What price equality?

One of the unfortunate consequences of law and order becoming a political football is that any discussion of what is involved tends to start from ideological rather than philosophical premises. Further, without any fundamental statement about equality in Scottish constitutional law, it is difficult to know where to start. Perhaps we could cross the Atlantic: and go back to 1776:

“These truths we hold to be self-evident, that all men are created equal” (Thomas Jefferson’s original draft called the truths “sacred and undeniable” and had it that “all men are created equal and independent, that from that equal creation they derive rights inherent and inalienable…”)

Since then, of course, we have had George Orwell’s observation in Animal Farm that all animals are equal, but some are more equal that others; long before that Francis Bacon had written “One of the Seven was wont to say, ‘ that laws were like cobwebs; where small flies were caught and the great breakthrough.” This was versified by the Cavalier poet Sir John Denham:

What all of this means is that there has always been a concern that even if you could achieve equality of opportunity, there was no reason to think that this would lead to equality of outcome. We have also had the European Convention, with its repeated use of “Everyone” and No one” as appropriate.  In fact, equality and the law often sit uneasily together. How this affects the public perception of the courts is difficult to say. If asked, most people would probably say that people should be treated fairly, rather than equally, although the latter might, obviously, come into the former. Let us consider some examples, starting with crime.

So far as prosecution itself is concerned, on one view we have the unfettered power of the state set against whatever resources the defence can manage within the constraints of legal aid. This (apparently) sloping pitch may however be tilted back to level by the fact that the prosecution has the burden of proving guilt beyond reasonable doubt, so you could say that equality, roughly speaking, is achieved here, particularly in jurisdictions which insist on full pre-trial disclosure by the prosecution.

People likely to suffer custodial consequences are treated, procedurally, in broadly the same way.  Of the exceptions now being addressed, the quasi-criminal powers of prison governors are under scrutiny and questions must, I think, be asked of courts martial. The idea of being tried by a jury of one’s peers is either charmingly anachronistic or a fix, but either way was a result of privilege rather than equality.

Evidence

Turning to evidence, judges routinely tell juries that no witness has a badge of credibility and the testimony of all must be subject to the same degree of scrutiny.   Further, the presumption of innocence (in respect of the crime charged) becomes, through the suppression of information about previous convictions, a presumption that the accused has never committed any other crime either.  At this point comes the realisation that equality may actually lead to unfairness: why should those charged with deciding between competing testimonies be led to believe that both witnesses have lead lives of equal probity? Plenty of jurisdictions recognise this and do not approach the revealing of previous convictions with the sort of horrified demand that the trial be stopped, that you get here.

Penalties

Turning to penalties, there are a number of areas in which ostensibly equal treatment may lead to unequal results. First, there is imprisonment itself. This is likely to have more adverse consequences for someone in employment (loss of job and possibly career, leading to failure to pay mortgage, loss of home and dispersal of family) than someone who is unemployed.  Accordingly it does seem to be a more severe punishment. But if this means that the unemployed are more likely to be imprisoned, then there is inequality of a different sort, even if you expressed it by saying that the waged are less likely to go to custody.   There is also the vexed question of the imprisonment of women, thought to be subject to the constraint that as primary carers, they should if possible not be separated from their children for the latters’ sakes.   So equality may be ostensible in approach rather than actual in outcome.   Actually the essence of this dilemma may truly lie in the fact that short-term prison sentences are always more harmful than constructive, and the question of unfairness, as opposed to inequality, is one of degree.

There is also the question of day fines, which every so often are proposed.   The idea here is that if one person earns £150 per week, the suffering imposed by a fine of £150 is proportionally greater than that sustained by someone who earns £1500 per week, whereas a day fine would mean that each of them spent a day effectively working for nothing. The objection to this approach is that it would lead in some cases to extraordinarily high penalties for trivial offences, for example several hundreds pounds for overstaying on a parking meter.   The preferred solution has always been for the sentencer to take into account the income of the accused, while recognising the inescapable fact that wealthy people will always be able to afford things more easily than poor people. The exception to this rule seems to be football players, some of whom, one reads, are regularly fined a week’s wages by managers not troubled by the niceties of criminal jurisprudence (or perhaps more realistic about them.)

The alternative of fixed fines has been accepted rather more readily than one might have anticipated. In so far as these are not related to income, they do result in equality, but as they are usually for fairly minor offences this may fall to be treated on a de minims basis. The totting - up procedure, however, is a different matter.   This is the provision that once one reaches a level of twelve penalty points there will be an automatic six-month ban from driving. There is an escape clause but an examination of the decisions of the Court of Appeal shows that the concept of exceptional hardship is construed pretty strictly and there are few exceptions. At times indeed it looks as though exceptional has to have overtones of unforeseen, the answer otherwise being, effectively, “Well if he knew that he had so much to lose he should have been all that much more careful”…Such disqualification probably produces results that are as unequal, in terms of effect, as anything the court does, Parliament having tied the sentencers’ hands.  An able-bodied non-car owning person will, axiomatically suffer far less than someone whose livelihood depends on having a licence, and indeed it is common for the consequences of disqualification to reach as far as either dependants or employees of the offender. The trouble with doing away with the totting-up procedure, however, is that it might result, nationally, in geographical inequalities, with courts in different places adopting different attitudes.  The mention of geography, too, reminds one that the consequences of disqualification will be different in effect as between a dweller in a city with a satisfactory public transport system and someone who lives in a countryside devoid of trains and depending on an exiguous bus service.

Compensation orders, which have never taken off to the extent once forecast, also present equality problems. The principal objection is that, as matters stand, the question is approached in a fairly broad-axe way. Orders may over-compensate if the victim’s loss is exaggerated or worse, may give the impression that by paying a price for it afterwards, the criminal is seen, effectively, to have bought the right to do what he did, albeit from an unwilling seller.   Such problems always arise when the court tries to do more than compensate for straightforward verifiable loss. While it is not impossible to combine relatively simple criminal and civil cases (the French for example do it, but, critically, they are not working in the context of an adversarial trial), we will really have to think again about the nuts and bolts if we are going to be able to treat offenders and victims equally as regards compensation in anything more complex than the cost of a broken window.

Community Service Order

Community Service Orders also present certain problems about equality of outcome or effect.   When they were first introduced there was some debate as to whether it would be appropriate to employ any particular skills that an offender might have. The objection was that if, say, you were good at teaching swimming, then that would probably be something that you enjoy and what was the point of sentencing you to something that you did not find unpleasant? Fortunately good sense prevailed and in so far as unpaid work is supposed to benefit the community, it was thought as well to harness the skills and abilities of those who had them. At one stage it looked as though, in a late flourish of right-wing populism, things would be ordered so that all community service would be done by people in boiler suits with “Guilty” stamped on their forehead sweeping up leaves in the pouring rain, chained together and singing mournful songs. But events in the shape of an election intervened.  The criticism, however, is ungainsayable, that people who have a talent that can be employed may find the whole thing less arduous than those who do not.  One must not overstate the case; anecdotally it seems that people with even reasonably modest skills can derive satisfaction from doing community service properly. In so far as it is a sensible maxim that success, rather than failure, should be re-enforced, more steps should be taken now to strengthen this sentencing option before it becomes seriously incredible.

Finally there is the question of deterrent sentences.   Here we have one person being given a bit more than they might otherwise get in order to “send a message” to others who may be similarly inclined. It will be recollected that in “Candide”, Voltaire spoke of the English killing an admiral from time to time “ pour encourager les autres”. Longer sentences to discourage the others may pass the test of the strict act utilitarian (which I suspect most of us think we are), but would fall foul of Immanuel Kant’s otherwise respected advice that one should act on a maxim only if one would be willing that it should become a universal law.  (Incidentally, while checking this in the dictionary of quotations, I was interested
to see that the next entry is one Alphonse Karr: ”If we are to abolish the death penalty, I should like to see the first step taken by our friends
the murderers.”)

Civil Cases

So far as civil matters go, the first area of inequality is in access to the courts themselves.   In spite of legal aid you are clearly better placed if you have a lot of money at your disposal. This is one of the reasons that people are reluctant
to sue newspapers. The other, of course, is the fear of provoking a dangerous enemy. For such reasons, it may be that we would do well, in personal privacy cases, as well as cases involving inaccurate reporting of facts or of unfair comment, to look to some of the continental jurisdictions to see how matters can be better addressed. In Sweden, for example, where the press is constitutionally very free, any action, practically speaking, has to be taken by or by way of an ombudsman figure.  How equality could be achieved of course depends, in this difficult area, on how we judge between the requirements of a free press, whistleblowers and all, and the need for personal privacy or commercial protection.   That the problem is a real one will be apparent to anyone who remembers the way in which wealthy litigants like Robert Maxwell were able to use the courts to preserve their dirty big secrets.

 Anyone faced with a richer opponent is always at a potential disadvantage in litigation.  Further, as in backgammon, by going to appeal a party who has lost at the first stage may raise the stakes in such a way as to deter the opponent from backing his judgment and going on because the costs of failure become all the greater. Equality of access to civil justice has always been a problem: no doubt if there were an easy answer it would have been found by now. The best that we can say is that we are still trying.

Finally, in this incomplete look around the estate, there is the question of the party litigant. Traditionally, this person has been thought to be at a disadvantage, but I am not so sure. Armed with an unparalleled knowledge of the facts of his case, spurred on by righteous indignation and equipped with a trunkful of authorities, some of which are unreported and involve  his own earlier litigations, he or she can be a formidable opponent, particularly if afforded by the court a degree of latitude as regards the procedural niceties not available to the professional pleader.   What price equality then?