Rowan Laxton and Too Many Laws

21 10 2009

Category: Law, Politics, Criminal Law, Rowan Laxton

The case of Rowan Laxton (see below) highlights how complicated criminal law has become: When I read all the coverage I wasn’t exactly sure what he’d been charged with.


The Press all said it was ‘Racially Aggravated Harassment,’ Isn’t that what he was charged with?

Racially aggravated harassment could actually cover a number of things…

Racially Aggravated Harassment

If the reports were being literal then that would have suggested a charge under the Protection from Harassment Act 1997, which has a racially or religiously aggravated form under section 32 of the Crime and Disorder Act 1998.

A conviction under that act would, amongst other things, require a ‘course of conduct‘ amounting to harassment which wouldn’t be satisfied by Laxton’s behaviour.

Incitement to Racial or Religious Hatred

According to Joshua Rozenberg, when he was originally arrested it was for an offence against the Racial and Religious Hatred Act 2006, which states that:

’29B(1)

A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred.’

But it would have difficult to show that Laxton had the requisite intention to stir up hatred. From reading an account of what took place it would have been unlikely that he would have been, or ought to have been, convicted of that charge.

Threatening, abusive or insulting words or behaviour

From the coverage I was able to piece together that he was actually charged with a public order offence – the BBC quoted the Foreign Office as saying he’d been charged under s.5 of the Public Order Act 1986 and it was clearly the racially aggravated form of the offence.

Sounds Very Technical

This is emblematic of the confusion wrought by the introduction of more than 3,000 new criminal offences by Labour (The Open University puts the figure at over 3,000 in 2008. The Liberal Democrats touted a figure of 3,600 in the same year).

Why is it bad to have more laws?

On the face of it one might think that more precise laws were more just. The reality is very different. Having more laws for the most part creates more confusion.

How it used to work

Traditionally English law is a mix of statute and common law. What that meant in practice is that parliament passes a law. When cases crop up that involve that law they often throw up situations that were not delineated in the law. The judgments on those cases are then taken into account in future cases where the relevant issue crops up. It’s evolutionary and organic and takes account of social and criminal development. When laws are completely out of line with the reality of the criminal justice system, parliament creates a new law. It’s a system that worked for centuries.

But surely it’s better to have tailored laws

Unfortunately it’s much worse to try and cover each specific situation with a law. It causes confusion; increases costs; slows justice; complicates matters; introduces uncertainty; and undermines faith in the justice system.

Confusion

Having too many laws that are too specific creates confusion because there are already laws that cover the vast majority of offences that the new laws try to tackle. So when the police turn up to arrest someone, they have to work out exactly what grounds they have to arrest them and they don’t want to get it wrong. That means the police who are recruited have to have an encyclopaedic knowledge of statutes. It means that they have to spend much more time considering and consulting about what to charge someone with and importantly whether to charge someone. And then they have to spend more time having to justify their decisions. And their further enquiries and interviews will be tailored to a particular charge, causing potential problems if the charge is not the correct one.

Then the file goes to the Crown Prosecution Service where a lawyer has to decide whether to charge and what with. He or she has to go through the same process of marrying the offence with the exact crime. This again requires more time, slowing down the process of justice and requiring more lawyers as they spend more time considering and consulting on charges and having to justify those decisions. Because the system is more complicated there is a greater chance that police and prosecutors will get it wrong leading to more people getting charged with the wrong thing, people who could be charged not being charged, and people who ought not to be charged being charged.

Court time

The particular charge will lead to specific requests from the Defence. There is less of an understanding between the court, defence and prosecution as to what is involved in proving the charge which slows things down as the defence requires information that may or may not be relevant and the prosecution considers whether or not it is relevant and court time is taken up with hearings occasioned by these disputes and misunderstandings, and by amendments to charges when necessary.

Once trial comes around, effective prosecution becomes more difficult because the prosecutor has to be familiar with a greater number of offences in a greater detail. Because each new law generates case law there is a multiplicity of refinements and sometimes contradictions within that case law meaning a greater chance that the trial will have to consider more case law the participants are unfamiliar with in more detail taking up more court time and resources.

There is also a greater chance that offences and case law will not be properly understood leading to offenders wrongly being convicted or discharged. There is also more chance that cases will need to be appealed leading to further pressures on the court process.

In the Magistrates’ Court the mass of laws creates an unfair and intolerable burden on lay justices who have to rule on complex and arcane issues of law which they simply should not have to do and ought not to be expected to do.

Messy

In short it makes things messier, and messier means less justice. And more cost; massive costs to enact the new laws and a further crippling burden on the criminal justice system forced to work with the bloated statute book.

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