Police cannot be trusted with fines, magistrates warn – Telegraph

Via Police cannot be trusted with fines, magistrates warn – Telegraph:

Police cannot be trusted to hand out summary justice and will act as “judge and jury” if given powers to issue more on-the-spot fines, magistrates have warned.

In an extraordinary attack, the Magistrates’ Association said it is a “certainty” that officers will misuse powers because they cannot be “relied on” to handle them appropriately.

The comments have been made as part of the Magistrates’ Association response to the Government’s plans to allow police to issue £60 fixed penalties for careless driving.

Police have been accused of increasingly dealing with offences using on-the-spot fines as an easy way to hit the government’s crime targets.

Magistrates are worried that the number of offences now dealt with in this way is keeping some serious offenders out of the courts.

However, police leaders insisted that the use of the fines, which has risen sharply under Labour, helped to reduce paperwork and free up officers’ time.

It is a pity this story has been positioned as an attack on the police and a great pity if it is intended to be one. There is a legal and political principle at stake, a principle which was overturned when summary justice was first reintroduced in England and a principle which is hampered by an excessive reliance on a particular clause of Magna Carta:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

This principle is that the Rule of Law requires due process. As Hayek put it in The Constitution of Liberty (p191, emphasis mine):

We have now concluded the enumeration of the essential factors which together make up the rule of law, without considering those procedural safeguards such as habeas corpus, trial by jury, and so on, which, in the Anglo-Saxon countries, appear to most people as the foundation of their liberties. English and American readers will probably feel that I have put the cart before the horse and concentrated on minor features while leaving out what is fundamental. This has been quite deliberate.

I do not wish in any way to disparage the importance of these procedural safeguards. Their value for the preservation of liberty can hardly be overstated. … Judicial forms are intended to insure that decisions will be made according to rules and not according to the relative desirability of particular ends or values. All the rules of judicial procedure, all the principles intended to protect the individual and to secure impartiality of justice, presuppose that every dispute between individuals or between individuals and the state can be decided by the application of general law. They are designed to make the law prevail, but they are powerless to protect justice where the law deliberately leaves the decision to the discretion of authority. It is only where the law decides – and this means only where independent courts have the last word – that the procedural safeguards are safeguards of liberty.

And so we come to the heart of the matter: Labour governments — and the left generally — do not share with Hayek, with liberals and with Conservatives an understanding of the Rule of Law. Witness for example Labour’s class law which was celebrated by one cabinet minister as “socialism in one clause” ((“Every public body will have to take class background into account when making decisions under radical new legislation unveiled by the Government today.”)). If I put my childhood in its context, it is clear that I would have benefitted from advantageous access to public services, coming from a working-class background. However, since I achieved social mobility, my children would now suffer for it. The absurdity of such a situation should be plain: socially-mobile individuals would disadvantage their children. The rational choice would be to make no attempt to advance oneself.

It would be too easy to rant and rave at the absence of procedural safeguards, particularly when justice in our country has been reduced to summary fines from council officials in this case for crumbs falling from a baby’s mouth ((Thankfully, this fine was overturned in court, but what a farce. If you think it isolated, look at this map of English liberty or read Raab’s The Assault on Liberty.)), but there is a more fundamental problem: a battle of ideas which is barely understood — the battle over ideas such as liberty, justice and equality.

Those of us who believe a good society is built on responsibility face two groups of opponents, neither of which appreciate the secondary effects of their actions:

• Those well-intentioned but ill-informed people who would punish wrongdoing too expediently.
• Those well-intentioned but uncomprehending people who trust authority to solve society’s problems.

Certainly, people should not drive carelessly. Certainly, they should not litter. But the issue is not that the police cannot be trusted to issue summary fines, but that summary fines rely on an understanding of the Rule of Law, liberty and justice which can only serve to undo what social progress we have made.

There has been a cultural revolution which has produced an expectation that the state should use expedient coercion to extract good behaviour from a resentful and sullen population. We need a better way and it is well-known: opportunity, responsibility and security from others — a return to classic English liberty.