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PART
IX
The late Richard
Hofstadter, one of America's greatest historians and a
critic of America's gun culture, condemned the "pathetic
stubbornness" of Americans who cling to the notion that
the right to bear arms protects liberty. Hofstadter ably
expresses the position that the protections of the Bill
of Rights are easily severable. One may discard certain
sticks from the bundle of rights, without impairing the
remaining rights. For example, from 1960 to 1970, Second
Amendment rights declined as the first federal gun laws
applying to ordinary gun-owners purchasing rifles,
pistols, and shotguns were enacted, and many state or
local governments enacted additional laws. The Tenth
Amendment also suffered major blows as the federal
government began acting on subjects traditionally
reserved to the states. However, other civil liberties
became stronger. For example, free speech enjoyed its
strongest judicial protection ever; the Warren Court
applied most of the criminal procedure guarantees in the
Bill of Rights to state courts; and Congress, through
the Civil Rights Act of 1964 and other legislation,
began serious enforcement of the Fourteenth Amendment's
Equal Protection clause.
The contrary
view acknowledges that some rights may flourish, while
others wither, but maintains that in the long run, all civil
liberties are mutually protective. In an eighteenth century
context, for example, strong jury rights were seen as
important to protect free speech, so as to prevent the
government from bringing abusive prosecutions for seditious
libel.[184]
Likewise, strong property rights increase the number of
people who are financially independent, and thereby better
able to challenge the government in print or in court.
Strong limits on central government power, such as a
vigorous Tenth Amendment, protect Fourth Amendment values
such as freedom from unreasonable searches, by limiting the
sphere of federal police action.
Obviously
there is some intuitive plausibility both to the Hofstadter
"severability" view and to the "mutual protection" view. By
1999, however, one thing has become obvious. Great Britain
cannot be cited as a successful exemplar of the severability
theory. To the contrary, all civil liberties in Great
Britain have suffered a perilous decline from their previous
heights. The nation that once had the best civil liberties
record in Western Europe now has one of the worst. The
evisceration of the right to arms has not, of course, been
the primary cause of the decline, although, as this Essay
will discuss later, it has played a not inconsiderable role.
More generally, the decline of all British civil liberties
appears to stem from some of the same conditions that
have afflicted the British right to arms.
Journalist Duncan
Campbell writes: "Britain has never been free in the way
that most people--particularly foreigners--think. It has
been getting more constricted throughout the 1980s ...."
The 1980s were the same period when British gun control
began to move from strict control to prohibition.[185]
Some
Americans did notice that the British government banned the
book Spycatcher on national security grounds.
Upholding the ban, one Law Lord wrote that, in the United
States, "[t]he courts, by virtue of the First Amendment,
are, I understand, powerless to control the press.
Fortunately, the press in this country is, as yet, not above
the law ...."[186]
When Spycatcher was published in the United States,
the British courts finally voided the government's
censorship as nugatory. Campbell notes the irony that the
United States Constitution's First Amendment became "in this
matter at least, the sole legal protector of free speech and
a comparatively free press in Britain."[187]
Conversely, British law is being used to undermine American
free speech principles. A libel suit by former Greek Prime
Minister Andreas Papandreou against Time magazine was
brought not in Greece or in the United States, but in
England. Papandreou's lawyer explained that "the English law
of libel is much more favorable than the American law of
libel," and that Britain does not require libel plaintiffs
who are public figures to prove that the publication was
made with "actual malice."
Prior
restraint of speech in the United States is allowed only in
the most urgent of circumstances.[188]
In England, the government may apply for a prior restraint
of speech ex parte, asking a court to censor a newspaper
without the newspaper even having notice or the opportunity
to present an argument.[189]
The prohibition of such prior restraints was one of the
primary goals of the authors of the First Amendment. Thus,
one of Blackstone's fundamental rules of civil liberty--the
prohibition on prior restraints[190]--has
disappeared as Britain in the 1990s regresses to a standard
below that of the 1760s.
The final
years of an American presidency are routinely punctuated
with tattle-tale books written by disgruntled former
staffers. The books typically contain embarrassing
revelations about the President and his entourage, such as
the fact that President Reagan's schedule was sometimes
controlled by an astrologer consulted by Mrs. Reagan.[191]
In Britain, however, Queen Elizabeth II sought, and won,
from Britain's highest court an injunction forbidding the
publication of a book by a royal servant revealing that the
Queen had once tripped over a drunken page and ended up
beneath him.[192]
Free
speech in Great Britain is also constrained by the Official
Secrets Act, which outlaws the unauthorized receipt of
information from any government agency, and allows
government to forbid publication of any "secret" it pleases.[193]
Notably, the Official Secrets Act was enacted in 1911, a
year in which Britain was suffering from anti-foreign,
anti-gun national security hysteria.[194]
The Official Secrets Act was expanded in 1920 and again in
1988, both years when gun controls were expanded. While the
American government carries the burden of proving that a
document was appropriately classified as secret, the British
subject carries the burden of proving that a document should
not be secret.[195]
America's Freedom of Information Act makes United States
government files more open to public scrutiny than those of
any other government in the world. Sarah McCabe, a founder
of Oxford's Centre for Criminological Research, contrasts
"the foolish obsession [with secrecy]" of the British
government "with the openness, in superficial matters at
least, of the security services in the United States."[196]
A hundred other British laws also prohibit the disclosure of
information by civil servants.[197]
The laws create a chilling effect so that the press is
afraid to publish, even when a daring civil servant does
leak information.[198]
Former Prime Minister Edward Heath worries that the Official
Secrets Act of 1989 has made it impossible for government
scandals equivalent to the Iran-Contra affair to be exposed.[199]
In the
fall of 1988, at the same time that Prime Minister Thatcher
pushed through the new restrictions on guns, her government
enacted other laws restricting civil liberties. She forbade
television stations to broadcast in-person statements by
supporters of a legal political party, Sinn Fein.[200]
The ban even applied to rebroadcasts of archive films taped
many decades ago.[201]
A confidential British Broadcasting Corporation memo
announced the government's intention to keep journalists
from broadcasting any statement by United States
Senator Edward Kennedy supporting Sinn Fein.[202]
While the
First Amendment protects the rights of even repulsive
organizations like the American Nazi Party to speak and
demonstrate, it is illegal in Britain to so much as publicly
express racist views.[203]
The Obscene Publications Act and the Misuse of Drugs Act
have been used as justification for the police to seize
masterpieces such as William S. Burroughs' Junky,
Hunter Thompson's Fear and Loathing in Las Vegas, and
Tom Wolfe's The Electric Kool-Aid Acid Test.[204]
British courts have never recognized a right to assemble or
demonstrate.[205]
The
British press voluntarily submits to self-censorship
unimaginable in America. A joint press/government committee
sends "D-notices" to editors requesting self-censorship on
specified national security subjects. The press almost
always obeys.[206]
The BBC banned Paul McCartney's Give Ireland Back to the
Irish, and a song by another group urging the release
from prison of the Guilford Four.[207]
During the American-led war against Iraq, Julian Lennon's
anthem Give Peace a Chance, ubiquitous on the
American airwaves, was banned by the BBC. Two civil
libertarians gloomily summarize: "As our allies become more
open, Britain grows yet more secretive and censorious.
Perhaps the real British vice is passivity, a willingness to
tolerate constraints which others would find unbearable."[208]
It is interesting to contrast the bold assertiveness of the
American press, which appears determined to defend freedom
of the press under all circumstances, with the
submissiveness of their British cousins. The same contrast
of fierce independence versus submission likewise appears
when one contrasts American and British gun owners, as will
be discussed below.
National security
concerns do more than keep British citizens from
learning about their government. The Security Service
Act of 1989 provides: "No entry on or interference with
property shall be unlawful if it is authorized by a
warrant issued by the secretary of state." If committed
pursuant to an order from the secretary of state, acts
such as theft, damage to property, arson, procuring
information for blackmail, and leaving planted evidence
are not crimes.[209]
In the United States, no official of the Executive
Branch can authorize such actions. Only a court can
authorize a government breaking and entering, and only
if the government presents particular proof of
necessity.[210]
Security
continues to eat away at other traditional rights of British
subjects. In Northern Ireland the jury has been "suspended"
for political violence cases. Confessions are admitted
without corroboration. Confessions are extracted through
"the five techniques:" wall-standing, hooding, continuous
noise, deprivation of food, and deprivation of sleep.[211]
Convictions may be based solely on the testimony of
"supergrasses" (police informers).[212]
The
British justice system's response to Irish Republican Army
terrorism within Britain has been particularly disturbing.
In 1974, terrorists bombed pubs in Birmingham, killing
twenty-one people. Home Secretary Roy Jenkins, author of the
1967 shotgun controls, introduced the Prevention of
Terrorism (Temporary Provisions) Bill. Approved without
objection in Parliament, the Bill was supposed to expire in
one year, but has been renewed every year. Under the Bill,
the police may stop and search without a warrant any person
suspected of terrorism. They may arrest any person they
"reasonably suspect" supports an illegal organization, or
any person who has participated in terrorist activity. An
arrested person may be detained up to forty-eight hours and
then for five more days upon the authority of the Secretary
of State. Of the 6,246 people detained between 1974 and
1986, eight-seven percent were never charged with any
offense. Many detainees reported that they were intimidated
during detention and prevented from contacting their
families. The Bill also makes it illegal even to organize a
private or public meeting addressed by a member of a
proscribed organization, or to wear clothes indicating
support of such an organization.[213]
The Act
allows the Secretary of State to issue an "exclusion order"
barring a person from ever entering a particular part
of the United Kingdom, such as Northern Ireland or Wales.
Persons subject to this form of internal exile have no right
to know the evidence against them, to cross-examine or
confront their accusers, or even to have a formal public
hearing.[214]
The
European Court of Human Rights ruled the Prevention of
Terrorism Act to be in violation of Article Five, Section
Three of the European Convention on Human Rights, which
requires suspects to be "promptly" brought before a judge.[215]
Nevertheless, the British government refuses to abandon its
preventive detention policy, and evades the European Court's
ruling by invoking the Convention's Article 15 provision for
countries to ignore the Convention on Human Rights "in time
of war or other emergency threatening the life of the
nation."[216]
The
Birmingham bombings that led to the Prevention of Terrorism
Act resulted in the conviction of a group of defendants
called the "Birmingham Six." The defendants confessed while
being held incommunicado by the police. The various
confessions were so factually inconsistent that they could
not have been true.[217]
The forensic scientist whose testimony convicted the
Birmingham Six later admitted that he lied in court. Amnesty
International charged that the defendants' confessions were
extracted under torture. Civil libertarians fear that the
Birmingham case is only one of many instances of police
obtaining coerced confessions.[218]
Of course
United States police have sometimes framed people and
manufactured evidence. What is stunning about the Birmingham
Six case is the rationale used by Britain's highest judicial
body to deny the appeal:
If the six men
win, it will mean that the police were guilty of
perjury ... violence and threats, and the
confessions were involuntary and improperly admitted
and that the convictions were erroneous. The Home
Secretary would have to recommend that they be
pardoned or remit the case to the Court of Appeal.
This is such an appalling vista that any sensible
person in the land would say: It cannot be right
that these actions should go any further. They
should be struck out.[219]
In essence, the
court said that it would be better to imprison innocent
men for illegal convictions than for the British police
to be brought into disrepute. The British government
finally released the Birmingham Six after they had spent
more than sixteen years in prison.
Under
1998 legislation pushed through Parliament and signed into
law in only two days,[220]
in "terrorism" cases:
the oral
statement of a police officer above the rank of
superintendent that, in his opinion, the suspect is
a terrorist, is admissible as evidence of the matter
stated and the suspect can be arraigned. However,
the suspect cannot be convicted solely on the
basis of the police statement.[221]
a court or jury may draw inferences
from a suspect's failure to mention a fact which is
material to the offense and which he could reasonably be
expected to mention in response to police questioning,
provided the suspect has been permitted to consult an
attorney. But the suspect cannot be convicted solely
on the basis of the inferences.[222]
upon conviction of a terrorism
offense, money or other property in a suspect's
possession or under his control at the time of the
offense may, upon be forfeited if it has been used in
furtherance of or in connection with the crime or the
court believes it may be so used in the future.[223]
Former Tory
minister Alan Clark called the legislation "focus-group
fascism" resulting from "gesture politics."[224]
Lord Lloyd of Berwick, the Law Lord who advises the
government on emergency powers legislation was critical
of the legislation, although he did not oppose it. He
warned that "convictions based largely on the opinion of
a senior police officer would not stand up in appeals
courts or in Europe."[225]
It should
be no surprise, then, that the United Kingdom has been found
culpable of human rights violations under the European
Convention on Human Rights more often than any other member
of the Council of European States except Italy.[226]
In certain
situations, Britain's highest court is the final court
of appeal for Commonwealth countries. Unfortunately for
citizens of those Commonwealth nations, the court's
record on civil liberties issues is deplorable.[227]
In this capacity, the court has upheld a law
ordering newspaper publishers to obtain a government
license and to post bond with the government.[228]
The court held that a Jamaican death sentence for a
defendant who had not been represented by a lawyer was
permissible--even though the Jamaican Constitution
explicitly guarantees a right to counsel in all criminal
trials.[229]
The laxness of judicial review results in administrative
agencies suffering almost no legal constraints.[230]
The British courts, like other segments of British
society, seem considerably more passive than their
American counterparts.
The grand
jury, which, like civilian gun ownership was an ancient
common law institution, was abolished in 1933.[231]
Civil jury trials have been abolished for all cases except
libel, and criminal jury trials are rare. Today, over ninety
percent of all jury trials in the world take place in the
United States. Even when a British subject does receive a
jury trial, voir dire is far more restricted than in the
United States.[232]
While the
United States has the Miranda rules, Britain allows police
to interrogate suspects who have asked that interrogation
stop, and allows the police to keep defense lawyers away
from suspects under interrogation for limited periods.[233]
The American doctrine of the "fruit of the poisonous tree"
bars use of evidence derived from leads developed in a
coerced confession.[234]
Britain allows use of such evidence.[235]
Even the traditional right to silence has been abolished, as
1994 legislation now allows a defendant's silence to be used
as evidence against him.[236]
Further, defense trial lawyers (barristers) often serve as
prosecutors on other cases. The clubby, collegial
relationship between prosecution and defense counsel
discourages defense counsel from aggressive defense of
clients.[237]
Four out of five defendants pleading innocent do not even
meet their barrister until the first day of trial.[238]
It is not difficult for the police to obtain legal
authorization to search wherever they want since, for
example, wiretaps do not need judicial approval.[239]
In any case, formal legal constraints are irrelevant. A
study of police searches by London's Metropolitan Police
showed that a large percentage of stops and searches
were not supported by reasonable suspicion, and that the
police did not care whether their searches comported with
formal legal standards.[240]
One reason the police do not need to care about legality is
that Britain lacks an exclusionary rule to deter illegal
police acquisition of evidence.[241]
Indeed, it is unlawful in a British court to point out the
fact that a police wiretap was illegal.[242]
Upon
instructions of police administrators, officers in several
jurisdictions have begun compiling Japanese-style dossiers
on individuals in their locality. Reports contain
unsubstantiated gossip and non-criminal information, such as
the fact that a woman is three months pregnant and living
with her parents.[243]
The British police may arrest on "reasonable suspicion,"
rather than on "probable cause."[244]
They may arrest anyone who does not have a permanent
address. They may detain a suspect for twenty-four hours
without charges, another twelve hours upon authorization by
a police administrator, and up to ninety-six more hours upon
authorization by a magistrate. The police may prevent a
detainee from communicating with his family or lawyer for up
to forty-eight hours.[245]
If guns
had never been invented, many of the British
government's modern invasions of civil liberties would
still have taken place. Still, the advance of gun
controls has played an important role in creating laws
that do infringe upon other civil liberties, as well as
in providing precedents.
To enforce the gun control laws, the police have been given
broad search and seizure powers. Sections 46 through 50 of
the 1968 Firearms Act authorized the police to search
individuals and vehicles without warrants, to require the
handing-over of weapons for inspection, and to arrest
without a warrant, even in a home.[246]
The principle of warrantless searches for firearms was
expanded to include searches for "offensive weapons" by the
Police and Criminal Evidence Bill of 1984. Since "offensive
weapons" are never defined, the police have nearly unlimited
authority to search and seize. African combs, bunches of
keys, and tools have been considered offensive weapons. In
one case reported by the National Council of Civil
Liberties, a workman carrying tools to his car was asked,
"Would you use this tool to defend yourself if attacked?"
Had the workman given an affirmative answer, he would have
been subject to arrest for the felony of carrying an
offensive weapon.[247]
The principle of warrantless arrests is now a general
practice in British law, even for minor offenses or for
failure to provide satisfactory identification to the
police.[248]
When the Deer Act 1963 allowed warrantless arrests for
poachers, few supporters foresaw that warrantless arrests
for everyone, not just poachers, would become the norm in a
few decades.
Today the practice that police may inspect private homes
without a warrant is being established by the "safe storage"
provisions of the gun laws. In many jurisdictions the police
will not issue or renew a firearms or shotgun certificate
without an in-home visit to ensure that the police standards
for safe storage are being met. The police have no legal
authority to require such home inspections, yet when a
homeowner refuses the police entry, the certificate
application or renewal will be denied.[249]
The 1989 extension of the safe storage law to shotguns--a
reasonable concept in itself--has added several hundred
thousand more British homes to those to which the police
consider they have the authority to demand entry without a
warrant. Finally, the gun control laws have helped teach
that laws in practice are made by police administrators or
London bureaucrats, rather than being the exclusive creation
of Parliament.
- TURN TO PART X -
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H
[184] See Clay S. Conrad, Jury
Nullification: The Evolution of a Doctrine 32-34
(1998).
[185] Duncan Campbell, The Thatcher Government
vs. the British Press, Columbia
Journalism Rev., May/June 1989, at 33.
Campbell is associate editor of New Statesman and
Society magazine.
[186] Attorney-General v. Guardian Newspapers
Ltd., 3 All E.R. 316 (Lord Ackner 1987).
[187] Campbell, supra note
185, at 34.
[188] As the United States Supreme Court has stated,
"liberty of the press ... has meant, principally
although not exclusively, immunity from previous
restraints or censorship."
Near v. Minnesota, 283 U.S. 697, 716 (1931).
See also New York Times Co. v. United States, 403
U.S. 713 (1971).
[189] See Campbell, supra note
185, at 36.
[190] See 4 Blackstone
supra note
26 at *151. "The liberty of the press ...
consists in laying no previous restraints upon
publication ...." Id. (emphasis in original).
[191] See generally Donald
Regan,
For the Record: From Wall Street to Washington
(1988).
[192] See Passages, Maclean's,
Aug. 6, 1990, at 6.
[193] See Official Secrets Act 1911, 1 & 2
Geo. 5, ch. 2 (Eng.).
[194] The period was also marked by a mostly
unfounded German spy hysteria. See
K.D. Ewing & G.A. Gearty,
Freedom Under Thatcher: Civil Liberties in Modern
Britain 137 (1990).
[195] See Terence DeQuesne &
Edward Goodman,
Britain: An Unfree Country 24 (1986).
[196] See Civil Liberties in
Conflict 205 n.20 (Larry Gostin ed. 1988) (citing
Sarah McCabe, National Security and Freedom of
Information, at 185). See also A.W. Brian
Simpson, Detention Without Trial in the Second World
War: Comparing the British and American Experiences, 16 Fla.
St. U. L. Rev. 225, 228 (1988) (noting that
British government files are routinely closed for thirty
years, and sometimes closed for longer periods with no
public accountability.)
[197] See Paddy Hillyard &
Janie Percy-Smith,
The Coercive State 115 (1988).
[198] See id. at 118-19.
[199] See Ewing & Gearty,
supra note
194, at 205 (citing Parliamentary debates).
[200] See Campbell, supra note
185, at 35.
[201] For example, the ban applies to footage of
Eamon de Valera, former president and Taoiseach of the
Republic of Ireland, during the early 1920s when de
Valera was leading the Irish war of liberation against
Britain. See Ewing & Gearty,
supra note
194, at 246.
[202] Labour Member of Parliament Ken Livingstone
denounced the plan to "prevent access to radio and TV by
those who are critical of government policy in Ireland."
Campbell, supra note
185, at 35. On the other hand, South African
President P.W. Botha applauded the move, and suggested
that South Africa emulate the British plan. See id.
[203] See DuQuesne and Goodman,
supra note
195, at 119. The ban on racist speech does not
mean that all malicious public expression of bigotry is
prohibited. For example, vicious statements that would
be illegal if made about people of color are considered
admirable if made about people who own guns. While the
details of bigotry change from one historical period to
another, the underlying spirits of ignorance,
self-righteousness, and hatred remain constant.
For example, television
personality Jonathan Ross called gun club members "a
shambling bunch of no-hopers." Jonathan Ross, Sunday
Express, July 7, 1996. Boy George, the
transvestite pop singer, asserted, "Guns are vile things
and people who belong to gun clubs are seriously weird
.... Only the police and criminals need guns." For a
character like Boy George to deride other people by
calling them "seriously weird" is an impressive display
of chutzpah. See generally The Boy George
Homepage, <http://www-personal.umich.edu/~geena/boygeorge.html>.
Boy George had earlier earned notoriety for
participating in a government campaign denouncing heroin
at the same time that he was secretly using heroin.
See Junk Rock: Boy George's Fall from Grace, <http://www_personal.umich.edu/~geena/ktbcstuff/articles/drugs.html>.
Boy George's "seriously
weird" comments brings to the fore one aspect of the
psychological basis of some self-righteous crusaders. Do
some crusaders in favor of laws to criminalize
homosexuality have private insecurities about their own
sexuality? Do some crusaders who do not trust other
people to own guns have private fears about their own
ability to control violent impulses?
[204] See DuQuesne & Goodman,
supra note
195, at 143, 165.
[205] See Ewing & Gearty, supra note
194, at 85-86.
[206] See id. at 165.
[207] See id. at 248 (citing Independent,
Nov. 11, 1988; Independent,
Feb. 13, 1989). The Guilford Four, convicted of
perpetrating an IRA bombing, were set free after many
years in prison when it was admitted that the police had
fabricated evidence and had extracted confessions by
beating them. The story is told, with some fictional
alterations, in the movie In the Name of the Father.
[208]DuQuesne & Goodman,
supra note
195, at 33.
[209] See Campbell, supra note
185, at 37 (citing The Official Secrets Act §3(1)).
[210] See id.
[211] See Ireland v. United Kingdom, 2 European
Human Rights Rep. 25 (1978)
[212] See Barry James, Justice in England
Undergoes Stress, L.A. Times,
Apr. 7, 1985. The "five techniques" were condemned
by the European Court of Human Rights as inhuman and
degrading. See Ireland v. United Kingdom, 2 European
Human Rights Rep. 25 (1978).
[213] See Hillyard &
Percy-Smith, supra note
197, at 257-58, 272. See also
Ewing & Gearty, supra note
194, at 216. The Irish Bishops' Commission for
Prisoners distributes a leaflet to Irish emigrants to
Britain that warns young people that, if arrested, they
should expect "rough, accusational anti-Irish treatment"
and should be prepared for "disorientation resulting
from solitary confinement ... and lack of contact with
anyone except the police." The leaflet advises Irish to
"sign nothing" without first consulting a lawyer.
Mary Holland, Ireland Laments Her Innocents Imprisoned
Abroad, Observer, Oct. 22,
1989, at 2.
[214] See Hillyard &
Percy-Smith, supra note
197, at 273. See also Regina v.
Secretary of States for the Home Department, ex parte
Stitt, quoted in Ewing & Gearty, supra note
194, at 217) (requiring reasons for exclusion
"would be fraught with difficulty").
[215] See
Brogan v. United Kingdom, 11 European
Human Rights Rep. 117 (1989).
[216] See generally Kevin Dawson, Pressure
Mounts to Reopen Birmingham Case, The
Sunday Tribune, Oct. 22, 1989, at A15;
James Carvel, PM Clings to Detention Powers, The
Guardian, Oct. 21, 1989, at 1.
[217] The first time the Prevention of Terrorism Act
was used was after another pub bombing in the English
town of Guilford. Four people were arrested, held
incommunicado in prison for a week, and coerced into
false confessions by administration of drugs and by
threats against their families. While the "Guilford
Four" were being held, the police used the time to
fabricate evidence against them. Although members of the
Irish Republican Army already in prison confessed to the
Guilford bombings, the Guilford Four were tried,
convicted, and sentenced to life in prison. Several
leading English statesmen, including Roy Jenkins, felt
that the men had been framed. A campaign to free them
continued for fifteen years, until, upon discovery of
police notes of fabrication of evidence, the Guilford
Four were released from prison. See generally
R. C. Longworth, Perjury, Abuse of Prisoners Lead to
Criticism of British Police, C.J.
Int'l., Sept. 1990, at 19.
[218] See Ewing & Gearty,
supra note
194, at 18-19. Among the better-known cases
involving Irish defendants allegedly tortured into
confession by the police are the Guilford Four, the
Maguire Seven, and U.D.R. Four. See Craig R.
Whitney, Faith in British Justice System is Shaken by
Abuses and False Jailings, N.Y. Times,
June 2, 1991, at 1, 12.
[219] McIlkenney v. Chief Constable of West
Midlands Police Force, 2 W.L.R. 872 (C.A. 1980).
[220] Seventeen members of the ruling party in
Parliament objected to the lack of time for discussion
but not to the substance of the bill. BBC News, (last
visited Feb. 7, 1999) <http://news.bbc.co.uk/hi/english/uk_politics/
newsid_163000/163833.stm>.
[221] See
Criminal Justice (Terrorism and Conspiracy) Act of 1998,
1998, ch. 40, §§ 2A-(2) to (3) (Eng.).
[222] See id. at §§
2A-(4) to (6).
[223] See id. at §
4-(3).
[224] BBC News (last visited Feb. 7, 1999) <http://news.bbc.co.uk/hi/english/uk_politics/newsid_16400/164559.stm>.
[225] London Telegraph (last visited Feb. 7,
1999) <http://www.telegrahp.p&atmo+yyyyyyyp&pg+/et/
98/9/4/nbil04.html>.
[226] See Hillyard &
Percy-Smith, supra note
197, at 274.
[227] In addition to the matters raised in this
section, consider the incredible statement quoted at
text accompanying supra note
219.
[228] See Attorney-General v. Antigua
Times Ltd., 1976 App. Cas. 16.
[229] See Robinson v. The Queen, 1985 App.
Cas. 956.
[230] See David Henderson,
Innocence and Design--The Influence of Economic Ideas on
Policy 36 (1985); Cento Veljanovski,
Privatization in Britain -- The Institutional
Constitutional Issues, 71 Marq. L.
Rev. 579 (1988).
[231] See Philip John Stead,
The Police of Britain 147 (1985).
[232] See id. at 150. Although the
prosecution can dismiss as many potential jurors as it
wishes, the defense's peremptory challenges are limited
to three. See Hillyard &
Percy-Smith, supra note
197, at 157.
[233] See Police and Criminal Evidence Act
1984, § 58(1) (Eng.). See also
Ewing & Gearty, supra note
194, at 38-39.
[234] See
Wong Sun v. United States, 371 U.S. 471 (1963).
[235] See Police and Criminal Evidence
Act, supra note
233. See also Ewing &
Gearty, supra note
194, at 45.
[236] See
Criminal Justice and Public Order Act, 1994 (Eng.)
[237] See Stephen Gillers, The Prosecution
and Defense Functions: Do They Promote Justice?
The Record 626, 661-63 (1987). Such an
arrangement is too much, even for the United States'
armed forces. In the mid-1970s, recognizing the
corrosive effect of this "cozy" arrangement on the
administration of justice, each military service created
a separate defense branch within its Judge
Advocate Corps. Zealous representation was deemed a
crucial priority.
[238] See Barry James, Justice in England
Undergoes Stress, L.A. Times,
Apr. 7, 1985, at 2.
[239] See DuQuesne & Goodman,
supra note
195, at 26 (discussing the Interception of
Communications Act, July 25, 1985). American
wiretaps authorize only the recording of conversations
regarding the subject of the tap. British wiretappers
are required to record all conversations on the tapped
line. See Ewing & Gearty,
supra note
194, at 70.
[240] See DuQuesne and Goodman,
supra note
195, at 80-81 (citation omitted).
[241] See Kuruma Son of Kaniu v. Regina, 1
All E.R. 236, 239 (1955) ("the test to be applied
... is whether it is relevant to the matters at issue.
If it is, it is admissible and the court is not
concerned with how the evidence was obtained.")
[242] The only judicial forum for discussion of
wiretap legality is in a prosecution against the illegal
wiretapper, an extremely rare event. See
Ewing & Gearty, supra note
194, at 80-81.
[243] See DuQuesne & Goodman,
supra note
195, at 96.
[244] Nelson Pickett, Barry's a bit British, but
all bobby, Or. J., Nov. 4,
1981, at 8.
[245] See Police and Criminal Evidence
Act, 1984, ch. 60 (Eng.).
[246] See Greenwood,
supra note
33, at 202. A warrant is still required for home
searches in most cases. See id.
[247] See Duquesne & Goodman,
supra note
195, at 111 (citing §71 Debate on Police and
Criminal Evidence Bill, House of Lords, June 21, 1984).
The bill is codified as Police and Criminal Evidence
Act, 1984, ch. 60 . (Eng.). The original prohibition
against carrying "offensive weapons" was the
Prevention of Crimes Act, 1953, 1 & 2 Eliz. 2, ch. 14, §
(1), (Eng.).
[248] See Ewing & Gearty,
supra note
194, at 23.
[249] See Lorton, supra note
43, at 73-74.