Idiot ideas at Comment is Free

There are situations that come along where the law proves itself to be wholly perverse. This is clearly one of them.

If the courts are not willing or able to take a stand, Parliament needs to immediately intervene with laws that apply retrospectively so as to clear this woman\’s criminal record.

Dear God no.

For if they can change the law to make us not guilty retrospectively then they can change the laws to make us guilty retrospectively.

And a much better piece on the case is here. A Royal Pardon might well be the solution.

9 comments on “Idiot ideas at Comment is Free

  1. I’m afraid I fail to see why this case should merit a Pardon either. If we consistently seek to excuse the bad choices people make, we’ll just have more and more of them, won’t we?

  2. Oh gawd! If you’re going to start annotating idiot ideas at CiF, you’ll be needing a whole lot more server room. Possibly infinite…..

  3. If the law is amended to make what was once criminal no longer criminal and that is done because the legislators regard the previous law as being morally wrong, then the law should retrospectively reverse the past convictions under the overturned law.

    That doesn’t allow to retrospectively make things illegal that weren’t at the time.

    It also doesn’t apply in this case – pardons are for “hard cases make bad law” cases so you don’t have to amend the law to create exceptions.

    But, for example, criminal convictions for consenting gay sex with adults (before the 1967 Sexual Offences Act) should be stricken from the record. That’s a case where the whole premise of the law they were convicted under was morally wrong.

    This law – whether it be perjury or perverting the course of justice – is perfectly reasonably conceived, but was applied overly harshly to an individual in difficult circumstances; a pardon might well be appropriate under the circumstances.

  4. Richard Gadsden – “If the law is amended to make what was once criminal no longer criminal and that is done because the legislators regard the previous law as being morally wrong, then the law should retrospectively reverse the past convictions under the overturned law.”

    You state this as if it was a fact. May I at least ask you to explain why you think it is true? Why should the law be retrospectively changed?

    “That doesn’t allow to retrospectively make things illegal that weren’t at the time.”

    Of course it does. If you insist that the past has to conform to present day values, you must be consistent and insist that it works to make things illegal that were legal as well as legal that which was illegal.

    “But, for example, criminal convictions for consenting gay sex with adults (before the 1967 Sexual Offences Act) should be stricken from the record. That’s a case where the whole premise of the law they were convicted under was morally wrong.”

    Why? Whether or not you think the law is morally wrong, the fact is these people not only broke the law, they knowingly broke the law. The crime is not merely in what they did, but in the context of what they did. You may think that Gay sex is fine and should be legal, but that does not mean they did not know it was against the law and deliberately broke that law. Which is a criminal state of mind that ought to be punished.

    “This law – whether it be perjury or perverting the course of justice – is perfectly reasonably conceived, but was applied overly harshly to an individual in difficult circumstances; a pardon might well be appropriate under the circumstances.”

    Actually the mistake is to apply it to marital rape. That is not to say marital rape does not occur, but naturally in the course of even the worst relationship, everyone is going to be very emotional and confused. So it is likely that some women will be persuaded that their husband has changed, he didn’t mean it, he will do better next time, and so retract a signed statement. Which means these court cases will often be messy and complex. It would have been simpler to withdraw from the business of adjudicating between a husband and wife unless there was a clear indication that consent had been withdrawn – a separation for instance.

    And in passing, Australia seems to be leading the world in bad law. They have convicted an elderly man for raping his wife retrospectively. He was convicted for a martial rape that took place in the 1960s before marital rape was a crime. His conviction has been held up on Appeal as well. So this is not idle speculation. A Common Law jurisdiction has actually applied the marital rape law to acts that took place when marital rape was not a crime.

  5. SMFS,

    Whether or not you think the law is morally wrong, the fact is these people not only broke the law, they knowingly broke the law. The crime is not merely in what they did, but in the context of what they did. You may think that Gay sex is fine and should be legal, but that does not mean they did not know it was against the law and deliberately broke that law. Which is a criminal state of mind that ought to be punished.

    Please, please, please do not ever get into a position of any power.

    We should not unthinkingly apply the law but instead try to reach’ just’ outcomes.

    If something should not have been a crime in the first place, e.g. gay sex, then it is not ‘just’ that the person continues to have a criminal record for it. A distinction should be drawn between ‘offences’ that are mala prohibita (wrong because they are prohibited) and those that are mala in se (wrong in themselves). Gay sex was merely malum prohibitum.

  6. What’s the matter with changing the law retrospectively? India, pissed off with Vodafone, are going to hack back on capital gains made from 1962. It’s a perfect way to raise huge sums, no one will complain because the victims will all be non-dom multinationals that can clearly afford it. It’ll be bound to generate a tidal wave of inward investment, as the world will realise how fair and forward looking India has become.

  7. ukliberty – “Please, please, please do not ever get into a position of any power.”

    Sorry, but I insist on the letter of the law while you think that it ought to be changed, even retrospectively, according to the whims of those in power and *I* am the one that is a threat to civil liberties? Great.

    “We should not unthinkingly apply the law but instead try to reach’ just’ outcomes.”

    We could have an argument about that. I will just point out that the German Courts took this approach while the Italian Courts stuck to the letter of the law during their Fascist periods. I am not sure the Germans got the better deal. You and Ritchie might think you’re right, but that does not mean you are. The law ought to be what it says, not what those in power think is the right outcome.

    “If something should not have been a crime in the first place, e.g. gay sex”

    If. This is where you go wrong. By what possible set of outcomes can you claim the democratically expressed will of the British people at the time was invalid?

    “then it is not ‘just’ that the person continues to have a criminal record for it.”

    Except it is when the idea of what is just has changed. At the time it was seen as just that someone was charged for Gay offenses if they really went out of their way to get charged for Gay offenses. Now it isn’t. Now we do not convict people for having Gay sex. Then we did. It is not our job to retrospectively correct the historical record, but to let it stand as a memorial of what people at that time thought. We do not have thousands of little Winston Smiths labouring away to produce “definitive versions” of the past and nor should we.

    “A distinction should be drawn between ‘offences’ that are mala prohibita (wrong because they are prohibited) and those that are mala in se (wrong in themselves). Gay sex was merely malum prohibitum.”

    Says you. That is an interesting opinion. It may even be a correct opinion. It was not the opinion of the people of Britain at the time. It may not even be the opinion of the people of Britain now. It almost certainly will not be the opinion of the people of Britain in the future. So be a little bit careful of what you wish for or one day you may be charged for violating a law that does not exist yet.

    And you also ignore the fact that people were not just punished for having Gay sex. They were punished for knowingly violating the law by having Gay sex. That knowing violation is still a criminal state of mind and is still wrong.

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  9. SFMS,

    Sorry, but I insist on the letter of the law while you think that it ought to be changed, even retrospectively, according to the whims of those in power

    um no, not according to whims, but to just outcomes, as I said.

    By what possible set of outcomes can you claim the democratically expressed will of the British people at the time was invalid?

    Because the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. (JSM).

    Because “democratically expressed will” isn’t a particularly accurate reflection of what the people actually think.

    And because the number of people thinking something isn’t a good indicator of its ‘rightness’.

    It may even be a correct opinion. It was not the opinion of the people of Britain at the time. It may not even be the opinion of the people of Britain now. It almost certainly will not be the opinion of the people of Britain in the future.

    It’s not about “opinion”, as should be obvious, it’s about objective wrongs, if that JSM quote above is taken as an axiom.

    If two consenting adults have sex behind closed doors it’s no-one else’s business, and it is objectively wrong to interfere with them or punish them for it.

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