Political commentary

The Jenkins legacy

Ferdinand Mount

I was on a jury once (there's no bore like a jury bore). It was in South London, petty crime only. The first case was about a black man caught by three policemen coming out of a vacant flat which didn't belong to him, dragging a fridge not his own. After two hours, we still could not agree to find him guilty of stealing the fridge.

One: of us twelve, a cheerful gingerhaired lad, said he could never find anyone guilty because all coppers were bent; another man in his early twenties, who said he had had a bit of unspecified trouble in the High Court, said he wouldn't go as far as that, but you had to watch them. An Austrian lady said that we had to think very carefully before condemning a poor young boy to spend the best years of his life behind bars.

The judge said we could bring in a majority verdict if no more than two of us dissented. Alas, we were still 9-3 until the Austrian lady said, all right, but she didn't like doing it and she would remember for the rest of her life how she etc. The defendant turned out to have several previous convictions for similar minor offences. He was given six months, suspended.

The pool of jurors who assembled each morning, a couple of hundred strong, to be allocated to fresh cases seemed heavily weighted towards the old and the young. Women and blacks were represented in due proportion. Above all, the jurors were predominantly poor, badly dressed and working-class. At most, there were a couple of middle-class, middle-aged burghers per jury.

No longer twelve good men and true, but twelve representative persons. This great change dates from the Morris Report, implemented by the Tory government in 1972, which abolished the property qualification for serving and enlarged the excuses for not serving (available mostly to the middle classes).

The other great change was the introduction by Roy Jenkins, five years earlier, of majority verdicts, intended to ensure that a couple of dtibious characters could not prevent a jury from returning a guilty verdict in an open-and-shut case. As far as it goes, that does seem to work.

But the abolition of the property qualifications presented a far greater problem.

It was a necessary and logical reform. Political democracy entails 'jury democracy'. It is the jury system which maintains the popular credit of British justice.

But the inescapable consequence of these reforms is that juries have become more sympathetic to defendants and more sceptical of the police evidence. I don't mean that on the whole they are less fair or careful; I suspect probably the opposite, with the amiable exceptions indicated above. But they do tend to demand from the prosecution an increasingly high standard of proof.

Quite right too. What seems to be shirked is the question of how the prosecution is to provide it. One route is embarrassingly obvious: artificial improvement of the evidence, the planted brick — and the cashiered copper. The other method, less often clearly considered, would be to concentrate on prosecuting for offences which are easier to prove — and, if they don't exist, to create new offences which can be simply proved or disproved.

There seems to be emerging a whole category of offences which a modern jury considers too vague to convict on: for example, conspiracy to do almost anything, and now riotous assembly.

Has the fiasco of the prosecutions for riotous assembly after the riots in St Paul's, Bristol, impelled the authorities to consider how in the smoke, chaos and panic of a riot the police are to gather unshakeable evidence against the persons they have managed to collar? Well, after Brixton, I suspect it has.

One suggestion, made by Judge G.F. Leslie in a letter to The Times, is to revive the Riot Act of 1714. Within a given time of proclamation of riot, anyone who failed to leave the scene would thereby be guilty of an offence. Instead of 'reading the riot act', these days the police would give the signal with their sirens. Nab your man on the spot, and you should have no difficulty in convicting him.

Neat, fair, and relatively painless. Why didn't anybody think of it at the time when the Riot Act was being repealed in 1967? The story is worth recalling. Among the first fruits of the Law Commission, set up in 1965, was the Criminal Law Bill— part of the modernising image of the Wilson administration as a whole and of the Home Secretary, Mr Roy Jenkins, in particular. It repealed at a stroke a whole bundle of 'obsolete', nay, 'mediaeval' statutes — champerty (but not embracery), the exemption of earls and barons from amercernent by their peers, the Sale Of Horses Act, 1555, the right to wear armour except during a tournament, and so on. What heavy-footed fun was had by all concerned.

In the Bill's swift passage through the Commons, the Riot Act was scarcely even mentioned — all the emphasis was on the abolition of the distinction between felonies and misdemeanours.

The truth is that, with these huge rag-bag Bills, nobody has the time to stop and consider attentively any individual piece. In the same way,fewMPs bothered to consider what would be the effect of this same Criminal Law Act on the old Irish problem: what happens when a constituency elects a Sinn Fein man who is in prison? Before 1967, he could be unseated in the courts as a felon by an election petition. Now he is a duly elected MP and could be s removed from the House of Commons only by his fellow MPs expelling him, a far more contentious course and one sensibly declined in the case of Bobby Sands. Was this upshot entirely intended?

The existing rules for dealing with hunger strikers were laid down in July 1974 by Mr Jenkins — again — in 'his second spell as Home Secretary. The rules provide that, as long as a prisoner is in his right mind and his judgment is unimpaired, it shall not be part of the duty of a prison medical officer to feed the prisoner forcibly.

This change of policy was intended to deter hunger strikers from going to the limit. It was also made in response to the revulsion of prison doctors from carrying out this nasty task — which is itself not without medical dangers.

And yet. Prison officers take away the prisoner's belt to stop him hanging himself. They take away his razor to stop him cutting his throat. These measures of protection are not only a recognition of a duty under common law to protect the life of those under your care — a duty which applies to prison doctors as much as to prison governors; they are a recognition of the peculiar melancholy which imprisonment can induce and may be thought liable to unhinge the mind in the direction of suicide. To claim that a political hunger striker can free his spirit from such an atmosphere is unintentionally to concede him a tacit 'political status.'

I do not dismiss the counter-arguments that a prisoner should not be deprived of his human dignity and that dignity includes the right to dispose of his own life as he thinks fit. But at best, the arguments for and against forcible feeding are closely balanced, and the reason for Mr Jenkins's 1974 decision therefore inevitably contained a substantial tactical element; not to feed forcibly was not only morally defensible, it was politically preferable, because it would weaken the tactical value of the hunger strike to the IRA. Has it? In listing these stray consequences .of some of the legal reforms of the late Sixties and early Seventies, I do not wish to suggest that they were all mistaken, nor that their prime author, Roy Jenkins, is less reflective than the next politician. But more and more it does seem that those were the years of not stopping to think, of tossing anything that sounded vaguely mediaeval on the scrapheap of history. In the 1980s, by contrast, history seems to have cast us as her totters rummaging through the scrapheap and wondering at the things people so carelessly throw, away.