Friday, 9 July 2010

No Wonder Our Justice System Is Up The Swannee…

…at least, if Rupert Myers is a typical barrister:
Our society has moved towards, or some might say reverted to, a legislative approach that punishes those who commit crimes not solely on the basis of their actions, but on the reasoning behind those actions and the identity of the victim.
Which is why it’s now the laughing stock of the free world, instead of the shining beacon of justice we used to believe in…
If I steal a bicycle from my friend, and admit in court that I do so because his name is Tim, and I am proud of vehemently disliking people called Tim, perhaps I'm a member of an anti-Tim society, should I be punished more seriously than if I had simply stolen his bike because I wanted his bike? You may think that would be nonsensical.
Well, yes. Because it is.

Either way, the effect is the same; his bike’s gone.
In April 2005, section 146 of the Criminal Justice Act 2003 was implemented. This section of the act doesn't create new offences, but imposes a duty upon courts to increase the sentence for any offence aggravated by hostility based on the victim's sexual orientation or disability.
Thus creating a ‘special class’ of privileged victims.
The court, in deciding on the sentence to be imposed, must treat evidence of hostility based on disability, orientation, or presumed orientation as something that makes the offence more serious.
Which is a nonsense, and is rightly condemned by sensible people:
The writer Gerald Warner, in an article for the Telegraph, calls for the repeal of "hate" laws, describing their "grossly distorted sentencing system which has created two-tier justice" citing section 82 of the Crime and Disorder Act 1998, which lead to guidelines of significant increases for the sentence where a racial motive was involved.
He’s right to do so. But Rupert disagrees.
In theory all are equal, and should be treated equally, but as the supreme court justice Oliver Wendall Holmes Jr so clearly reminded us, law must be written taking into account the "bad man".
Remember when we used to aim for equality? When it was the prize, the gold ring just out of our grasp?
Take the news story of an unnamed gay couple assaulted in Northern Ireland recently.

Following the incident, one of the men said to a reporter: "I'm too scared to leave my own house. I'm too terrified to answer my own door. I'm terrified to walk down the street. My partner is working today and I had to walk him to work because he is terrified and he is usually a very strong, confident man … People don't realise the repercussions of hate crime. It debilitates you. It wrecks you. It wrecks lives."
I hear similar stories from elderly victims of muggings, from families whose homes are burgled or vandalised.

Why, then, are they considered ‘lesser’ offences?
The reason my theoretical anti-Tim society isn't the subject of legislation is that it is not a real problem.
And there we have it. It isn’t a ‘real’ problem to Rupert because it doesn’t affect an approved identity group. The hurt and distress is just the same, the damage just as real.
The reason that hate crime legislation identifies attributes requiring special protection must be not because these particular facets of human identity are any more or less meaningful, interesting, valuable, or morally significant than plenty of others (for instance, class) but that these factors are currently ones which are subject to socially undesirable and harmful discrimination.
And if that changes over time? What if we start adding more and more identity groups to…


I see you’ve thought of that…
Should enough acts of violence and hatred be specifically levelled against people called Gerald, creating fear in the hearts of Geralds everywhere, perhaps the calls would be for the creation of laws, rather than their repeal.

This is the quality of our law professionals? Gradually piling more and more law on top of each other until the whole edifice comes crashing down?

No wonder we are in trouble…


Clarissa said...

It is, as Anna has been talking about recently, all about membership of the 'charmed circle' and a way of placing everyone into a box from which they can be controlled.

Personally I don't want to be in a box but there are plenty of people in my situation who do believe that some special consideration should be made because of it.

JuliaM said...

"Personally I don't want to be in a box but there are plenty of people in my situation who do believe that some special consideration should be made because of it."

It's always the loudmouth 'activists' who manage to spoil it for everyone else.

That seems to be a facet of just about every popular movement in the history of...well, everything.