legal rights

A recently discovered, by me at least, Lib Dem blogger, Jamie Saddler, comments on the apparent decision by government not to press for a lower blood alcohol limit:

Epolitix are reporting that the government have decided against lowering the drink-drive limit from 80mg to 50 mg... This is all well and good, but they are the ones who would do this regardless of the limit, and need to be the exception. It needs to be spelt out to people that if you are driving, even one drink is unacceptable. [From Jamie Saddler: Government Gets It Wrong on Drink Drive Limit]

I wonder. I do have an interest here - I was done for driving under the influence and banned for a year, sixteen years ago now. In my case, it was a timely reminder, even though it led to years of bad times for me - losing my job and so on. Had I been caught a few years earlier while I was working in Glasgow I think I would probably have done time and I am probably truly lucky not to have had an accident in that time.

Nonetheless, when I was stopped, I will always remember the first words the officer said to me: "Good evening, sir, you haven't done anything wrong, but we were following you for a while and we felt you took that last roundabout a little carelessly so we wanted to stop you and have a word; first, I'd like you to provide a sample of breath to testing for alcohol content."

They had been following me for some time, on otherwise empty roads mid-evening in Birmingham and approaching an empty roundabout I had taken a straighter line - inside-outside-inside - that someone a little more perfect would have done perhaps. I had done nothing wrong. They said.

Nothwithstanding all this though, I still wonder if drink limits are the right, or at least the most liberal, way of dealing with this nasty social problem of people who drink, drive and then injure or kill others or property. And I certainly question the common message that Jamie repeats that "even one drink is unacceptable". I rarely drink at all nowadays. I have a good relationship with alcohol. I regard it as one of the worst drugs available, even though legal, and take it generally with caution (okay, I had a few large whiskies on Saturday night but was taking a taxi, but was perfectly lucid).

But recently I was out in the car meeting someone and had two pints and drove home. They were nice pints and next time I visit I will take the bus because I would have enjoyed more. But over three and a half hours I drank two pints of ale, and "the alcohol in one pint of ordinary strength lager will take two hours to pass out of your body" [Bupa guidance]. So I'm probably right in saying that there may have been the equivalent of less than half a pint in my system when I drove away.

The problem with having a law that specifies a uniform amount for everyone and above that is a crime regardless of whether you are behaving dangerously or not, or even using a mobile phone, or driving whilst exhausted, or smoking, or eating, at the wheel, or on drugs, and so on is that you just have to keep adding extra clauses, extra laws to deal with new situations.

The problem with having a more general law of "dangerous driving" is that it appears to introduce some subjectiveness into the legal process. You are no longer asking whether a person was simply, objectively, over a certain limit, but whether the "man on the Clapham omnibus" would consider that you were acting dangerously.

The former also, almost by definition, involves trawling for offenders and in the process interfering with the perfectly legal comings and goings of law abiding citizens. And it really doesn't respect a notion of causing danger. Just breaching a numerical limit. Whilst the latter is how we expect for British law to be dealt with more generally - involving intention, capacity, culpability, danger and the subjective decisions of a jury or bench.

Now, that's not to say that I want to see more people drink driving, or a rise in death and injury as a result. As a libertarian minded person though I do want people to have to take responsibility for their own actions. And therefore consider for themselves whether what they are thinking of doing may be dangerous to themselves or others. The arbitrary, numerical limit takes away that responsibility in a way.

In the case Jamie mentioned:

I do not understand why this is dealt with under "causing death through dangerous driving" and not manslaughter. Manslaughter of course allows for a life sentence. A few life sentences and people would start thinking a bit more about whether it's worth testing their alcohol fuelled infallibility. If people are prevented from drink driving simply for fear of breaking a limit that will result in the loss of their license if they are unlucky enough to get caught by police, how much more so by the possibility that their journey might end in a prison cell for life if they take a gamble and lose?

I have no problem with using any of the impairment inducing activities - taking drugs, eating, phoning someone, smoking, driving too tired and so on - as aggravating the culpability and pushing more towards higher sentences. But is this not a case where "tough liberalism" punishing the consequences and not creating arbitrary laws that simply apply to everyone, dangerous or not, could once again reduce the burden of legislation and the arbitrariness of laws to deal with different substances and activities, whilst focussing peoples' minds on the real consequences of their actions?

Around 7.5% only of "KSIs" (killed and seriously injured) in road traffic accidents are causally linked to alcohol, and I believe this figure includes when the drunk is the pedestrian that staggers out in front of a perfectly legal driver and is killed or injured.  Which suggests to me that the greater rewards will now be found dealing with other forms of anti-social driving.  I nominate middle-lane-itis and misuse of the acceleration lane for starters.

Yes, I'm still meant to be on internet silence, but Linux and various bits of software have me stumped for a while until I get some help from the mailing lists, so I thought I'd cast my mind over the implications of the court case this week that resulted in a jury deciding that it was okay to commit a crime in order to prevent what the perpetrators believed would be a greater harm in the future. The case in point was that they had committed (and admitted) criminal damage by climbing a chimney at a Kent power station with the intent of scrawling graffiti on it in protest at its pollution record and plans to expand the facility, which, their oh so clever advocate declared would cause more and more widespread damage to people and property through the global warming it would contribute to.

Now, some of the more unthinking environmentalists might see this as a great victory. A court recognized that global warming was such an imminent threat to life and property that it was justifiable to commit brazen thuggery leading to criminal damage on anything that allegedly contributed to that global warming. Yay!?

Nay! I have two problems with this.

First is the acceptance, apparently by both judge and jury (and so, you may think, all "reasonable people"), not just that anthropogenic climate change is a fact but also such a grave threat that it justifies individuals taking the law into their own hands. To my mind this is still a matter in the political arena. Not only are there still, and perhaps growing, voices of dissent on the very premise of the debate; that mankind is responsible for such a change that it is a threat to the planet's very future. But also about what to do about it and when. A power station after all merely supplies a demand. Is the power generator guilty or the consumer making those demands? It is more dangerous to disrupt existing dwindling supplies before we have worked out how to replace them with cleaner affordable technologies? If the threat from global warming is real, so presumably is the threat of harm through disrupted power supplies.

Second is how this operates as a precedent in other, possibly more serious cases - although I heard someone saying that this decision will not be treated as forming a precedent, I'm not clear how that can be prevented. It is okay to murder an abortionist in order to stop the immediate harm to others he or she will cause? That threat, after all, is far more immediate and traceable to an individual than the effects of a single coal power station amongst all the coal fired power stations and other "climate vandals". We're starting to get not only into the realms of Philip K Dick's pre-crime but vigilante prevention of what individuals claim may be a pre-crime. This is hardly the basis for the rule of law.

Oh, you can say that no court is going to acquit a murderer because they thought they were preventing a bigger crime, but actually we already do. The "reasonable force" defense can be used to justify a death in the process of preventing an immediate threat to others' life. This decision seems to extend the boundaries of "immediate threat" let alone accurate identification of the person causing that immediate threat.  One could, and many do, fight abortion on the basis that the most immediate threat t future generations of humanity is eradicating them before they are born.  If we're going to adopt a principle (and I do) that we have a responsibility of stewardship not to harm future generations' survival on the planet then it would be legitimate for others to argue more forcefully that we have a responsibility to see those future generations actually survive as far as birth!

Anyway, two odd sounding sources provide what I believe are better alternative "precedents" to work from. First, there is a Catholic maxim that it is not legitimate to cause one moral bad, or an act that could foreseeably lead to morally bad consequences in order to prevent another, even near certain, specific bad. It is used mostly about abortion again. It is used to argue that it is not even permissible to abort a new life in order to prevent the death of the mother - often in the circumstances of an ectopic pregnancy for example.

Of course the world's aggressors, including the US and UK, routinely ignore this. They argue that foreseeable "collateral damage" is permissable to remove a dictator, for example. It is not. Terrorising and killing the people of Bagdad in "Shock and Awe", even as "collateral", was morally repugnant, notwithstanding our general agreement that the regime they were trying to punish or remove was also morally repugnant. The results of ignoring of this basic principle are there for us all to see - there can be little doubt now that more people in Iraq have suffered for longer under the oversight of the western occupying forces than it is likely would have happened at the hands of the previous repugnant regime. At least there could have been alternatives that held less potential for further suffering.

But on the environment, the libertarians' respect for the rule of law provides a better alternative to various bearded crusties climbing a chimney and committing vigilante criminal damage. Locke's proviso can be used, for example, to tackle pollution. If you, a power generator or anyone else - a pig farm even, pollute the atmosphere we both have to share, we have the right to legal remedy. Just as much as if you came along and started digging a hole in my prize rose border. Indeed this ought to work better than any political "solution". Protectionism is a political strategy, and even Green politicians will forcibly protect their favourite, in this case, power generation mechanism against legitimate complaint of harm. If planning permission were truly privatised, those affected most would almost certainly do better out of it than they will once the government has removed most of their rights in order to force their political idea of strategic energy infrastructure through.

Yes, we all need power, but left to ourselves we would probably not choose to have a nuclear reactor at the bottom of our garden. But, as they say, everyone has their price. If, collectively, my neighbourhood decided that the compensation on offer was enough when weighed against the costs of electricity or the convenience of not having a long transmission route or any potential danger they'd accept that nuclear reactor. If nobody accepts any price for nuclear, they have to weigh that decision against the potential alternatives. If nobody wants a giant power station, then we perhaps have to accept that we will have to help our neighbours fund micro-generation.

Just by way of another brief interlude in my self-imposed blog silence while I am upgrading software and design, I wanted to mention the wonderful speech I heard yesterday. One of the nice things about being one of the university's governors is that I can get to choose to go to pretty well any number of graduation ceremonies. I don't avail myself of the privilege terribly often, but I went yesterday evening to the graduation ceremony for most of our law students.

The honorary graduand was Clive Stafford Smith, the British born US based death-row lawyer and campaigner against the death penalty and torture and all things Guantanamo. As I understand it, he is, like many passionate campaigners, if not many lawyers, not terribly well remunerated, to put it mildly. His clients tend, almost by definition, to be amongst the poorest, often least educated in US society, and they have no legal right to representation once the sentence is handed down. There's not a lot of money in death penalty appeals or sticking up for the disappeared in America's network of secret GTMO-like prisons.

So he was appealing for these bright young starry eyed graduates to come and be exploited by his charity, Reprieve, for a few months, or more precisely, their parents to fund them while they are there. He promised an experience the like of which they are unlikely to find in a whole career at the Old Bailey or the corridors of corporate power. While they may dream of millionaire partnerships at Clifford Chance, he does it because it is fun! You cannot imagine the fantastic feeling you get, he says, when you "whip George Bush's ass in the Supreme Court" and defeat the world's only super-power in their own courts.

And when you think about it, how do we measure success? Is it the money? Or perhaps the satisfaction of a David victorious against Goliath.

...but I didn't speak up because I was not in jail.

(with apologies to Pastor Martin Niemoller)

Now it seems "mens rea" is at risk in the British legal system. In a case highlighted in the British Journal of Photography an academic at Sheffield University who ran a legitimate business in his spare time creating artsy photographs of models and children to make them look like fairies by superimposing images on each other (I know, I can't quite imagine it either, but presumably to make them look ethereal - and he has exhibited such work in local art shows and so on) has been convicted of making indecent photographs of children and sentenced to 150 hours' community service.

Parents of two girls commissioned the work and were in the studio with them most of the time, and were happy with the work, but he was shopped by staff at the film processing company, his home raided and his computer confiscated. Even the judge told Dr Marcus Phillips that he had 'always acted perfectly properly', adding that it was clear Phillips 'had no base motive, no sexual motive and there was not any question of deriving sexual gratification' from the work. The Judge also commented that the parents of the children were 'perfectly law-abiding, sensible people who cared for their children'.

You can read the rest of the story at the BJP website.

Now, apart from being a stark reminder of the over-hyped panic over photographing children that has meant people are scared even to take photos of their own kids' important moments such as school plays and sports, I always thought that there was a test called "mens rea" in English Law in which the intent of the perpetrator of an action was taken into account - you have to intend to commit a crime as well as actually carry out the criminal act. Also, I thought we had a sentence available called an "absolute discharge" which it seems to me from the judge's comments would have been more appropriate in this case. Have both of these concepts gone? Where? And when?

It seems you no longer have to intend to commit a crime, let alone know that your actions could be criminal, to be convicted and sentenced, and no doubt with a case like this involving children, have your reputation and possibly career torn to shreds. Which seems to me to be a pretty serious erosion of our legal rights.

Earlier this evening I found a quotation by Clement Atlee about Habeas Corpus on the Total Politics political quotations database:

"The real test of one's belief in the doctrine of Habeas Corpus is not when one demands its application on behalf of one's friends but of one's enemies."

It must be even more important to preserve our right to be judged by our intentions; there are all sorts of situations in which people could be committing a crime unknowingly and harming nobody in the process.

Hat Tip to the Libertarian Alliance Yahoo Groups mailing list.