Just Law [Paperback]

"'Comes the hour. Comes the book. If Kennedy can't stir a reaction, then nobody can' Observer"

'Comes the hour. Comes the book. If Kennedy can't stir a reaction, then nobody can' Observer

Acute, questioning, humane and passionately concerned for justice, Helena Kennedy is one of the most powerful voices in legal circles in Britain today. Here she roundly challenges the record of modern governments over the fundamental values of equality, fairness and respect for human dignity. She argues that in the last twenty years we have seen a steady erosion of civil liberties, culminating today in extraordinary legislation, which undermines long established freedoms. Are these moves a crude political response to demands for law and order? Or is the relationship between citizens and the state being covertly reframed and redefined? (20040624)

A leading left-wing establishment figure confronts the government head-on. A stunning, closely argued challenge to the track record of undermining civil liberties, and a vivid, provocative survey of the state of law and justice today. --This text refers to an out of print or unavailable edition of this title.

Baroness Helena Kennedy QC is chair of the British Council, Chair of the Human Genetics Commission and a member of the Bar Association's International Task Force on terrorism. Her previous book was the highly successful Eve Was Framed: Women and British Justice. (20040624)

THE BENIGN STATE - A MODERN MYTH

WE ARE TOLD that today the state is increasingly 'benign', yet this is a modern myth.

'It is perhaps the biggest miscarriage of justice in today's system when the guilty walk away unpunished.' In a single sentence in a pronouncement on criminal justice reforms on 18 June 2002, the Prime Minister sought to overturn centuries of legal principle, a complete reversal of the approach to justice that every mature democracy in the world respects, whereby the conviction of an innocent man is deemed the greatest miscarriage of justice. Borrowing a soundbite from the Conservatives, Tony Blair explained that his legislative programme in criminal justice for 2002-2003 was 'to rebalance the system emphatically in favour of the victims of crime'.

Concern for victims is timely and right but it is not the same as justice. In his populist programme of reform the Prime Minister failed to appreciate that risking the conviction of the innocent does not solve crime. However, amongst his many attributes, the Prime Minister is not a liberal. He has brought a strong authoritarian streak to government and licenses his Home Secretaries to implement deeply illiberal policies. He wants more convictions and feeds the myth that the faults all lie in the safeguards currently provided for those who are accused.

I have spent my life in the law arguing as vigorously for the rights of those who suffer because of crime as for the accused. I like to think that it is this dual perspective which I can bring to the debate. Improving the system, particularly for women and children when they are complainants in cases of rape, sexual assault and abuse, has been a central plank of my work. But we must guard against campaigns to improve the position of victims by reducing defendants' rights. Maintaining that justice for victims can only be purchased at the expense of the accused is as dishonest as the claim that jurors are the source of miscarriages of justice. Those who claim that we need a levelling of the playing field between victims and defendants are deluding the public about the role of the state. The state is the real beneficiary when power is shifted.

Criminal practitioners, who prosecute and defend, know why civil liberties matter. The principles seep into the bones with every day in court. As Oliver Wendell Holmes, the American Supreme Court Justice said of his career: 'The life of the law has not been logic. It has been experience.' We know how devastating wrong judgments can be. Experience has taught us that rights are indispensable to democracy. However, it is not always simple to make the arguments, because civil liberties constrain the state from enforcing certain majority preferences. If you live by opinion polls and focus groups, they will tell you that there is too much crime, the system is soft on criminals and something ought to be done. There is nothing new in most of the public holding those views. But the risks attached to following the majority are precisely why protections and safeguards have to exist. Majorities can demand the death penalty, the majority resisted votes for women, the majority once thought slavery no bad thing. What is new is for a Labour government to mount such a wholesale assault on the underpinnings of the rule of law.

Why is this government attacking civil liberties? Are we seeing a case of wilful amnesia?

In the adversarial criminal justice system we do not start off from a position of neutrality. We start off with a preferred truth - that the accused is innocent - and we ask the jury to err on the side of that preferred truth, even if they think she probably did do it. I explain to juries that if they find themselves in the jury room saying I think she probably committed the offence or she may well have done it, they have to stop themselves short, because probabilities are not good enough. The criminal justice system is based on the fundamental value that it is far worse to convict an innocent person than to let a guilty one walk free. It is that fundamental value which is now in jeopardy.

In the wake of 11 September 2001, still reeling from the horrifying events, I received a telephone call from an American friend - a passionately liberal New Yorker - whose first words to me were, 'To hell with civil liberties.' It was a carefully designed curse because we both knew that surrender of such a household god could not come easily. However, in the face of such a devastating assault upon ordinary, decent people in her city, she wanted no truck with the cool reason of law and rights. She was still listening to the long moan of pain from those whose husbands, sisters, sons and lovers were killed. She wanted every young Arab on the turnpike rounded up and she boldly declared she was not averse to a bit of cruel and inhumane treatment if it drew intelligence of future attacks.

In debates about civil liberties the emotional power is always on the side of the victims. How could it be otherwise? We can all put ourselves in their place. Supporting civil liberties is not to stand in the opposite corner to victims, but to caution against the creation of yet more victims. But it is never easy to make the argument. People who have had no brush with the law find it hard to imagine what it might be like to be wrongly accused, how it might feel to be the young Arab on the turnpike; much easier to imagine the smoke filling our lungs, the heat of the flames on our skin, the crushing fall of masonry, the leap from skyscraper heights into oblivion.