security guard has a right to give the thief a clip around the ear; he doesn’t, but it is a question of whether the thief has the right to be a victim of crime. In this circumstance, he doesn’t. Therefore no crime happened since you can’t have a crime without having a victim.
My final example is from a recent client of mine currently in Wandsworth jail. He asked me if he and his mates could get compensation from the government over a highly publicised lost a data disc with their personal details on it. I asked him if any damage had been caused to him through this mishap, and since there seemed to be no damage I took the view that they had no case. Now this may well be just a bunch of lags sitting around the breakfast table speaking mischief, but I think it’s more than this. The simple fact is that if you behave like a soft-touch then people will treat you like a soft-touch. In that capacity the society we build as politicians is no different to the character we build in our children. Can you imagine that group of lags queuing up under the circus while the lions are being warmed up on the sand above? Can you imagine them having a discussion about whether the Romans should pay them compensation due to the water being a bit tepid in the changing rooms? If you offer yourself up as a pushover, you’ll be treated as a push-over; if you demand respect, you’ll be accorded respect and that applies to yourself as a person, or to society as an institution. The problem we have in this modern day is that England does not expect every man to do his duty. If we want to strike the correct balance between rights and responsibilities then we have to create a society where England expects.