Many traditions that used to seem indestructible are now extinct. Getting up when a woman walks into the room, respecting one’s elders, teaching children right and wrong all fall into that category. And, joining them there is the antediluvian principle of equality before the law.
In our reactionary past, the same laws were supposed to apply equally to all. The English Common Law was supposed to be impervious to class and wealth, and that’s what it usually was. Yes, people being fallible, laws were sometimes abused and justice wasn’t always served equally. But at least everyone understood what constituted justice, the same for all.
In the past few decades, however, many of our erstwhile legal certitudes have fallen by the wayside. Even such formerly ironclad principles as double jeopardy and the right of refusing to self-incriminate are now seen as merely optional.
They are often superseded in terrorist offences, and the people don’t object much. We’d hate to let a terrorist get off on a casuistic technicality, wouldn’t we? Yes, but we used to hate abandoning our legal principles, the sole guarantor of our liberties, even more.
We used to understand that, though murderers can kill Britons, they can’t kill Britain. On the other hand, replacing our ancient laws with kneejerk responses to class war, racial tensions and faddish biases can have just such an effect.
That understanding is no more, and every day provides illustrations to this melancholy observation. The latest one is the case of the footballer Jack Grealish.
Like so many prodigiously gifted people, Jack struggles to squeeze his effervescent personality into the corked bottle of decent behaviour. Thus, the other day he staggered out of a Covid-defying party the worse for wear and bizarrely wearing shoes that didn’t match.
CCTV cameras caught him zigzagging to his Range Rover, which he then used for a nice game of pinball. First, Jack reversed smack into a parked Citroen. He then backed into a Mercedes, this time quite fast. Bouncing off that vehicle, he mounted the kerb and slammed into a wall.
Some of Jack’s wits, however, remained intact, and he had the good sense to leave his car where it was and run away. That way he wasn’t breathalysed, and by the time the cops found him he was nice and sober.
His much-vaunted ability to think on his feet served Jack well. He avoided the charge of drink-driving and was only convicted of driving without due care and attention. Jack was then banned from driving for nine months, which sentence I find derisory.
Having a few drinks before driving is to me malum prohibitum (wrong only because it’s illegal), provided the chap still operates the car responsibly. However, driving irresponsibly, especially but not exclusively under the influence, is malum in se (wrong in itself).
Hence I would decriminalise the former, but step heavily on the latter. As far as I am concerned, Jack should have been banned for at least three years and warned that the next violation would result in a custodial sentence.
Had he been driving impeccably but found in a spot check to be over the limit, he would have been banned for at least a year. This way, even though he was driving criminally, he was only banned for nine months. That, to me, is a miscarriage of justice.
Alas, not the only one. For, in addition to his derisory ban, Grealish was fined £82,499, which brings us back to that outdated notion of equality before the law. And also another one, that of punishment being commensurate with the crime.
With the crime, ladies and gentlemen, not the defendant’s wealth. Yet a chap earning a fraction of Grealish’s £130,000 a week would be fined quite a bit less, probably by two orders of magnitude.
One has to assume that, rather than observing the fundamentals of the English Common Law, our judges are now committed to the New Testament commandment: “For unto whomsoever much is given, of him shall be much required.”
Such faux piety strikes me as misplaced, tireless though I am in stressing the scriptural roots of our jurisprudence. What’s the justification for punishing two perpetrators of the same crime by such hugely different fines?
It’s true that a levy of, say, £800 wouldn’t make a hole in Grealish’s pocket – he tips barmaids as much. Hence a fine of that amount wouldn’t really punish him the way it would punish, say, a teacher.
The logical inference is that punishment for any crime must be determined on the basis of the pain it can cause the transgressor. Hence, £800 would be a sufficient punishment for our hypothetical teacher, but not for Jack.
Now let’s take this notion to the next logical step. Suppose our teacher for once had a few too many, got behind the wheel and killed a pedestrian on a zebra crossing. Further suppose that an identical crime was committed by a tattooed, facial-metalled thug in and out of prison his whole life.
Obviously, both men should be sent down. However, the thug’s sentence must be at least 10 times as long because he wouldn’t suffer imprisonment as acutely as the teacher would. This way we’ll affirm our commitment to custom-tailored punishments evidently favoured by the British courts.
What’s happening to our law is a tragedy. For I’d suggest that no other nation depends on its constitutional tradition as much as Britain. The monarchy, sovereign parliament and the English Common Law are the three supports on which British nationhood rests.
Britain isn’t France, which, since 1688, when the English constitution adopted its modern shape, has been ruled by several monarchies (constitutional or otherwise), an ad hoc revolutionary committee, a Directory, a military dictatorship, an emperor, five different republics and, from 1940 to 1944, by the Nazis, first de facto and then de jure.
That France has remained France under such circumstances shows how little her national survival depends on her constitutional and legal system. Britain’s survival, on the other hand, is gravely imperilled by our government and courts playing fast and loose with traditions of long standing. Even in such seemingly trivial matters.