Boris is right. Tinkering with the presumption of innocence is, unfortunately, a minor change in the law

Boris Johnson has called for a change in the law. He wants to shift the burden of proof on those accused of travelling to Iraq and Syria to join ISIS. No longer will the prosecution be required to prove that they intended to join ISIS. Rather the accused will have to prove that they travelled there for innocent purposes.

There has been near universal condemnation of Boris’s proposals. The Prime Minister called it a knee-jerk reaction. Nick Clegg was not a big fan either. In addition to rejecting his proposals commentators on both the left and the right have taken issue with Boris’s statement that this was a “minor change” in the law. They argued that instead it was an attack on this hallowed principle that is the presumption of innocence. The fact Boris did not realise that was further proof that he is unfit to become Prime Minister.

However, Boris is completely right. Not about the substantive proposal but about the fact it represents a minor change in the law. The fact of the matter is that the presumption of innocence has in the past few decades been severely eroded. In 1935 we were told by the Lord Chancellor Viscount Sankey that “throughout the web of English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt” [1]. There were only two exceptions: (i) the defence of insanity and (ii) statutory exceptions.

How often did Parliament by statute make exceptions to this golden thread? Andrew Ashworth and Meredith Blake attempted to find out in 1996 [2]. They look at how many of the offences triable in Crown Courts derogated from the presumption of innocence. It was not 5%, 10% or 20%. Out of 540 offences, 219 involved some form of departure from the presumption of innocence. That’s just over 40%! In the Magistrates’ Courts the position was hardly better. There, the defendant bears the burden of proving “any exception, exemption, proviso, excuse or qualification” [3]. At this point one can ask whether the exception has swallowed the rule. So Boris was not wrong when he described it as a minor change in the law.

The situation has not really gotten better since 1996. Parliament continues to reverse the burden of proof on a number of offences. In one respect, however, the situation has gotten better. Previously, if Parliament imposed a reverse burden of proof the courts would just have to apply it. However, following the coming into force of the Human Rights Act, the courts have been able to de facto nullify some of those reverse burdens.

For example in R v Lambert [2001] UKHL 37, the House of Lords was considering a provision of the Misuse of Drugs Act which required a defendant found in possession of a package containing drugs to prove that he did not know that it contained drugs. If the defendant failed to discharge that burden he would be found guilty of possession of drugs. The House of Lords held that this was an unjustfied infringement of the presumption of innocence. So, this provision was read as merely requiring the defendant to adduce evidence that he did not know the package contained drugs. The burden would then be on the prosecution to prove beyond reasonable doubt that this evidence was untrue.

Those wanting to repeal the Human Rights Act (and withdrawn from the European Convention on Human Rights), whilst still adhering to the presumption of innocence, should think carefully about that.

In the meantime the outrage sparked by Boris’s comments should be directed to adopting the proposal the Criminal Law Revision Committee made in 1972: that there should not be reverse burdens in English criminal law [4].

1 Woolmington v DPP [1935] AC 462 at 481

2 “The Presumption of Innocence in English Criminal Law” [1996] Criminal Law Review 306-317

3 Section 101 Magistrates’ Courts Act 1981

4 Criminal Law Revision Committee, Eleventh Report, Evidence (General), Command Paper 4991 of 1972, para 140

Rajiv Shah is a PhD student in Law at the University of Cambridge.

Maybe Karl and Friedrich were right about this Produktionsverhältnisse?

Karl Marx and Friedrich Engels introduced us to the idea of Produktionsverhältnisse, the thought that social relations are determined (or, in a weaker form, influenced by) the methods of production. They did mean it to cover all parts of life too, the way we work, the way we marry, the way we trade and so on. All of which leads to an interest in this:

Women who have several sexual partners before getting married have less happy marriages – but men do no harm by playing the field,a study has found.

According to new research by the National Marriage Project, more than half of married women who had only ever slept with their future husband felt highly satisfied in their marriage.

But that percentage dropped to 42 per cent once the woman had had pre-marital sex with at least two partners. It dropped to 22 per cent for those with ten or more partners.

But, for men, the number of partners a man they appeared to have no bearing on how satisfied they felt within a marriage.

Researchers said the study showed that sex with many different partners ‘may be risky’ if the woman is in search of a high-quality marriage.

It concluded: ‘Remember that what you do before you say ‘I do’ seems to have a notable impact on your marital future. So decide wisely.’

The findings were published in ‘Before ‘I Do’: What Do Premarital Experiences Have to Do with Marital Quality Among Today’s Young Adults?’, published at the University of Virginia.

Well, yes, there’s more than a modicum of special pleading going on in that. One explanation for it all is that the more experience of men a woman has the more she realises that most aren’t very good at this sex thing, leading to possible unhappiness with the Chosen One.

Being less cynical (and possibly less amusing) about it though it is true that one of the great societal changes of the last couple of generations has been the change in attitude towards virginity, pre-marital sex and so on. And that’s where Mark and Engels might well have been right: for the technology surrounding reproduction has changed in that time period too.

Time was when the only reliable method of knowing that a man was bringing up his own children was if his wife had been a virgin at marriage and chaste since then (no, not celibate, obviously). These days that’s simply not true: and the reference is not to DNA testing. Effective and reliable contraception has meant that, by and large, pregnancies are the result of an active decision. Thus that value of virginity and or chastity has fallen.

This is all allied with Gary Becker’s work on why the wages of prostitution are so high: it’s not, at root, a highly skilled job after all. But it does involve a high expenditure of social capital: thus the wages to compensate for that.

In a world where highly desirable men would insist upon having virgin wives then virginity had a high value. In a world where this is not so, for virginity is no longer the only valid assurance of not being pregnant by another, the value of that virginity has fallen.

And we can most certainly see this as being true in the society around us. Outside certain highly religious groups there simply is no value placed upon the virginity of a woman of marriageable age (something that has risen by about a decade as well).

So we might well say that the change in the technology of reproduction has led to those changes in social relations. Which would be interesting, to find something that the Bearded Ones were actually correct about.

This is not certain though, not certain that we’ve identified the correct technology. For the rise in pre-marital sex didn’t actually start with the pill, in the sixties. Rather, in the fifties, with the ability of penicillin to cure the clap. Which might make slightly more sense: human beings, young human beings especially, are known to be subject to hyperbolic discounting. Knowing that a horrible disease can be cured near immediately might well have more effect on behaviour than a longer term concern of the quality of a future marriage partner.

No, Boris – we are never guilty until proven innocent

The proximity of the 800th anniversary of Magna Carta next year makes Boris Johnson’s Telegraph column from Sunday even more shocking. His plan to arrest anyone who travels to Syria or Iraq without ‘good reason’ utterly abandons the presumption of innocence. Instead, all travelers would be presumed guilty – and guilty of the extremely serious charge of terrorism – unless they could somehow convince ‘the authorities’ otherwise:

We also need to be far more effective in preventing British and other foreigners from getting out there…We need to make it crystal clear that you will be arrested if you go out to Syria or Iraq without a good reason. At present the police are finding it very difficult to stop people from simply flying out via Germany, crossing the border, doing their ghastly jihadi tourism, and coming back. The police can and do interview the returnees, but it is hard to press charges without evidence. The law needs a swift and minor change so that there is a “rebuttable presumption” that all those visiting war areas without notifying the authorities have done so for a terrorist purpose.

Boris of course has the laudable aim of curbing the jihadists. But that is just the sort of ambition that has excused too many careless erosions of our ancient freedoms. Already he calls for the return of control orders and laments how hard it is to press charges against British citizens without evidence; as if the assumption of innocence until proven otherwise has not acted as the ultimate safe-guard of citizens against radicals throughout modern history.

According to the Mayor, such controls and assumptions need merely a ‘swift and minor’ change in the law. Are our Magna Carta liberties to be so swiftly and so triflingly abandoned?

As Herb Stein said, if something cannot go on forever then it won’t

It’s the Daily Mail that brings us the news that property prices have been rising by 8.6% a year for many decades now. This is of course a nominal number, not a post-inflation one, but projecting it outwards we see that there’s going to be something of a problem in the future:

Children born today looking to buy their first home in 2048 will be required to pay a staggering £3.4million, according to new research.

The remarkable figure was revealed in a study showing how decades of property value rises will affect a baby born today should the price increases continue on their currently trajectory.

The study was based on average annual increases of 8.6 per cent a year since 1954 and then uses this to pinpoint a cost for those buying their first home at the average age of 35.

Obviously, unless there’s rather more inflation than we currently think is going to happen, that’s not going to happen. Herb Stein will be right, something will happen to make this not happen.

But what will happen is the interesting bit. We hope that the solution will be a change in the way we plan housing in this country. For it’s worth noting that this house price inflation really only started as the effects of the 1947 Town and Country Planning Act started to bite. In effect the government said that no one should build houses where people would like to go and live.

No, really, the 1930s were a time of an almost laissez faire attitude to who could build what where. And where people wanted to be able to buy should not be a surprise, they wanted to live in the countryside surrounding the towns and cities. That’s how towns and cities had grown in England for centuries. We ended up with those ribbon developments across the South East, suburban semis along the major roads, little estates added to villages and towns within reasonable distance of London.

That’s what people actually wanted, something we can see from the way people flocked to purchase these speculatively built homes. So what did the government do? Banned building what people actually wanted to live in. For of course we can’t let the ghastly proles actually enjoy their lives, can we?

The solution to housing becoming too expensive is of course to reverse course on what it is that makes housing so expensive. Allow people to build houses where people actually want to live: in short abolish the Town and Country Planning Acts.

We’ll get there, of course we will, for Stein was and is right. The only question is how long will the Nimby’s be able to frustrate the desires of their fellow citizens?

So, just what is this economics stuff good for?

Mark Wadsworth asks us an interesting question:

Reading this and this got me thinking.

If we think that we know all this stuff, the temptation - on the part of prodnoses – is to use it to interfere.

Alternatively we could think of economics as a discipline that tells us why we need to tell those prodnoses to bugger off.?  That is its best purpose.  Telling people why they should NOT do stuff.

Is economics best use as a negative or positive thing?

Discuss and inform me.

The answer comes from Ben Bernanke:

Economics is a highly sophisticated field of thought that is superb at explaining to policymakers precisely why the choices they made in the past were wrong. About the future, not so much. However, careful economic analysis does have one important benefit, which is that it can help kill ideas that are completely logically inconsistent or wildly at variance with the data. This insight covers at least 90 percent of proposed economic policies.

Yes, sometimes we can propose sensible things as a result of having consulted the economic runes. But the real value is that 90% of the time we can tell damn fools that their damn fool plans are damned foolish.

Nationalisation, rent controls, price controls of all kinds, trade barriers, infant industry protection….there’s a long list of things that people propose again and again, even if vanquished they’ll pop up a generation later. The value of economics is that not only can we point out that they’re damned foolish but even why they’re damned foolish.