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PART IX


Other Civil Liberties

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.

A. Freedom of Speech and of the Press

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.

B. Terrorism

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]

C. Judicial Review and the Courts

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]

D. The Role of Gun Controls

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.

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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 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.