On the ECHR

One of the few interesting courses I took as a law student four decades ago was in jurisprudence, or the philosophy behind the law. We studied people like Hugo Grotius, a Dutch writer who lived in the late 16^th and early 17^th centuries.

He wrote on something called natural law, an attempt to distil moral concepts into a body of rules that should govern all human behaviour. His contribution was to say that it was possible to evolve such a code without any divine intervention, and that if religious principles ran counter to this, they should be discarded.

If the law of God is unjust, it is no law at all, he said. (I paraphrase.) This was daring stuff for the time, and in a Catholic country would have brought him to the attention of the Inquisition. Fortunately, Grotius lived in the more enlightened Dutch Republic.

The principle became one of the foundations of the Enlightenment, see this blog passim. What has it to do with the European Court of Human Rights? Well, wind forward to the Allies’ victory in Europe and the Nuremberg trials. One of the defences put up by Germans in the dock there was that their actions were not actually contrary to the laws of the land, as they existed in Germany at the time.

This gave the Allies in the west some pause for thought. (The Russians, understandably, had no truck with such sophistry.) If the actions the defendants were on trial for were not illegal at the time, how could they be deemed illegal now? The (western) Allies were keen not to have the proceedings at Nuremberg appear a case of “victors’ justice”.

They fell back on the concept of natural law. The laws that allowed the defendants to carry out such actions were illegitimate because they ran contrary to any proper code of law.

Most people have a vague belief that the ECHR has something to do with the EU, Brussels, interfering eurocrats, etc. On the contrary, the ECHR was set up by the Council of Europe, separate from the EU though, confusingly, sharing the same flag and anthem.

The Court was created to enforce the principles of natural law and basic human rights. It would ensure that, if any country that had signed up to them subsequently passed laws that contradicted them or breached them, its citizens would have some authority to appeal to. That authority, the court, could overrule those laws and protect those basic human rights. What happened in Germany in the 1930s could never happen again.

The Conservatives say they will pull the UK out of the ECHR and ensure Parliament is able to overrule its decisions. It is true that many believe the Court has exceeded its authority and extended its remit into areas where it was never intended to go. It is true that some judges there are drawn from countries with debatable human rights records, and some do not appear terribly professional.

But disentangling the UK from the ECHR would be rather less easy, and raise more difficult constitutional questions, than some tub-thumping politicians may claim.

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On Natural Justice

I have been reading an interview with the former President of the Oxford Union, who was arrested and taken away at dawn over an allegation of rape. No charges were brought. There was a particularly dunderheaded campaign against him by various people who should have known better while the matter was being considered by the authorities. The man in question spent time in a police cell and on bail before hearing after six weeks that the case would go no further.

There is much debate over whether such allegations should attract anonymity, to prevent reputations being wrongly trashed in public, as appears to have happened here. There is an intriguing throwaway line in his account of his ordeal, though. He was “forced to pay £15,000 in legal fees”. This is in keeping with the experiences of those cleared in other recent high profile prosecutions over alleged sex offences.

£15,000? In a mere six weeks? I literally fail to understand how it can be right that someone who is never charged with an offence, or is cleared by a jury, can end up out of pocket – in one case, by several million pounds, if reports of that case are correct. Surely natural justice would require the state to pick up the tab for all expenses, whether run up by the prosecution or the defence, if the individual in question is cleared or charges do not proceed

Yet it seems to be accepted that in such cases that individual is expected to pay his or her costs. It must make it all the more tempting for anyone with a grudge to make spiteful and untrue accusations.

Of Juries, and the Police

There is a computer at Kingston Crown Court that loves me deeply. It is so impressed by my charisma, my intellect, my deep understanding of jurisprudence, that it has selected me for jury duty three times. In less than 40 years.

This is, statistically, out of the ordinary. But it has given me an an usual insight into the working of the jury system.

We learn that, post Hillsborough, post Andrew Mitchell, etc, fewer and fewer people trust the police. This will have an unforeseen effect on the jury system.

The average jury, and I speak as one who knows, is made up of a majority of Sheep and a minority of Wolves. Most people are unable to decide on a matter as important as whether someone is guilty or innocent. We weren’t there. How can we know what really happened?

It is the job of the Wolves to drive the Sheep to the proper conclusion. Most defendants who have made it as far as a jury trial are guilty. The alternative is that they are the victim of some ghastly conspiracy, involving the entire local constabulary. All the police are lying. Or of some weird, unbelievable coincidence.

In many juries, there is the odd Anarchist. Someone who believes that no one is guilty, on ideological grounds. That the police fit people up. They cannot be trusted. Some will be minor criminals themselves, unwilling to convict on the basis of, there but for the grace of God…

If trust in the police ebbs further, the number of Anarchists will grow. The number of majority convictions already reflects those people who will not convict, despite all the evidence. Get beyond a certain percentage, and the jury system becomes unworkable.

Take my advice. If you are guilty, opt for a jury trial. Your odds are better than 50/50.

Not that the jury system does not throw up the odd piece of genuine folk wisdom. As I walked out of one courtroom, a fellow juror turned to me. “He’s just a piece of Sarf London rubbish. I should know. I was married to one.”