On the other hand there are countries where the law is changed in order to prosecute the ordinary activities of those whom the government chooses to classify as criminals because it is politically convenient to do so. Should there be no evidence on which a jury will convict, the law can be changed till the public enemy is punished, you can punish them anyway even if they are acquitted, or you can always keep juries, burden of proof and testing of evidence out of it altogether in selected cases.
The traditional test in designing the criminal law in western legal systems – common law or civil law – was to ask, “What mischief does the law address?” or “What harm to persons, property, or society as a whole, does it seek to prevent or punish?” Libertarians might be troubled by the unlimited scope of “society as a whole”, but universalism – the treatment of all persons the same in the same circumstances, and framing the law on general principle rather than special cases – was once deemed fundamental to the rule of law. Indeed there is a common law maxim: hard cases make bad law, that warns that attempts to extract jurisprudence from the merits of the parties involved result in dangerous incoherence and uncertainty (the career of the late Lord Denning is replete with example) .
What should we call a jurisdiction where criminal liability is determined principally by the identity of ‘the criminal’ which is to say, whoever it is the authorities determine should be punished? Not lawless, because all these things are done under the colours of law, most legalistically. I think Tony Blair would call it ‘modern’. I think I would call it a ‘pyramid of bullies’.
Don’t forget Tony’s pal, Berlusconi.
They will keep persecuting this guy even if they have to pass a law to make it a criminal offence to be named Griffin and Nick at the same time. And the juries will keep acquitting him, as ordinary folk always do when they smell a judicial rat.
When Griffin’s comments were given a more public airing they were widely condemned and led to his being cut off by his bank. This was an appropriate reaction from free agents in a free society.
Putting him on trial only served to make him a martyr and resulted in perverse headlines that he was ‘cleared of race hate.’ I don’t really belief that the guy is free of racial hatred.
I don’t believe he is free of racial hatred either. But equally racial hatred is not a crime. It is a measure of how far down the slippery slope to deserving and undeserving defendants we have gone, that both politicians and journalists think it is.
Incidentally, I don’t think it is proper for a bank to refuse people service on the grounds of their opinions or notoriety any more than it is a lawyer.
Surely the bank is free to choose to serve whoever they choose, for whatever reason they chose, aren’t they? I went into a book/coffeeshop a while ago with a friend. Me wearing my scabby urban style combats covered in red paint stains (I used to be an art student) which bear more than a passing resemblance to dried blood and a a Marrylin Manson t-shirt (the slogan of which was “There’s no time to discriminate, hate every mo-fo that gets in your way”) and him with a megadeth t-shirt on (all skulls and such). We were very politely asked to leave, as our attire was deemed inappropriate for a christian bookshop. We apologised and left (in our defence we had no idea that it was a christian bookshop.) They were however perfectly within their rights to refuse us service, as is Nick ‘The Bigot’ Griffin’s bank. I wouldn’t like to have my business associated with him either.
Maybe he could be persuaded to change his opinion if he is treated the way he would have those he hates treated. Apartheid for racists. Before I get shouted down; its nowhere near as draconian as real racial aparthied, because I’m assuming people like Nick ‘The Klansman’ Griffin actually choose to hold the opinions they do.
Hang on, I can see the hole I’m digging for myself here… consider the last paragraph retracted.
That BBC article features some truly amazing pearls of wisdom. First, Gordon Brown bases his argument for outlawing certain kinds of speech on the assumption that they “will offend mainstream opinion in this country.” Now, in this particular case he was admittedly referring to a group of people with more or less explicit neo-Nazi views that are indeed offensive to the mainstream opinion (and sensible people as well). However, am I the only one who finds it scary that a major politician argues that “offending mainstream opinion” should be considered as sufficient ground for outlawing particular statements?
Immediately below, Lord Falconer claims that it should be criminal to “insult an entire community” by saying that a particular religion is “wicked and evil.” So does that mean that the law should prohibit websites like, say, the Secular Web, which are full of unambiguous statements about the fundamental evilness of Christianity? Or various websites that are fiercely anti-Scientology, anti-Jehovah’s Witnesses, anti-Sai Baba… you name it? After all, all these websites portray whole religions as “wicked and evil” and are without any doubt grossly insulting to the entire communities of their respective believers.
Talk about hypocrisy.
mandrill,
Yes and no.
I think the bank ought to be free to refuse the BNP as a customer, just as they ought to be free to refuse black people (say) as customers. But I do not think it is proper for them to do either. It is highly undesirable to have a society where businesses providing private professional services decide whether to take on clients other than on professional grounds germane to the relationship. Otherwise we shall end up in a position where businesses are either by themseleves or by the grandstanding of politicians forced into a position of not dealing with people who “offend mainstream opinion”. Much of Jim Crow segregation was, as Dale’s article indicates maintained not by law but by white business-owners worrying about what others would think of them, or privately maintained covenants.
One way to mitigate the problem is by maintaining privacy and confidentiality much more strongly, so that professional relationships are sheilded from bullying exposure. Another is to have a professional ethic, such as the cab-rank rule for barristers. But neither is a complete answer if you have an partial, intolerant, political culture where humanist universalism principals is under threat. Indeed such rules are likely to be threatened directly, as protecting Bad People.