The Cradle of Common Law

In the 28 March edition I ran a story about Britain’s Home Secretary, who has started billing released prisoners for their room and board when they have been found innocent after spending years in prison.

No, they didn’t mention the “reasonable and appropriate” salary they could have gotten on the outside. And no, it wasn’t an April Fools joke, as many have assumed.

But before we go on to the discussion, here’s the story:

The Cradle of Common Law

When someone is convicted of a crime and, after years in prison are proven to be innocent, how does society repay them for their incarceration? The U.K.’s Home Secretary, David Blunkett, has an idea of what to do: charge the former prisoners for food and board — at least 3,000 pounds (US$5,430) per year for the prisoners’ “saved living expenses” during their time in stir. A spokesman for the Home Office said the concept “takes into account the range of costs the prisoner might have incurred had they not been imprisoned,” adding “Morally, this is reasonable and appropriate.” It’s not a proposal: the government has already sent bills to some freed prisoners. A spokesman for the Scottish Miscarriage of Justice Organisation called the program a way to “punish people for having the audacity to be innocent.” (Glasgow Sunday Herald) …And the world thinks America is contemptible?

Arthur in the U.S. responds:

The People’s Republic of China has a policy where they bill the family of executed prisoners for the bullet used in the execution (about 25 cents). But if the UK bills INNOCENT people then they have topped the PRC. Impressive.

But another Arthur, from the U.K., had a different take:

The policy you mentioned seems only to be applied to people who are known damn well to be guilty, but to have been got out of jail free by some bit of fluky evidence or the lack of DNA testing 30 years ago. In all of the cases I’ve heard of, these charges were the last shred of justice.

Billing freed prisoners for their room and board isn’t a “last shred of justice,” Arthur, it’s political terrorism. If Her Majesty’s courts can’t prove their guilt beyond a reasonable doubt, they’re done. To release them after serving time and then selectively go after those they can’t prove guilty for “room and board” is, as I said, contemptible. It’s a recipe for anarchy not worthy of (as I put it in the story) “The Cradle of Common Law”.

I certainly have no doubt that some of those released are truly guilty of crimes. But all of them? I doubt it. To let bureaucrats choose which ones to punish when the courts couldn’t or wouldn’t do its job properly is reprehensible.

The Last Shred of Decency

There is something much worse than allowing a guilty person to go free: putting an innocent person in jail. The way we determine guilt or innocence goes a long way toward showing who we are as a civilization; to say “Oh, we let someone out who really should be in jail, but we couldn’t do it according to the rules and thus we’re going to hound them for huge sums of money until they commit suicide — or pay back some of the cash we gave them for stealing their freedom” is, yes, contemptible.

How much so? I’d much rather see a guilty O.J. out playing golf, keeping an eye out for “the real killer” in the rough (wink, wink!), than see an innocent O.J. sitting on San Quentin’s death row. For you — and the Home Secretary — to argue otherwise is indeed unworthy of a citizen of The Cradle of Common Law.

Henry in Connecticut sums it up nicely with this quotation:

“We find in the rules laid down by the greatest English judges, who have been the brightest of mankind, [that] we are to look upon it as more beneficial that many guilty persons should escape unpunished than one innocent person should suffer. The reason is because it is of more importance to [the] community that innocence should be protected than it is that guilt should be punished, for guilt and crimes are so frequent in the world that all of them cannot be punished, and many times they happen in such a manner that it is not of much consequence to the public whether they are punished or not. But when innocence itself is brought to the bar and condemned, especially to die, the subject will exclaim, ‘It is immaterial to me whether I behave well or ill, for virtue itself is no security.’ And if such a sentiment as this should take place in the mind of the subject there would be an end to all security whatsoever.” —John Adams, in defense of British soldiers accused of murders at the Boston Massacre. He won the case for the accused.

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3 Comments on “The Cradle of Common Law

  1. Henry in CT is 4 years ahead of his time in his choice of quotation, with all the recent attention given to John Adams’s biography and the miniseries based on it. Quite a man, for sure, and one I did not know much about until the recent publicity.

    The miscarriage of justice here reminds me, closer to home, of all the asset forfeiture controversy (particularly here in California). There were many innocent people, only accused of a crime but never convicted and in some cases never brought to trial, where the police department seized huge amounts of their property. The standards of evidence were very low in some of these cases (though most of the time they did have to go through a civil proceeding and convince someone about the preponderance of the evidence, though far from the presumption of innocence I would expect in such a case).

  2. Reclaiming this money is nothing to with trying to get a “shred of justice” – your British Arthur is flat wrong, and I challenge him to find any government representative saying that’s what it is.

    What happens is that when a conviction is overturned, a judge will assess compensation for the victim, in terms of how long they were imprisoned. I do not know whether their former income is taken into account, but the general idea is to compensate them for lost income while imprisoned post-conviction.

    I don’t think there’s any compensation for imprisonment pre-conviction if you’re found not guilty in the first place, but that’s another story.

    The Home Office pays this compensation to the victim of injustice. They then promptly try to “claw back” some (not all) of the money, by saying that since the compensation is for lost income, reduced outgoings have not been subtracted. Therefore, they say, the award was over-compensation. So they want some of it back.

    Personally I don’t approve of this practice, but it’s nothing at all to do with trying to punish “guilty” people who have “got off”. It’s about how much the taxpayer should compensate victims of miscarriages of justice.

    I also don’t think that it’s done or not at the discretion of bureaucrats – I believe the policy is that it is done if (and only if) the victim is awarded compensation for their time in prison.

    I think that a far better approach would be to require the courts to award compensation as a full and final settlement – subject to appeal of course, but not subject to new claims in later cases by either party.

  3. I’m a brit and I agree with everything you’ve posted about this. What you haven’t recorded was the howls of protest about this from many people in Britain – all I can say about the person who commented that it was the last gasp of justice is that they most certainly do not speak for British Justice – if that attitude ever prevailed I would go somewhere with a more transparent system of jurisprudence – like Tibet!!


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