The Real Protection of our Bill of Rights

Unlike the United States, the English constitution is unwritten. To eliminate our Fifth Amendment protection against double jeopardy would required that our Constitution be amended. Not so in England where double jeopardy has ceased to exist by legislative fiat.

Mad Dogs and Englishmen

By JOYCE LEE MALCOLMJune 17, 2006;
Page A11

With Great Britain now the world's most violent developed country, the British government has hit upon a way to reduce the number of cases before the courts: Police have been instructed to let off with a caution burglars and those who admit responsibility for some 60 other crimes ranging from assault and arson to sex with an underage girl.

That is, no jail time, no fine, no community service, no court appearance. It's cheap, quick, saves time and money, and best of all the offenders won't tax an already overcrowded jail system.

Not everyone will be treated so leniently. A new surveillance system promises to hunt down anyone exceeding the speed limit.

Using excessive force against a burglar or mugger will earn you a conviction for assault or, if you seriously harm him, a long sentence. Tony Martin, the Norfolk farmer jailed for killing one burglar and wounding another during the seventh break-in at his rural home, was denied parole because he posed a threat to burglars. The career burglar whom Mr. Martin wounded got out early.

Using a cap pistol, as an elderly woman did to scare off a gang of youths, will bring you to court for putting someone in fear.

Recently, police tried to stop David Collinson from entering his burning home to rescue his asthmatic wife. He refused to obey and, brandishing a toy pistol, dashed into the blaze. Minutes later he returned with his wife and dog and apologized to the police. Not good enough. In April Mr. Collinson was sentenced to a year in prison for being aggressive towards the officers and brandishing the toy pistol. Still, at least he won't be sharing his cell with an arsonist or thief.

How did things come to a pass where law-abiding citizens are treated as criminals and criminals as victims?

A giant step was the 1953 Prevention of Crime Act, making it illegal to carry any article for an offensive purpose; any item carried for self-defense was automatically an offensive weapon and the carrier is guilty until proven innocent. At the time a parliamentarian protested that "The object of a weapon was to assist weakness to cope with strength and it is this ability that the bill was framed to destroy." The government countered that the public should be discouraged "from going about with offensive weapons in their pockets; it is the duty of society to protect them."

The trouble is that society cannot and does not protect them. Yet successive governments have insisted protection be left to the professionals, meanwhile banning all sorts of weapons, from firearms to chemical sprays. They hope to add toy or replica guns to the list along with kitchen knives with points. Other legislation has limited self-defense to what seems reasonable to a court much later.

Although British governments insist upon sole responsibility for protecting individuals, for ideological and economic reasons they have adopted a lenient approach toward offenders. Because prisons are expensive and don't reform their residents, fewer offenders are incarcerated. Those who are get sharply reduced sentences, and serve just half of these. Still, with crime rates rising, prisons are overcrowded and additional jail space will not be available anytime soon.

The public learned in April that among convicts released early to ease overcrowding were violent or sex offenders serving mandatory life sentences who were freed after as little as 15 months.

The government's duty to protect the public has been compromised by other economies. Police forces are smaller than those of America and Europe and have been consolidated, leaving 70% of English villages without a police presence.

Police are so hard-pressed that the Humberside force announced in March they no longer investigate less serious crimes unless they are racist or homophobic. Among crimes not being investigated: theft, criminal damage, common assault, harassment and non-domestic burglary.

As for more serious crime, the unarmed police are wary of responding to an emergency where the offender is armed. The Thames Valley Police waited nearly seven hours to enter Julia Pemberton's home after she telephoned from the closet where she was hiding from her estranged and armed husband. They arrived once the danger to them had passed, but after those who had pleaded for their help were past all help.

To be fair, under the Blair government a host of actions have been initiated to bring about more convictions. At the end of its 2003 session Parliament repealed the 800-year-old guarantee against double jeopardy.

Now anyone acquitted of a serious crime can be retried if "new and compelling evidence" is brought forward. Parliament tinkered with the definition of "new" to make that burden easier to meet. The test for "new" in these criminal cases, Lord Neill pointed out, will be lower than "is used habitually in civil cases. In a civil case, one would have to show that the new evidence was not reasonably available on the previous occasion. There is no such requirement here."

Parliament was so excited by the benefits of chucking the ancient prohibition that it extended the repeal of double jeopardy from murder to cases of rape, manslaughter, kidnapping, drug-trafficking and some 20 other serious crimes. For good measure it made the new act retroactive. Henceforth, no one who has been, or will be, tried and acquitted of a serious crime can feel confident he will not be tried again, and again.

To make the prosecutor's task still easier, he is now permitted to use hearsay evidence -- goodbye to confronting witnesses -- to introduce a defendant's prior record, and the number of jury trials is to be reduced. Still, the government has helped the homeowner by sponsoring a law "to prevent homeowners being sued by intruders who injure themselves while breaking in."

It may be crass to point out that the British people, stripped of their ability to protect themselves and of other ancient rights and left to the mercy of criminals, have gotten the worst of both worlds. Still, as one citizen, referring to the new policy of letting criminals off with a caution, suggested: "Perhaps it would be easier and safer for the honest citizens of the U.K. to move into the prisons and the criminals to be let out."

Ms. Malcolm is professor of history at Bentley College and author of, inter alia, "Guns and Violence: The English Experience" (Harvard University Press, 2002).

This appeared in the Wall Street Journal on Saturday June 17, 2006 and is copyright by them