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Fenton Bresler is a noted barrister and frequent commentator on British television. His books include Who Killed John Lennon?, The Chinese Mafia, Sex and the Law and Interpol. I love my country and its ancient legal traditions but I am sad, and not a little ashamed, to have to report that there is currently going through Parliament a criminal justice bill that represents the latest, and most serious, example of what many lawyers, myself included, consider to be a concerted attack on fundamental Anglo-American principles of criminal justice by Tony Blair’s Labor government since it came to power nearly six years ago. This not a political issue. Criticism has been cross-party among lawyers who are also members of Parliament. Indeed, comments by Labor lawyers in Parliament have been scathing. “We have a highly authoritarian and populist government that wishes to erode jury trial because it cannot control it,” protested Bob Marshall-Andrews, a Labor member of Parliament and a queen’s counsel (senior barrister). “The bill represents quite frightening attacks on civil liberties,” said Baroness Helena Kennedy, queen’s counsel and Labor appointee to the House of Lords. The controversy has raged outside Parliament, too. The civil liberties group, Liberty, has called the bill a “shameful attack on justice.” The Bar Council, a nonpolitical professional body representing all the barristers in England and Wales, has launched a campaign against what it calls an “objectionable” bill. A brief recital of five of its main provisions will, I think, be enough to surprise and disturb my American colleagues: Abolishing the ancient double jeopardy rule, a cornerstone of our criminal law for 800 years. Removing the right to jury trial in serious fraud cases, complex financial or commercial cases, cases with a risk of jury intimidation and-to my mind most scandalous of all-merely when defendants themselves choose to have their case heard by a judge alone. As Peter Rook, queen’s counsel and chairman of the Criminal Bar Association, has said: “These proposals are designed to ease the public out of its rightful role at the heart of the justice system.” Allowing juries routinely to hear defendants’ previous convictions and misconduct. It has always been the glory of Anglo-American jurisprudence that, as a general rule, a person should be convicted solely on the basis of the evidence that he has committed the particular crime with which he is charged, and not that he is the sort of person likely to commit that crime. But now, as Vera Baird, a Labor member of Parliament and a queen’s counsel, observed, this bill would trap people in their past. Allowing hearsay evidence to be used in court and forcing defense lawyers to reveal in advance the witnesses they intend to call. Until this government’s earlier Criminal Justice Act of two years ago, DNA samples and fingerprints routinely taken upon arrest were equally routinely destroyed if the defendant was acquitted. But the act breached this principle by allowing this data to be retained “for purposes related to the prevention or detection of crime, the investigation of an offense or the conduct of a prosecution.” The new bill now widens this power indefinitely and without restriction. But if the government wants a national DNA database of all innocent citizens, and wants to treat the citizenry as suspects, then there should be an open public debate on the proposal. David Blunkett, Tony Blair’s home secretary (roughly the equivalent of the U.S. attorney general), who is steering the bill through Parliament, claims that he is sweeping away legal obstacles to focus on “the search for truth and the conviction of the guilty.” He does not seem concerned about protecting the rights of the innocent. A quest for law and order The background to the controversy is that, in Britain today, crime is increasing-people feel at risk in their homes and on the streets. All political parties trumpet the cause of law and order. But how to achieve it? I have spent a great deal of my professional life in the criminal courts. I know that crime does not exist in a vacuum. It is a social wrong which reflects a profound social malaise. The answer is long-term-and expensive. It requires a re-thinking by society of its priorities. It requires eradicating the causes of crime: poverty, social injustices, bad housing, limited work opportunities, inadequate education and prisons that incarcerate but do not rehabilitate. But our increasingly Treasury-driven government has gone for the quick fix that does not require much state expenditure. The result is a triumph of expedience over principle, of the short-term prospect of more convictions over long-term loss in the quality of our law.

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