Burglarize a Store, and You Won't Even Have To Go to Court:

[Please note UPDATE below.] The Daily Mail (U.K.) reports on the new British policy:

Burglars will be allowed to escape without punishment under new instructions sent to all police forces. Police have been told they can let them off the threat of a court appearance and instead allow them to go with a caution.

The same leniency will be shown to criminals responsible for more than 60 other different offences, ranging from arson through vandalism to sex with underage girls....

A caution counts as a criminal record but means the offender does not face a court appearance which would be likely to end in a fine, a community punishment or jail.

Some serious offences - including burglary of a shop or office, threatening to kill, actual bodily harm, and possession of Class A drugs such as heroin or cocaine - may now be dealt with by caution if police decide that would be the best approach.

And a string of crimes including common assault, threatening behaviour, sex with an underage girl or boy, and taking a car without its owner's consent, should normally be dealt with by a caution, the circular said.

The Home Office instruction applies to offenders who have admitted their guilt but who have no criminal record....

The crisis of overcrowding in UK prisons has also prompted moves to let many more convicts out earlier.

It emerged last month that some violent or sex offenders, given mandatory life sentences under a "two-strike" rule, have been freed after as little as 15 months....

A number of crimes - notably shoplifting - are now regularly dealt with by fixed penalty notices similar to a parking fine....

I may be missing some important aspects of the British justice system that might explain why this is going on, and make it more sensible than it appears. Moreover, most crime is not committed by people who lack a criminal record, and if the British justice system continues to go after people who have such a record (which apparently includes "cautions"), then the free first bite at the apple might not have that much of an effect. Still, my quick reaction is that this is a bad idea, and is likely to substantially increase crime and reduce Britons' sense of security. The British burglary rate has apparently been falling since its mid-1990s modern records (see part 4.2), and is now at roughly the U.S. levels (see table 1). But it's still pretty high — 2.7% of all households are burglarized each year — and the essential decriminalization of first-offense burglary seems to me likely to drive it higher. (Incidentally, it may well be that some American and continental European jurisdictions have similar policies; I'm not suggesting that this is a quintessentially British failing.)

Thanks to Glenn Wright Bowen for the pointer.

UPDATE: I originally misread the story, and improperly titled this post "Burglarize a House, and You Won't Even Have To Go to Court" — according to the article, the caution policy applies only to burglaries of shops or offices. I've revised the heading accordingly; my apologies, and my thanks to the readers who e-mailed to correct me.

Britain also has Anti-Social Behaviour Orders, and together these two policies could have some perverse consequences.

Someone could burglarize another's house, beat them up and threaten to kill them, getting off with only a caution. But then littering twice (with an ASBO in the middle) could give them five years in jail.
4.5.2006 1:13am
Are they really trying to make Clockwork Orange a reality?
4.5.2006 1:28am
Rick Shmatz (mail):
This "new" policy is merely putting into law what is already common practice. Police in Britain routinely let individuals go for crimes ranging from battery, burglary, and domestic violence rather than have to file a mountain of paperwork and because the lenient justice system doesn't incarcerate them in the first place. Why file the paperwork when the you will see the same criminal on the street the next day anyway?

After all, in the liberal world, it is all the fault of society anyway. Why would they put someone in jail for something that is the fault of society?
4.5.2006 1:39am
Sarah (mail) (www):
Wouldn't the victims be able to apply for ASBOs and have the perpetrators of the burglary/assault/threat be put in jail for five years for being out after 8pm at night? If 97% of the things are granted, it seems to cast the idea of these cautions in the light of the police completely abandoning any real role in enforcing social order -- now it's a matter of whatever your neighbors are willing to complain about, instead of what the police are willing to arrest and investigate you for.
4.5.2006 1:46am
Splunge (mail):
Well...just as a thought exercise, I suppose there's a way it could work out. If one supposed that the point of maximum dread and despair in a young apprentice criminal's life is the first time in his life that the coppers snap on the lights and shout "Hands up, you're busted!", and that everything that happens after that -- the trip through the ghastly circus that is most Court systems -- on balance serves to increase the cynicism and contempt he has for the law, then it could be that, for that class of young criminals, detaching the effective medicine (being caught by the police and frowned at) from the poison (what happens to you after you are arrested) would increase the rate at which people are dissuaded from a life of crime.

An analogy: consider two methods of training a dog to stay off the couch: (1) Every time you catch him on the couch, you immediately shove him off, yell "bad dog!" angrily, and do nothing else. (2) You do the same as (1), but also, after an interval randomly varying between 1 hour and 3 months, you randomly decide to (2a) do nothing, (2b) yell "really bad dog!" angrily, (2c) beat him with your walking stick until his ribs break.

Which method will work? (1) may take longer than some more harsher punishment as consistently applied, but (2) will arguably never work at all. Punishment to be effective on animals who are rational but not too bright (the kind that would burglarize and get caught) has to be highly consistent to be effective. It may be that better results are obtained by trading reduced harshness for increased consistency.
4.5.2006 2:45am
XWL (www):
One way to make a crime rate fall is to not arrest criminals, and discourage citizens from reporting the crimes in the first place (that way you have a lowered crime rate and less unsolved crimes, too)

Worked in the Soviet Union, why shouldn't the UK follow their shining example?

(hopefully most folks detect a hint of sarcasm in the above remarks)

I also remember a discussion at suggesting that an eBay/Amazon effect is at work. Small appliances and electronics are too cheap to make stealing them profitable.

Why steal a microwave when you can buy a new one for £29.97? (which also seriously depresses the amount of money a fence can give for, or resell a stolen good at. To quote the Oscar winning song, "It's getting hard out here for a pimp (or fence)")
4.5.2006 3:10am
Brooks Lyman (mail):
It is been my understanding (see the Fraser Institute Report, for example) that crime rates, including burglary (and particularly "hot burglary" or home invasion), had been increasing in Britain since the mid-1990's when they banned most firearms and outlawed self defense using a weapon (any weapon, apparently), and that the rates had been increasing while those of the US had been decreasing. It's possible that I am mistaking "violent" crime for burglary which, at least when it isn't a "hot burglary,' is presumably not considered a violent crime. I'm not sure how much trust one should put into the Home Office figures, since so far as I know, reported British crime rates are based on convictions, not reported incidents. This, of course, makes the numbers look good since most crime does not result in either an arrest or (even rarer) a conviction.
4.5.2006 3:15am
Eugene Volokh (www):
XWL: As I read the report that I cite, the statistics are based on the British Crime Survey data, which tries to measure actual crimes (based on the responses of the people who are being surveyed) and not crimes reported to the police. The U.S. data I cite is gathered the same way.
4.5.2006 3:31am
Bob The Lawyer:
Brooks Lyman is dead wrong. English law on self defence is the same as it has been for hundreds of years - you are entitled to use reasonable force to defend your person, your property, or aprehend a criminal.

Even before the recent bans on firearm ownership, firearms were not generally held for self defence reasons (as opposed to sporting/farming reasons) - I don't think there ever been a firearms culture in the UK akin to that in the US.
4.5.2006 3:50am
Michael Mouse (mail):
What you're missing is that the UK prison service is close to bursting point. A recent study suggests that the jail population is likely to reach a new all-time high soon, and is already pushing at capacity (the study was by the Prison Reform Trust, which lobbies for change in prisons, but although the details have been quibbled over, there's not been a challenge to the fundamentals of the picture painted).

There's a long and unhappy tradition of nasty riots in overcrowded British jails during hot summers.

Even if you take a punitive (rather than restorative or rehabilitative) view of the purpose of prison, an overcrowded prison system is Bad News, if for no other reason than it's hard to maintain order under such circumstances.

Obviously, a capable Government would plan to avoid such a situation, but once you're in it, the only things to do are a crash capacity increase (which is promised) and strong measures to reduce the number of people locked up and the length of time they're put away for.
4.5.2006 5:40am
Public_Defender (mail):
To judge this, we have to know what the people in British prisons did to get there. The problem may be that some laws are too harsh, wasting prison beds on the least dangerous criminals.

Corrections departments in some US States are advocactes for less use of prisons and more use of serious diversion programs. Why? They see their populations and can tell 1) which guys did something stupid once, 2) which ones have a correctable problem, and 3) which ones are lost causes.

If you put too many category 1 and 2 people in prison, you lose space for the category 3 guys.

Also, as someone else pointed out, a "caution" can have real consequences in Britain. Unless you have specific facts about what conditions can attach to a caution, you can't assume it's just a slap on the wrist.
4.5.2006 9:12am
AppSocRes (mail):
James Lynch, 1995, “Crime in international perspective”, pages 11-38 in James Q. Wilson and Joan Petersilia, Editors 1995, Crime, Institute for Contemporary Studies Press, San Francisco, has some interesting and unusually well-thought-out cross-national comparisons of crime rates and punishment rates. Relevant for this discussion is his comparison of time actually served for different types of crimes versus incidences of each crime type.

For serious property crimes, for the sample of nations studied by Lynch, it appears to me that crime rates are inversely related to time served. This bolsters the observation that crime rates in the US during the past two decades have declined as rates of imprisonment (measured either as convictions per crime or time served per crime) have increased. The exact opposite pattern has been occurring in England and Wales, Scotland, and European countries. As these countries have softened enforcement and punishment their crime rates have been soaring.

Also, as Kelling, Bratton et al., might point out, announcing that you are essentially giving up on enforcing certain laws against serious crimes is going to have a dramatic impact all across the spectrum of criminal activity.

The British are making a serious mistake.

Contrary to a previous post, the British courts have been severely restricting the Common Law right to self-defense. One Englishman who used a wooden club to defend himself against a burglar wound up serving more time than the person who was victimizing him.

By the way, Ann Coulter has an amusing aside on how liberals view declining crime rates in the US. She writes something to the effect that only a paper like the NYT could unblushingly scribe a headline like: "Paradoxically, prison populations rise during a period of declining crime."
4.5.2006 9:58am
Paul S (mail):
I suspect the devil is in the detail. I cannot find the home office guidance anywhere, but this report in the Telegraph
suggests that the guidance relates only to burglary of commercial premises. It's not in relation to these, but in relation to domestic premises, that the public fear of crime is highest. Even there, I suspect, it will be limited to what would be seen as minor offences. For instance, students are rather given to stealing road signs and traffic cones and so forth. I think it is that sort of offence that this is probably directed at.

The general thinking behind cautions, as I understand it, is that from time to time people whose behaviour is generally pretty acceptable do something which is criminal and that, provided they admit their guilt and have no other record, it is sometimes better to "let them off" with a caution rather than put them into a system which will probably, even if they plead guilty, receive a pretty small sentence. The feeling is that they will or may have "learned their lesson" as a result of a pretty stern talking to by the police, and that it is not worth going to the trouble and expense of putting them through the complete criminal justice system for the sake of any additional deterrent effect.

I doubt this is aimed at people who would, if they pleaded, be in line for a custodial sentence. So, although there is a problem with prison population, I doubt this is aimed at that. To solve that problem one has to focus on people on remand waiting trial and on custodial sentences, and I just don't think the sort of offence this looks to be dealing with (ordinary assault, possession of small quantities of drugs etc) would likely fall into those categories.

On guns by the way: the UK has always had very strict gun control laws (which is not to say that criminals never carry guns). To have a gun you had to have a good reason and be carefully checked out, and no-one was allowed to keep them for "self defence". The use of any sort of firearm (or anything that even appears to be a firearm) in the course of committing another crime attracts serious uplift in the sentence. The change in the 1990s was to prevent any ownership or use of handguns whatsoever. It was a response to a "rampage" shooting. I doubt it had any perceptible effect on crime rates.
4.5.2006 10:09am
Anon1ms (mail):
I'm old enough to remember when police in the United States often excersized a similar strategy when dealing with youthful crimes.

Two examples comparing the 1960s to today:

In the 60s a teenager caught with a fake ID would have it confiscated by the police and be told to go home. In today's America a fake ID can -- and will -- lead to a felony charge.

In the '60s a car full of teenagers who "mooned" a group of fellow students, but are seen by someone else and reported, would be called by the police to bring their parents to the station where they would be given a lecture and warning. I have no doubt that today, in our tough on crime culture, those kids could easily be facing sex-offender charges.

Are we better off today?
4.5.2006 10:33am
Unnamed Co-Conspirator:
Splunge, of course you are correct about dog training, but one of the reasons "bad dog" is effective is that a dog is a social creature who is hard-wired to behave in a way that best enables him to fit in to his society (a pack, his master's household). A man is not a dog; the equivalent of "bad dog" to a burglar is not punishment and therefore has no corrective effect whatsoever. Because the UK has unwisely disarmed the law-abiding portion of its population, the best available option would seem to be the walking stick.
4.5.2006 10:38am
Anderson (mail) (www):
What Paul S. said. EV quotes the item about burglary of commercial premises, then he cites the stat about burglary of residences.
4.5.2006 10:53am
SenatorX (mail):
So each cop gets to ad hoc be judge/enforcer? Seems like a piss on the Rule of Law to me. It would be interesting to see corruption stats on beat cops from this point on.
4.5.2006 11:26am
Alfalfa Male:
The policy sounds like an invitation to more police corruption. It gives the police officer more discretionary power, which will result in more bribery attempts.
4.5.2006 11:34am
Houston Lawyer:
We are awful close to April 1st. Are we sure this is not a spoof?

That FEMA money is going to run out soon and I need to get my concealed carry license.
4.5.2006 11:38am
Hans Bader (mail):
This is absolutely insane, letting off people who commit burglary or even threaten to kill.

Frankly, I doubt that England's burglary rate really has fallen to U.S. levels. I think it is more likely that given the short shrift police give burglary victims, they simply aren't bothering to report many burglaries. Underreporting is probably massive.

In France, where my wife comes from, burglary is so endemic that home insurers require multiple locks on houses and other elaborate preventive measures. And yet, official statistics don't show that high a burglary rate, because so many burglaries are unreported.
4.5.2006 11:50am
The over population of UK prisons is the rational backing the new directive. The problem is that prison population doesn't decrease by simply reducing the cost of committing crime.

Public Defender has a nice argument, but the logical conclusion probably wouldn't be acceptable. If police can identify category 1 &2 criminals from category 3, then the UK directive suggests that police have category 1 be cautioned, category 2 get treatment, and category 3 be imprisoned. However, how many liberal Britains would like the idea that the police, rather than juries, get to choose who is imprisoned?

I think the directive is silly, but I must admit that petty theft is something I think can be dealt with by simple police intimidation. Yet, that works because a burglar, if caught, loses his loot. Thus the burglar has to weigh the effort to heist something vs the possibility of ending up with nothing. Drug possession is somewhat the same; buy drugs, get caught, lose drugs.

However, I don't see how the directive works for assaults and sexual crimes. I think most can relate to having a moment when you just wanted to "teach someone a lesson", but refrained because of legal ramifications. Remove the ramifications, and now the cost of assault is much lower and the benefit remains exactly the same.
4.5.2006 11:56am
"If you put too many category 1 and 2 people in prison, you lose space for the category 3 guys."


They could just ship group 3 to Australia... =0)
4.5.2006 12:02pm
Clayton E. Cramer (mail) (www):

It is been my understanding (see the Fraser Institute Report, for example) that crime rates, including burglary (and particularly "hot burglary" or home invasion), had been increasing in Britain since the mid-1990's when they banned most firearms and outlawed self defense using a weapon (any weapon, apparently), and that the rates had been increasing while those of the US had been decreasing.
As I understand it, the Offences Against Persons statute of 1862 is still the statutory definition of lawful self-defense, and allows use of a firearm or other deadly weapon only if you are attacked with the same--which puts a group of thugs using fists and feet at a tremendous advantage. I understand that the courts have taken an increasingly narrow view of that law, however. Where there might have been some hope in 1900 or even 1950 to get away with arguing self-defense when using a gun, there is no real possibility of that today, except in a very narrow set of circumstances.

The bigger issue, of course, is that guns operate primarily as deterrent. Bad guys aren't interested in seeing their victims go to prison; bad guys want to survive a hot burglary. They know today that unless they are attacking another criminal, the chances of being shot are effectively zero.
4.5.2006 12:24pm
Andy Freeman (mail):
> the UK has always had very strict gun control laws

No. The UK's gun control laws date basically from just after WWI. (There were restrictions on weapon ownership by folks who worshipped incorrectly at various points.)

The City of London had long-standing restrictions.

BTW - A gun owned for other reasons is still potentially useful for self-defense.
4.5.2006 12:41pm
Clayton E. Cramer (mail) (www):
No. The UK's gun control laws date basically from just after WWI.
To be more precise: the first regulation of concealed carry dates from 1870, and appears to have been strictly a revenue matter. The Pistols Act 1903 attempted to keep handguns away from minors and the mentally ill. The Firearms Act 1920 is the first modern British law that attempted to restrict pistol and rifle ownership. You can read a bit about the history of the Firearms Act 1920 here.

I made extensive use of the Cabinet papers declassified in 1969-70 to demonstrate that the Firearms Act was passed in response to fear of a Bolshevik uprising--and that there was an intentional lying to the public about it being a crime control measure.

An excerpt:
The P.M. "You won't get sabotage at the beginning of the strike."

Roberts. "You will have to take sabotage at the beginning of the strike into account. There are large groups preparing for Soviet government."

Eric Geddes. "You have got to reckon on the electric power stations being put out of order."...

Macready. "On our information we do not run to the revolution yet. If there is an outbreak of strikes and if there is a sufficient force available, civil or military, to stop it at once, it will fizzle out. We were told today that 700 rifles were concealed in Liverpool. Supposing sabotage and violence get ahead it is very difficult to say how far they will go. We are taking private steps to secure the aid of a certain class of citizen."...

Long. "The peaceable manpower of the country is without arms. I have not a pistol less than 200 years old. A Bill is needed for licensing persons to bear arms. This has been useful in Ireland because the authorities know who were possessed of arms."

Shortt. "The Home Office has a Bill ready but in the past there have always been objections."

Bonar Law. "All weapons ought to be available for distribution to the friends of the Government."
4.5.2006 1:08pm
Wintermute (mail) (www):
So much for the core function of government.
4.5.2006 1:25pm
Public_Defender (mail):
I think some of the readers are confusing British cautions with the kind of warnings American cops giver motorists.

At a minimum, cautions can require restitution and some form of "rehabilitative" conditions. And according to this site, the Blair government is proposing that police be allowed to attach "punitive" conditions to cautions. If the bill passes, Professor Volokh's next headline on the subject could be:

Burglarize a House, and You Won't Even Have To Get to Go to Court

It would be helpful if someone knowledgable about British cautions could explain what consequences can attach to a caution.
4.5.2006 1:51pm
Nobody (mail):
The headline of this blog post contains a SERIOUS error--the article says nothing about burglarizing homes. It makes clear that the new policy applies only to "burglary of a shop or office." Why would the professor intentionally mislead his readers?
4.5.2006 3:11pm
Public_Defender (mail):

I'm embarrassed I didn't catch that error.

I see no reason to accuse the professor of "intentionally mislead[ing] his readers[.]" We all make mistakes. This is a blog, not a carefully edited law review article.

On another topic, remember those quaint old days when saying that someone "burglarized a house" was redundant?
4.5.2006 3:27pm
Here is a link to the 2003 Criminal Justice Act regarding Conditional Cautions.

There are two cautions available, a simple and conditional. I didn't include simple, since it is the basic slap on the wrist. It is only more than a slap, because it is officially recorded that you received the slap, and therefore if an opportunity arises to slap it again, an officer might learn that it was indeed slapped before (the Monty Python guys could have fun with this).

A conditional caution requires 5 conditions be met before it can be issued, as opposed to 3 conditions for a simple caution. The conditions applied include either rehabilitation, reparations, or both. For any caution to be issued, the offender must admit guilt.

The admission of guilt concept would put lawyers out of a job. It certainly is a interesting twist to the prisoners delimma. Plead guilty and you might receive a caution, but if the officer so chooses, you might be tried in court. If you plead innocent, then you might be tried in court. This sounds similar to the defensive driving option for speeding tickets. Plead no contest or guilty and you might get defensive driving, but plead innocent then you get a jury trial.

I still prefer such law be confined to moving violations vs assault or home burglary (which is a crime that can receive a caution judging by my reading of the law and directive combined). I'm not saying this is rational in terms of statistics, as I'm sure someone can point to data that shows more deaths are caused by speeding drivers than from assualt. Also the decision of "defensive driving" comes from a judge, not a police officer (except when the corrupt officer slides the "estimated speed" value to either make things easier or harder on the offender).
4.5.2006 4:06pm
Dave L (mail) (www):
What I don't understand is, if there is a problem with overcrowding in prisons, why don't they just build more prisons? I know it costs money, but you'd think it would be a high priority if you're letting criminals go because you don't have enough space. No matter how much money or effort you use you can't make sure no one ever turns to crime, or catch every criminal, or convict every one you actually catch, but you there's no reason you can't imprison everyone actually convicted and to let jails get so crowded that there's no room for more prisonoers is simply inexcusable and an affront to justice.
4.5.2006 4:32pm
Anderson (mail) (www):
I see no reason to accuse the professor of "intentionally mislead[ing] his readers[.]" We all make mistakes. This is a blog, not a carefully edited law review article.

No such accusation from me, though it does seem like time to change the post's title.

(EV being a law prof, he &Public Defender are probably of the same mind, &instinctively take "burglary" to imply "burglary of a residence.")
4.5.2006 4:53pm
William Spieler (mail) (www):
A caution counts as a criminal record

Does this mean that they're subject to an adjudication without judicial oversight?
4.5.2006 8:41pm
hey (mail):
Like most low visibility issues, and thus of low priority to Tony Blair, the Labour government has been acting like the Old Labour Trots. If the Conservatives ever get back in there will be a serious amount of clean up work, a significant part of which they will refrain from doing due to concerns about popular support (see MacMillan and other Post-War Conservative governments). UK is trending downward at a rapid rate, exacerbated by rulings of the EU Courts of Justice that apply an EU human rights code to decisions and government actions.

US is moving in a much more enlightened and safe direction, with the spread of "Shall Issue" and the removal of "Duty to Retreat". The divergent crime statistics over the next 10 years will be self evident to all but the left, who will continue to blame society and assure all of us that the EU is really enlightened and that Amerikkka needs to mirror their policies, irrespective of what the actual facts are, because the policies FEEL BETTER.
4.6.2006 1:03am
M. Simon (mail) (www):
America has one of the highest incarceration rates of any country in the world. It runs about .6 to .75%. Edging up to 1%.

No other country could afford to build prisons and staff them at the rate we do.

And what has caused the prison boom? Increasinly harsh drug prohibition laws. Are the laws solving the problem?

We can see what it has done to demographics in the black community. The break up of the black family is mostly about the imprisoning of the black male 18 to 35. It also explains "girls gone wild". When it is harder to get a man the competition gets fiercer.
4.6.2006 2:59am
Milhouse (www):
Actually it sounds like a reversion to the historic British law, under which first time offenders could get off by claiming to be clergymen, and "proving" it by pretending to read a verse from the Bible that they'd memorised. (They were marked so they'd be known as repeat offenders the next time they were caught.)
4.6.2006 3:04am
Public_Defender (mail):

And what has caused the prison boom? Increasinly harsh drug prohibition laws . . . .

In California, the prison guard union is a major force in pushing for higher sentences. No one can seriously argue that they are doing it to promote public safety.

The trick is to do serious research to determine what factors indicate a likelihood of repeat offenses, and what factors indicate a likelihood to restart (or start) a productive life. Then, the trick is to fashion laws that address those factors and make judges enforce them.
4.6.2006 9:13am
SenatorX (mail):
I think you both are right. It's both the incentives of the industry (prisons) and the war on drugs. Minimum sentences for soft drug offenders for example is a big problem. "Drugs are Bad" needs to be axed in favor of real research and a more sophisticated social program with an understanding of the affects of prohibitions too. Meth is about to explode on the east coast and nobody seems to be paying attention.
4.6.2006 10:31am
msk (mail):
At least it's national news in Great Britain, so their public can react to official policy statements.

Supporters of this policy must envision prosperous, middle class targets who can "afford" to suffer a burglary or two a year, and shouldn't complain that their peace of mind was murdered.

Are they planning to create legal relief for the repeat victim? If we picture the little old lady who lives down the lane suffering the efforts of twenty first-offenders in the space of three years, should the cops just explain the new rules and tell her to get the window glass, or the door lock, or whatever was damaged repaired one more time because this is not serious?

Didn't the burglary victim always have the option of refusing to press charges (or of being persuaded by the cops or prosecutors) if it was only a child stealing a loaf of bread or "borrowing" a bicycle?

And what does it do to the insurance industry if nobody's family antique (or computerized) anything is worth an investigation because it's presumed to have been taken by a first-offender? Next they'll be advertising in the paper: "Young men with clean records; short term employment, flexible hours; tour the country visiting lovely neighborhoods. Standard burglary tools an asset."
4.6.2006 1:19pm
TomCS (mail):
More evidence here of the need for both parts of the common law tradition to keep aware of developments. The current New Labour government has been hyper-active in the administration of the (lower-end) of criminal law. There are several clear strands, all broadly designed to press down on "anti-social behaviour" - inspired by NY zero-tolerance, but using different tools - speed up the operation of the court system, largely by expanding "spot fines" beyond traffic and littering, and encouraging cautions rather than contested court hearings, and various other tweaks designed to increase conviction rates in traditionally difficult areas like rape. This is all still controversial, and doubtless UK criminologists will be assessing it in the relevant journals as evidence builds up.

Within these trends is a clear move to summary justice, and non-custodial punishment, including community work and "restorative" penalties. There is however considerable bite below the surface. Although the ASBO "Anti-Social Behaviour Order" is effectively a "civil" sanction, if broken it leads to criminal sanctions. And as noted above, the caution referred to amounts to a guilty plea to a criminal charge, and is recorded as such, even if it leads to lesser punishment than if the defendant had pled not guilty in court in an open and shut case.

This is not I think fully realised over here yet, but there was a recent case of a school-teacher who had accepted a caution under a charge of accessing under-age on-line pornography, and was then surprised to find that his clearance to work with children had been withdrawn and that he had as a result lost his career. (I am not sure if this case has completed its legal course.) Equally, it should result in refusal of travel access to the US, since US visa forms ask if there have been any criminal convictions.

As I said this is still controversial, and may well be reviewed and revised under a future Conservative Government. But the Tories are not legal liberals, and traditionally have been hard on crime - indeed one of the perceptions that had kept the Labour party from getting elected was that of being softer, and the current government has worked hard to prove just how hard they are.

Meanwhile, in terms of transatlantic transparency, forget about defensive firearms: this is simply not an issue in the UK. And we have a comfortingly low level of fear of police venality, compared with the US, and little concern about the process of immediate fines for low-level law-breaking. Another significant difference is that we do not allow plea bargaining, which is an alternative way of clearing the court calendar. The defence lawyers may have more concerns, but criminal defence work at the low local level is not generally financially attractive, legal aid is increasingly difficult to get, and locally lawyers are not on the route to political or judicial elected appointments, so are not generally part of any news stories that emerge, and no incentive to go pro bono in return for publicity.
4.6.2006 1:45pm
davod (mail):

The comments quoted are interesting. However, without knowing who the people are, it is a little hard to equate misleading statements to the government.
4.6.2006 5:06pm
Clayton E. Cramer (mail) (www):


The comments quoted are interesting. However, without knowing who the people are, it is a little hard to equate misleading statements to the government.
"The P.M." was the prime minister, Lloyd George. The rest of the names are Home Secretary and a stack of other Cabinet ministers.

Read the whole paper (when you can see by clicking here)--there's lots more details that demonstrate that the bill was intentionally misrepresented as to purpose.
4.6.2006 7:04pm