Another step to the prison state

The Home Secretary's latest proposal will bring neither order nor justice, says Nick Cohen

MICHAEL Howard is irrepressible; no crisis can stop him. He was due to launch a White Paper proposing mandatory sentences for violent and sex offenders last week. In the inevitable way of modern politics, Jack Straw, his Labour shadow, was then due to raise mild doubts and proceed to show how the Opposition's alternative proposals were just as mean and just as likely to worry criminals. Alas, mad cows seized the agenda and forced the spectacle to be delayed.

But all the demented cattle in Europe cannot keep the Home Secretary off the air for long. Later this week, probably on Wednesday morning, he will issue the postponed White Paper and a ferocious non-debate with Mr Straw will stir the bleary-eyed listeners of the Today programme.

What neither Mr Howard nor Mr Straw will say is that the White Paper will be the third stage of an assault on the principles of British justice without precedent in modern history.

Citizens used to be innocent until proved guilty. Since the abolition of the ancient right to silence in 1994, defendants have had to account for themselves to detectives or face the consequences in court. The right to silence, a protection against torture in Stuart England and police beatings in the modern world, has survived civil war, industrial revolution, the struggles for democracy and two world wars. Mr Howard was too much for it.

Next to go will be the principle that cases should be decided on their merits, which was, if truth be told, never defended with vigour by complacent judges. The Matrix Churchill affair and the miscarriages of justice of the past two decades emphasised the importance of juries being given all the evidence. Yet a Bill going through Parliament allows the police and prosecution to hide evidence while forcing the defence to reveal its strategy in advance. This may seem a strange reaction to, say, the false imprisonments of the Guildford Four and Judith Ward - all of whom were finally released when the Court of Appeal discovered evidence to clear them hidden in police files. But we live in queer times.

This week Mr Howard will propose to stop judges sentencing on the merits of a case. The uniqueness of each crime will be ignored and Whitehall edict will determine how criminals are punished and how victims' pain is assuaged. Those who commit more than one serious crime of sex and violence will receive an automatic life sentence - a British version of the American idea of three strikes and you're out. As life rarely means life, the crude reality is that the Home Secretary will now decide how long a convicted criminal serves rather than a judge hearing argument in open court.

Labour's reaction has been to support in principle Mr Howard's restrictions on the disclosure of evidence and to refuse to commit itself to repealing mandatory sentences or restoring the right to silence.

The result of this consensus is a childish competition between the parties to determine which is hard enough to be cock of the walk.

On 29 February, for example, Labour's housing spokesman, Nick Raynsford, fought to get draconian punishments imposed on noisy neighbours. Noisy neighbours can indeed be an unbearable nuisance. But the inconvenient tradition in this country has been that you don't jail people until you have proof beyond reasonable doubt against them.

Such old-fashioned ideas hold no appeal for new Labour. Mr Raynsford proposed that anonymous accusations of noisiness should be enough to start a process that could end with a seven-year prison sentence. The police would merely have to state that they had "good evidence" against a suspect. The unnamed complainants would never have to face cross-examination.

It was not Labour's left wing who opposed the measure, but David Curry, the Tory housing minister. He was appalled by the assault on the presumption of innocence and wrote to liberal organisations such as Justice, the campaign for civil rights, begging them for reasons to oppose Labour. When the issue came up in a Commons committee, Mr Raynsford received grunts of approval from right-wing Tories while Mr Curry received muted support from Labour backbenchers. Is this what Tony Blair means by new politics?

The law-abiding, fed up with crime, may wonder why they should care if Britain takes a harsh line. The simple answer is that, with Mr Howard around, the most peaceful citizen can wake up to find that some new law has made him a criminal overnight.

But even victims of crime should be worried. The paradox of Mr Howard's approach is that it can make it more likely that the guilty will escape while removing protection for the innocent.

The evidence for this comes from America, whose dismal example now seems to inspire British social policy. The fashionable communitarian theorists Mr Blair and Mr Straw admire are imports from the United States; so, too, are the mandatory sentences of three strikes and you're out that Mr Howard wants to imitate.

Outsiders may wonder whether our politicians' love affair with America has gone too far. The United States runs a virtual Gulag of prisons in which 1.3 million people are incarcerated. Two per cent of the adult male population is in jail (compared to 0.3 per cent of British men). Three strikes and you're out will lead to a doubling of the already enormous US prison population. By 2005, one in 25 men will be behind bars.

And for what? The murder rate in the US is still 10 times higher than in Britain. Thousands of miles of prison walls have not built a safe society.

Yet apparently sober American commentators still argue that one reason why crime is such a menace in the US is that the legal system places too much emphasis on defendants' rights.

At first sight this argument seems bizarre. But there is something to be said for it, despite the bulging jails and death rows of the United States which suggest that the country is anything but soft. American-style mandatory sentences encourage the guilty to pretend they are innocent. If you are on your third strike and facing the "out" of a life sentence, there's no point in admitting guilt and sparing a rape victim the public ordeal of a court-room appearance. Repentance and contrition cannot affect your sentence. The only rational option is to hire good lawyers (it helps to have money), and hope they can blind the jury with technicalities and conflicting evidence.

The United States is set apart from the rest of the democratic world by its high levels of poverty, insecurity and brutality. But at least it has a written constitution and bill of rights which offer limited protection to the citizen. We do not and the Government has no intention of giving us one. The Conservative project of the last 18 years may end up being judged as an attempt to turn Britain into an America without the accompanying rights.