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Ethical Degradation

2013 May 28
by Ian Welsh

We make distinctions between crimes, even the same crimes.  Unintentional killing is ranked lower than intentional killing, and pre-meditated (planned) killing is ranked higher than crimes of passion (finding your husband in bed with another woman and killing him.)

We also make distinctions between people who kill one person, two people, three people and so on.  A person who has killed more people, gets a longer sentence.

This is known as proportionality. All murders are not the same, nor are all thefts, nor are all acts of fraud.  The amount of harm they cause varies, and the amount of punishment they are due varies by reason: we punish the woman who kills her cheating husband when she finds him in bed with another woman a lot less harshly than we do a cold calculating murder to get the life insurance reward.

Distinctions between crimes, between bad things are important.  They are important for policy reasons and for ethical reasons.

The inability to make these sort of ethical distinctions, to say ‘well Fred killed one man, a military man, and that’s just as bad as Stalin killing millions” is an ethical failure.  It is an abominable ethical failure.  Scale matters and crime and justice are not boolean.  More to the point, it is far more important to stop the mass murderers of this world, whether they are Stalin, Mao or lesser mass murderers (note the distinction!) like George Bush and Barack Obama.

This is the same brand of ethical failure that locks up non-violent drug offenders for life, that doesn’t jail bankers who commit fraud (because they didn’t do anything violent, even though people die as a result of what they do), and so on.  It is of a piece.  There is no justice without proportionality and anyone who is incapable of drawing distinctions between crimes is an ethical imbecile.

To use one of the phrases of the day “this is why we can’t have nice things.”  Specifically, this is why we cant have a justice system that works, a just foreign policy, politicians who aren’t monsters and citizens who aren’t complicit in mass murder. If you think what the Woolwich murderer did is anywhere close to as bad as what George Bush or Tony Blair did you are unable to make even gross ethical distinctions, and are unsuited to exercise the responsibilities of citizenship.

Tens of thousands of murders are worse than one murder.  Understand this.  If you can’t, recuse yourself from the public sphere, please.

30 Responses
  1. Bolo permalink
    May 28, 2013

    It’s a frightening binary logic that people subscribe to which collapses all meaningful distinctions within categories. “All murder is wrong, therefore all murderers should be treated the same.” It seems that saying something is “bad” or “wrong” is the only distinction, the one value upon which all judgement should hang. Then those who it applies to are forced into the same, unitary category.

    Going by a few of the comments on your last post, the person who assassinates Hitler would be almost as bad as Hitler himself.

  2. May 28, 2013

    Well said Ian. Thank you.

    mfi

  3. bystander permalink
    May 28, 2013

    It’s unfortunate that, evidently, this cannot be said in a UK print publication.

  4. Carol Newquist permalink
    May 28, 2013

    bystander, that is deeply disturbing but not surprising. It’s part of the ramping-up and clamping-down process we’ve seen underway in the past decade or more, and it’s increasing in intensity. The latest is this “prejudicial” excuse for censorship. How many more years before you’re hauled in and detained for saying what Ian has said? A decade? Two decades? Five years? In fifty or more years, if we’re still around, will we be brought in for reprogramming and reeducation if we even think such things as is registered by our biometrics?

  5. May 28, 2013

    @ bystander May 28, 2013

    Now let me get this straight. The Guardian is a British newspaper, with an overwhelmingly British readership, and subject to British law. They have acted in accordance with those laws, specifically in accordance with those laws that have been enacted to ensure that defendants get as fair a trial as possible by restricting what can be said about them and the acts that have led to them being defendants accused of a particularly gruesome murder that has caused widespread public revulsion in the UK.

    As you haven’t troubled yourself to quote the very short article in full I’ll do it for you:

    Woolwich attack: why we have decided to turn off comments | Natalie Hanman | Comment is free | guardian.co.uk:

    There has been some confusion from commenters as to why we have turned off the ability to comment on Comment is free articles about the Woolwich attack. In an ideal world, we would allow our readers to debate all of the articles we run on the site, but we felt it was sensible for us to restrict comments on these pieces because once people have been arrested there is a risk of contempt of court if users post prejudicial remarks about the case. Following consultation with our lawyers and community moderators, we will endeavour from now on, where resources allow, to have one premoderated thread on the topic open each day. Today’s article from Boya Dee is here.

    Here’s the important point in the Guardian article explaining why they acted as they did:

    once people have been arrested there is a risk of contempt of court if users post prejudicial remarks about the case

    Adebolajo and Adebowale have a human right to as fair a trial as possible and the Guardian – entirely correctly, have acted to obey the legislation safeguarding Adebolajo and Adebowale’s human right to a fair trial in a process and by people as free from the taint of prejudicial influence as possible.

    You apparently find that ‘unfortunate’. How contemptible.

    mfi

  6. Carol Newquist permalink
    May 28, 2013

    By that logic, mfi, no news agency should report on the event at all. Anything they print will be prejudicial regardless of protestations they are neutral and objective professionals. The citizens of Britain should just wait for official proclamations of what happened. Nice. There goes firedoglake in mfi’s brave new world where discussion of current events prejudices said current events, so said discussion must be shut down and we should look to the sources of authority to tell us what has happened, what is happening and what will happen.

  7. May 28, 2013

    @ Carol Newquist May 28, 2013

    Really you, your various personae, to say nothing of your sock puppets, should learn how to read. A short course in logic 101 would also help.

    mfi

  8. Celsius 233 permalink
    May 28, 2013

    @ Above; Hear! Hear! “Its” so tiresome…

  9. bystander permalink
    May 29, 2013

    @ mfi

    Oh, do take a chill pill. The law was written before the advent of the internet. And, The Guardian’s decision – though in compliance – cannot answer non-UK sites that are free to publish anything they want on the subject, and UK readers who have access to avail themselves of that discussion. Until this restriction is globally recognized (I’m sure there are conversations occurring between compliant telecoms and sympathetic global media outlets), UK readers are free to pursue any prejudicial remarks anyone wants to make in the wilds of the internet (where, btw, The Guardian is attempting to compete).

    In addition, the genuinely funny part of this restriction, is the op-eds that The Guardian has published are considered to have less prejudicial power than the comments written in response by readers. Really? Given that the majority of comments (before they were summarily disappeared – ~3,000 in Glenn Greenwald’s thread) simply echoed what was being written by op-ed authors across The Guardian, it’s hard to view the comments as more prejudicial, or prejudicial at all, by comparison. They’d best disappear the op-eds in addition to the comments.

    Yes. We Yanks understand that people in the UK are reassured by their various “speech laws.” The Guardian US, however, is trying to reach a different market with a different “culture” and a different set of expectations. And, we’re still free, here, to opine about that.

    What I find “unfortunate” is your apparent provincialism.

  10. May 29, 2013

    @ bystander May 29, 2013

    The law was written before the advent of the internet.

    Wrong. You’re can’t even get that much right and you expect me to take you seriously.

    Whether you like it or not The Guardian is a British Newspaper controlled by a British Trust incorporated and registered under British law and answerable to the British courts. The legal standards that apply to everything published by The Guardian in all the media in which it publishes including comments and advertisements are British legal standards as set out in statute, SIs and Judgements of the courts. Those standards apply irrespective of which market the article, comment, or advertisement, is aimed at. The Guardian is required to operate to British legal standards not yours, get used to it.

    Are you really trying to compare an op-ed that has been vetted and cleared by the Guardian’s in-house lawyers with comments made by the general readership? Really? Got false analogy much?

    As to the rest of your comment I suppose I shouldn’t be surprised that an American provincialist wouldn’t see anything wrong with other countries’ legal systems degenerating to American standards.

    mfi

  11. May 29, 2013

    Sheesh, once again I seem to have tripped the moderation system. Sorry Ian – I’m not actually trying to give you extra work.

    mfi

  12. May 29, 2013

    And a P.S.

    The primary legislation is theContempt of Court Act 1981 which does indeed pre-date the internet. That is irrelevant. The Act encompasses all forms of publication including electronic ones. This remark applies equally to SIs, rules of the Courts, and – far more importantly Judgements of the British Courts in which the courts have held that the 1981 act and the 1982 Criminal Justice Act apply to all media.

    I remain disgusted, ‘though not even remotely surprised, at the disdain shown by commenters here for legislation aimed at safeguarding the elementary Human Right to a fair trial.

    mfi

    mfi

  13. Ian Welsh permalink
    May 29, 2013

    Mark,

    don’t worry, it happens. I have over 120 spam in my spam folder right now, so I have to keep it on. Usually I’m pretty fast at checking flagged comments, but, of course, if I’m afk, it may take a while.

  14. May 29, 2013

    markfromireland:
    Also, though they don’t say, I’m sure the comments would fill up with racist, EDL-type garbage. Just because it’s a left-leaning British paper doesn’t preclude haters from coming over and filling the comments section with hateful garbage.

  15. May 29, 2013

    Second attempt as what I wrote was unclear.

    For: This remark applies equally to SIs, rules of the Courts, and – far more importantly Judgements of the British Courts in which the courts have held that the 1981 act and the 1982 Criminal Justice Act apply to all media.

    Please read: This remark applies equally to the Human Rights Act, SIs, rules of the Courts, and – Judgements of the British Courts in which the courts have held that the 1981 act and the 1982 Criminal Justice Act apply to all media as of course does the Human Rights Act.

    I’ll add that the UK is in the process of updating the legislation at present the Criminal Procedure Rule Committee and the Law Reform Commission have both reported and issued their reports which closed on February 28th of this year. Lord Justice Treacy and Mr Justice Tugendhat, have sent the Judiciary’s response although whether or not that response has been published yet I do not know.

    mfi

  16. May 29, 2013

    @ Phil Perspective May 29, 2013

    I’m sure you’re right about that I’ve seen some fairly unpleasant stuff there from time to time – particularly on anything even remotely related to Islam or to immigration. The Guardian seems to be pretty good at getting rid of such comments but even so some get through or stay up for a fairly long time before being zapped.

    In this particular case they’ve said what they’ll do is to allow comments on one article dealing with the topic. But that all those comments will be pre-moderated. Which seems a reasonable compromise.

    @ Ian Welsh

    Thanks Ian, believe me I sympathise about the spam. It’s one of the main reasons why “Guides” will shortly be going “members access only”.

    mfi

  17. hvdub permalink
    May 29, 2013

    MFI,

    And with all due respect, no one here hesitates to criticize, and rightly, U.S. law or action. I see no reason not to criticize U.K. law when a consequence of that law would be the abridgement of the type of discussion that Ian has so importantly raised here and which you certainly recognize.

    No doubt the Guardian has its reasons to meet the requirements of the law. But the law I might remind you is generally, and wherever found, an ass. And that is because it never can accommodate all of the circumstances that might arise. In this case the U.K. law goes too far in blocking alternative statements of reality.

    Having served as both judge and juror I have found it to be not at all difficult to separate what I have heard in the press and from others from the facts actually elicited at trial and to make determinations solely on the basis of what I have seen and heard at trial.

    It seems to me that the likelihood and risk of “official” stories drowning out all else is far greater than that of a jury being hopelessly corrupted by hearing a wide variety of alternative theories as well as scurrilous rants all of which will eventually have to give way to the facts at trial.

  18. hvdub permalink
    May 29, 2013

    Finally, a sense of proportionality is essential to justice being done and served. The distinctions that Ian makes here are very important ones. I would certainly prefer to see a jury that had been exposed to Ian’s perspective rather than one that had only heard “official” narratives. Their deliberations would, of necessity, be that much more attuned to the greater reality rather than to the strict limitations of the law, which, after all was written by men, not gods. The law should of course guide them but cases should be decided in context, not as some sort of exegesis of holy text.

  19. Carol Newquist permalink
    May 29, 2013

    Also, though they don’t say, I’m sure the comments would fill up with racist, EDL-type garbage.

    There was no also in mfi’s confident statement that the Guardian was just being a law abiding entity. So no. No “also.” Although, just between you and me that is precisely why they are doing it. Not to mention, I would think if any case is a foregone conclusion, this one is, so it’s not like comments to the Guardian are going to preclude this “deranged criminal” from being found guilty any more than the living Beantown Bombing Bro would be precluded from being found guilty.

    It’s amazing how people on the so-called “left,” people like mfi who are apparently respected as voices of progressivism, are so gung-ho for censorship, especially when it’s about scoring points on a blog. It gives a great deal of insight into the Bolshevik mind. Replace one tyranny with another replete with censorship because it’s such a pain to defend your views when you can just delete your critics.

  20. May 30, 2013

    Only an idiot without even the remotest idea of what and who they’re talking about would characterise me as “left”.

  21. Ian Welsh permalink
    May 30, 2013

    Certain parts of the traditional right and left look very similiar these days. Minus the racism I often find a lot to agree with with Paleocons. It makes me tired.

    But then I was a red Tory all of 15 years ago. A lot of the most radical left wingers I know were old style conservatives.

  22. May 30, 2013

    @ hvdub May 29, 2013

    You’ve served both as Judge and Juror? Please elaborate. You certainly wouldn’t be allowed do that over here either in the UK or in Ireland if there was any overlap in the time between your studying law and serving as a Juror. I find the idea of you having served as both Judge and Juror utterly repugnant. There are circumstances where it’s unavoidable – the ‘Diplock’ courts spring to mind, but even under those circumstances it’s still the ‘least bad’ alternative.

    To make this perfectly clear. The Guardian’s lawyers aren’t afraid of being ‘done’ under the Contempt of Court Act 1981 they’re afraid of being ‘done’ under the Human Rights Act as happened recently to both the Telegraph and the Sunday Times.

    It is disgusting that so-called ‘progressives’ think that the right to discussion should overrule the defendants’ absolute right to a fair trial free to the maximum extent possible .

    No.

    The law cannot stop that happening outside the jurisdiction ‘nor contrary to what some commenters above have tried to imply does it seek to do so. The law seeks to ensure that within the jurisdiction within which the defendants will be tried that their absolute right to receive a fair trial free of taint of prejudice is upheld and vindicated.

    This is a high profile case where the defendants are manifestly subject to contumely and to widespread public opprobrium. It’s going to be difficult enough to give them a fair trial free of taint. Just as it’s difficult to give paedophiles a fair trial free of taint. The fact that it’s difficult does not mean the law should not attempt it. On the contrary, the measure of a civilised legal system is that it realises that it’s duty to protect extends in particular to defendants subject to public hatred and contempt and that the duty to give such defendants a fair trial is more than merely a duty. It is an imperative.

    Fiat justitia ruat caelum.

    mfi

  23. May 30, 2013

    But then I was a red Tory all of 15 years ago. A lot of the most radical left wingers I know were old style conservatives.

    And now you put with a conservative Irish Catholic who is actively involved in Conservative European Catholic politics commenting on your blog :-).

    You’re very right about the overlap it makes life interesting both in the normal and the Chinese proverbial senses of that word.

    mfi

  24. hvdub permalink
    May 30, 2013

    As a juror in a criminal case, as a judge in certain civil matters. I am not a lawyer, though I write about the law.

    Although I understand the argument for the British approach, I believe its dangers outweigh its value as I tried to explain above. Having spent a good portion of my life dealing with the law, I believe that the greatest danger arises in systems that pretend to be closed. One ends up like the blind men with the elephant.

    I believe that more information makes a fair trial more likely. Information limited to State leaks is likely to mislead. I no more like the comments made by the hyenas than do you but I believe that a juror or jurist that can’t separate the wheat from the chaff in that environment isn’t likely to do the same in a trial.

  25. May 30, 2013

    @ hvdub May 30, 2013

    In other words you’re neither a judge nor a lawyer. You have as you yourself admit no legal qualifications whatsoever. Do you even have a law degree? Frankly I rather doubt it. You are at most a lay magistrate. You’ve never either defended a person accused of a major felony or sat in judgement upon them. You have no locus standi whatsoever from which to advocate that the right of a defendant to as a fair a trial as possible as free from prejudicial taint as possible be diluted. None. And yet that is what you’re doing, you want every other judicial system and every other judiciary to join the American judiciary in their Gadarene rush to dilute the rights of the defendant in favour of some fake idea of balance.

    No.

    mfi

  26. May 30, 2013

    @ hvdub May 30, 2013

    And quite frankly eff off. People like you bloody well disgust me you want to throw out the most basic legal protections (and defendants have precious little in the way of safeguards to start off with) we have and you then have the gall to pretend that you are doing so to secure some principle.

    Even as a practical matter why in God’s name would anybody adopt American jurisprudence or methods when that system is notorious for its massively high rates of wrongful convictions. The only reason for doing so would be stack yet further the balance of advantage towards the state against the citizen.

    No.

    mfi

  27. hvdub permalink
    May 30, 2013

    I attempted to engage in civil discourse with you. As to my qualifications you know nothing.

    Would you like to engage the concerns I raised or not? I am not trying to impose anything on anyone. I would not presume to do so. Particularly when I am responding to one so obviously knowledgeable about the law. I do resent, deeply, your suggestion that I don’t care as deeply as you about justice being done. What is particularly odd is that we are undoubtedly in agreement with respect to Ian’s discussion here and yet you tell me to eff off.

    To the extent that our (U.S.) system has massively high rates of wrongful convictions (I don’t disagree with you) it is because the State, which shares the prejudices of its citizens, is in complete control of the information. Although we don’t have draconian laws prohibiting discussion of matters before the bar by non-parties, American media, in case you haven’t noticed, are lap dogs for the authorities. Alternative understandings are rarely, if ever, addressed there. There are rarely good outcomes when the State controls all of the information.

    Let me just ask you this – do you suppose that the eventual pool of jurors are immune to all of the garbage you and I both hate that emanates from our fellow citizens re race, religion, culture, imperialism, etc. etc? Do you think many of them have been exposed to the nuanced discussion of the case Ian presented us with? Would Ian’s discussion help enliven their understanding of the facts presented in the case?

    You seem to prefer the U.K. approach to all of this because you believe that people can’t keep from telling each other to eff off. That they won’t listen to reasonable voices like Ian’s. And yet, when we are in a forum led by Ian’s eminently reasonable voice, and I try to weigh in you tell me to eff off without ever once answering me. Sorry that is pretty self-defeating.

  28. Carol Newquist permalink
    May 30, 2013

    Only an idiot without even the remotest idea of what and who they’re talking about would characterise me as “left”.

    True, I was an idiot about that. I really no idea. Thanks for enlightening me as to your persuasion. It all makes perfect sense now. It also makes sense why you take up the cause for the afflicted Muslims. You share in their conservatism. When viewed in that light, it’s not so magnanimous on your part. It’s a man’s world, so let’s keep it that way, right mfi?

    However, I will say it rather ironic for someone who is an avowed conservative roman catholic to be calling anyone an idiot. What’s moral/ethical and intelligent about openly supporting a paedophilic institution?

  29. June 3, 2013

    You know one of the nice things about the dear old army particularly at the time that I joined is that they like their officers to be trained in a variety of skills both civilian and military and to acquire at least two qualifications again both civilian and military. In my case one of the civilian qualifications was as a barrister specialising in Constitutional Law, Human Rights Law, and Evidentiary and Procedural Law particularly as they relate to Human Rights law and, in Ireland, to the Constitution. I’ve filed a goodly number of Amicus Briefs in the American Appeal Courts in my time, I am qualified to appear in the courts of Ireland, England and Wales, and Northern Ireland.

    One of the nice things about being a barrister is they teach you the very useful skill of ferreting out when somebody doesn’t know what they’re talking about and the even more useful skill of ferreting out not only when somebody doesn’t know what they’re talking about but is engaging in deliberate mendacity which is a lawyerly way of saying ‘telling lies’.

    At some point or another when a person is qualifying as a lawyer particularly as a barrister because barristers are lawyers specialising in court arguing cases in a Court of Law one or other of their lecturers is going to say something to them along the lines of ‘when the facts are on your side hammer on the table citing the facts, when the principles at stake are on your side hammer on the table reminding everyone what’s at stake, and when the law is on your side hammer on the table citing the law,’ how very very unfortunate for you that the facts, the principles of Human Rights, and the Law are all on my side. Is it not unfortunate that the statements you have made purporting to support a wholly false proposition are manifestly false?

    Let us engage in a little ground clearing before we proceed. I’ve already dismissed the ludicrous comments of the person calling themselves ‘bystander’ because those statements have manifestly been made by an ignorant American provincialist without even the remotest idea of what they’re talking about.  The comments made by the resident hysteric together with the fact that they demonstrably resort to deliberate falsehood whenever it suits them can be dismissed for the same reason. You however have set yourself up as an authority in support of a wholly false proposition which could only be advanced by somebody utterly ignorant not only of the facts but also of the law in question and in complete and total disregard for the elementary Human Right of an accused to receive a fair trial free of taint of prejudice and to be tried and if necessary convicted on the basis of evidence provable in a court of law beyond the shadow of a reasonable doubt.

    What that means is that first there must be a law that defines the act or acts in question as a crime and which moreover classifies the severity of the crime. Assuming that the act of which a person accused of a crime is indeed a crime they can only be convicted of having committed the crime on the basis of:

    1. Physical evidence.

    2. The testimony of witnesses to the crime of which the defendant is accused, its circumstances, or its aftermath.

    3. The testimony of an expert witness or witnesses such as for example, a pathologist.

    4. Some combination of one to three above.

    If an accused is convicted on any other basis than those I have listed above  then their human rights to a fair trial have been so grievously trampled upon that that on appeal their conviction will be quashed.

    You have tried to pretend that the Contempt of Court and the Human Rights Act (which enacts into British Law the provisions of the European Convention On Human Rights) are a means by which the authorities in some way prevent information favourable to the accused from being presented to the jury. Nothing could be further from the truth. The Contempt of Court Act, and the Human Rights Act are amongst the few weapons available to the counsel for the defence. Only a fool who has never read the Acts in question let alone defended somebody accused of a crime would try to pretend otherwise. The purpose of The Contempt of Court Act is not to help the prosecution or even the Judiciary construct an official narrative or to prevent other narratives being heard the purpose is to ensure that statements prejudicial to the defendant do not taint the procedings that defendant if found guilty is convicted on the basis of:

    1. Physical evidence.

    2. The testimony of witnesses to the crime of which the defendant is accused, its circumstances, or its aftermath.

    3. The testimony of an expert witness or witnesses such as for example, a pathologist.

    4. Some combination of one to three above.

    And nothing else. The rights of persons accused of crimes to a fair trial in which only the facts of the matter and the applicable law are considered outweigh all others. They certainly outweigh the rights – such as they are, of third parties without any standing in the matter to discuss the matter in such a way as to risk corrupting the trial with prejudice.

    As for your so-called qualifications you yourself stated them very clearly:

    As a juror in a criminal case, as a judge in certain civil matters. I am not a lawyer, though I write about the law.

    As to your claim of having been a juror. I don’t believe you. I don’t believe you because in every single American jurisdiction a person called to jury service is informed before and during the trial that they may only consider and convict on the basis of facts proved to their satisfaction in the court to which they have been called to serve. In every single American jurisdiction a person called to jury service recieve written material explaining this before the called. The prosecution is obliged to remind them of it at least once during the trial, the judge is required to explain to them that they may only convict on the basis of facts proven to their satisfaction during the trial and only on the basis of those facts. The trial judge is also required to expessly instruct the jury that they may convict only on the basis of the evidence presented to them in court and on no other. The trial judge is also obliged to explain the relevant law to them. Do you really expect anyone reading this to believe you when you say that you have served on a jury? All of these instructions about what may considered, how to avoid a miscarriage of justice, were you asleep or what while all of this was going on?

    "As a juror in a criminal case" my ass.

    Then there’s this: "as a judge in certain civil matters."

    I don’t believe you. I don’t believe you because every judicial, para-judicial, or administrative tribunal in the USA  are required to decide the cases which they are empowered to decide on the basis of the relevant and proven facts and the relevant laws. They are not allowed to decide on the basis of extraneous matters and if it can be proven they have done then that magistrate or administrative commissioner has not only committed a tort but they have also committed the crime of misfeasance.

    I suppose it’s possible you’ve written on legal matters. Which publication? The National Enquirer?

    Finally I don’t take even slightly kindly to your insulting suggestion that we are in agreement. No we are not. Nor are we ‘on the same side’. I am on the side of the citizen accused of a crime you manifestly are not. You are perfectly prepared to trample some of the most basic human rights of all in favour of some ludicrously distorted corruption of free speech. The few legal protections that remain to the citizen and you want to weaken them yet further.  You want to drag every other jurisdiction down to the debased level of the American one and you want the media over here to have the right to behave in the revolting and corrupt way they do in America. 

    No. We are not in agreement and never will be I despise you for your attempt to further strengthen power of the State as it prosecutes defendants. I despise you for your mendacity. And I loath your attempt to drag everybody else’s legal system down to your level. To Hell with you.

    mfi

  30. hvdub permalink
    June 4, 2013

    I appreciate your strong response. I do not appreciate being called a liar. I take you at your word in this forum, I would appreciate the same. You have always, in whatever forum I have seen your writing, appeared to be concerned for the rights of others. I take that seriously. You have always, however, been a bully to those who disagree with you in any particular. I don’t really take that seriously, but I think it undermines the good arguments you make and it makes argument (in the best sense of the word) particularly difficult. I won’t waste time defending myself or my motives.

    I find it peculiar that you would be “insulted” by my suggestion that we agree with respect to Ian’s initial post. Plainly we do. What we disagree about is the effectiveness of a particular law and of a particular approach to protecting the rights of the accused.

    I am sympathetic to the proposition that the laws you reference attempt to preserve the useful legal fiction of an unbiased courtroom. But I have never seen a hearing where any of the participants did not enter with a theory of the case formed by their life experience, prejudices, sense of place in the community, etc. whether they are familiar with the particulars with regard to the matter being heard or not. I doubt that citizens of the U.K. are immune to this. The best jurists and jurors are aware of this background and attempt to isolate these biases as they listen to the facts presented. But even in the best of cases the unbiased courtroom is merely a fiction we use to help us focus our attention.

    Unfortunately, and as you must know, facts do not lead to ineluctable conclusions. What one person hears as definite proof of guilt, another hears as definite proof of innocence. Even jurists trained in the law frequently disagree in this regard. Inevitably it is the background noise that determines this outcome.

    I don’t care how much control you place on media discussions of cases, when you get to the hearing you will be faced with accused, witnesses, lawyers, jurists and jurors of particular classes, races, religions, bearing, histories etc. A prejudiced juror or jurist will, while promising “to decide on the basis of the relevant and proven facts and the relevant laws” nevertheless reach their conclusion based on prejudice. This is one of the reasons why we have more than one juror and, on appeals generally, more than one jurist. If your mind is closed to argument, it is closed.

    The question is are the laws you reference effective in eliminating this sort of bias from the hearing? If you were the defendant in the already notorious case being discussed here, but not in U.K. media, would you rather have the jurors exposed to Ian’s argument or would you rather they were ignorant of it? Would you prefer a universe of jurors that was exposed to the variety of prejudices already rampant in the community or one in which each juror was subject only to their own unexpressed prejudice?

    I, for one, would prefer a jury that has been exposed to more rather than less. I needn’t doubt the good intentions of the U.K. law to see that it might well be subject to abuse by the state in establishing the prejudices of the field of prospective jurors.

    I could choose to rant at you: “I despise you for your attempt to further strengthen power of the State as it prosecutes defendants.” But I don’t actually think that is your intention. I think you believe it serves the ends you have argued for. If I am wrong about that it is clear that no amount of argument would change a viewpoint so cynically arrived at. So I will choose to take you at your word.

    It is obvious, to me at least, that all law, whether it is the hallowed law of your sceptered isle, blessed and undoubtedly fashioned by the gods or our debased semblance of the law reeking of the sulfurous stench of Hell, has inherent limitations and is subject to abuse by those not committed to the public good. It is in discussions of the public good that we might well fashion somewhat better laws, better able to serve that good.

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