CRIMINAL "JUSTICE"

 

(July 1996)

 

Concerning the Criminal Justice Act, it is interesting to remind ourselves of two old-fashioned principles, once held in high esteem but nowadays overridden freely. One of these was that legislation should leave people as free as possible to run their own affairs in accordance with what they considered important, and that restrictions were only justified where they were interfering with the liberty of others. The other was that people were innocent until they were proved guilty.

 

Nowadays these principles are replaced by the idea that you should do whatever is necessary to bring about the sort of society, on a statistical basis, which most people would like to see. And treating people as innocent until proved guilty has obvious drawbacks in restricting the powers of the police to prevent every possible transgression. It is often pointed out that if the police are free to detain those whom they suspect of intending some transgression, they may successfully apprehend someone who is just about to set off a bomb in a crowded department store, harming the family life of many people.

 

On the principle of restraining people from damaging the freedom of others, one must have sympathy with the right of householders not to be assailed by noise and the right of farmers not to have their fields vandalised. However, what is deplorable is the idea that the police are now free to stop and search anyone merely on suspicion. The idea of searching for offensive weapons which might be used to harm others (although they may not have been used for it yet and might be intended for some unusual but innocent activity of a creative or cultural kind) seems closer to justifiability than searching, on suspicion or otherwise, for what are called `controlled drugs'. On old-fashioned principles it is difficult to see how making drugs illegal can be justified, since the harm done, if any, is usually only to the person using them.

 

Of course there are many ways that the idea of preventing people from infringing the freedom of others can be extended. We can try to prevent potential infringements on a statistical basis, so that we make illegal anything that may increase the likelihood that someone will infringe someone else's freedom. Or we can restrict people's liberty so as to prevent them from doing harm to themselves, even if on a statistical basis. So the ex-mental patient who tried to be too friendly to lions led to a great call for the curtailment of liberty of anyone thought to be at risk in this way. Such people are to be subjected to enforced drugging, and incarcerated if they fail to comply with the kind doctors' wishes because they don't like the way the drug makes them feel. Once incarcerated, the drugging can be forced upon them. We are supposed to believe that a qualified doctor is absolutely infallible in knowing who is at risk and at risk of what, a supposition not too well borne out by the number of murderers released from prisons for the criminally insane only to embark on another killing spree. I hardly like to draw attention to the evidence for the fallibility of the judgement of psychiatrists because I can foresee the ready solution. The only way of keeping everyone safe is to keep everyone who has ever been put into a mental hospital there until they die; in fact the maximum safety could be ensured by putting the whole population into mental hospitals, as the psychiatrists may have failed to detect some incipient dangers.