When law is above the people

referring not as many people do to a policeman, or a taxi-driver even,

but to a journalist.

The problem, as the speaker perceived it, was that every time that he

wanted to make a pronouncement ex cathedra, or at least from the bench,

there was no-one there with a trilby hat and a battered notebook to make

sure the words went outwith the four walls. So all his ''There's too

much of this going on'' and ''Let one thing be clearly understood at the

outset'' were but as sweetness wasted on the desert air.

Actually, it seems to me that a good lot of law does get into the

papers: just have a look in today's Herald for example and see what

would be left without the assistance of the criminal classes. The fact

remains, however, that there is now so much law about that even lawyers

do not know most of it. Questions like, How long have you got to send in

your income tax return? Why can't you distil your own whisky? and, Can a

girl of 14 make a valid will? may be easy for some people, perhaps, but

not for many.

Partly the situation has arisen because of the amount of legislation

put through by a modern Parliament: our common law, that is to say,

broadly, what is derived from custom as mediated through judicial

decisions, becomes less important with every day (and Act) that passes.

And a good thing too you might think; substantive rules of law which

have their basis in such ideas as that a wife and children are

effectively the property of their husband and father are hopelessly out

of tune with our times.

On the other hand, it cannot be a good thing for people to live in a

rule-based society when they don't know what the rules are.

To say that ignorance of the law is no excuse was all very well in the

days when all that you had to do to be in the clear was to be reasonably

familiar with the provisions of the Book of Leviticus and the priorities

of the local magistrates, but it seems a bit far fetched in days when

the new laws for the year 1993 (52 new public Acts) run to thousands of

pages and the Court of Session reports are still years in arrears.

Nowadays we might be more realistic if we were to follow the example

of one recent South African case and treat a mistake about the law,

which does not provide a relevant defence to a criminal charge, as a

mistake about a question of fact, which does.

One of the difficulties caused by all this is that it is almost

impossible to get any proper debate going on law reform. The only people

who can claim to be well informed are pressure groups, and they are not

exactly impartial participants.

For example, if our criminal law is not working as well as it should,

what is to be done? Change the law, says one group. Do away with the

right to silence (which is abused by professional criminals and

terrorists), let the jury know about the previous convictions, deny

Legal Aid unless a plausible defence is to be put forward, and in

general stack things against the accused.

It may be thought surprising that this group does not suggest the

abolition of the presumption of innocence, on the basis that it is both

illogical and offensive to start a trial on the footing that the police

have got the wrong man in the dock.

No, no the law is fine, says the next pressure group: what we need are

more and better prosecutors: it is absurd to see hours of expensive

police work going down the drain because some hard-pressed fiscal has

not had time to plan a prosecution properly.

And then we come to punishment. More prisons, say some: they may not

do any good but at least criminals are not out thieving if they are in

their cells. And if 90% of house-breakings are unsolved, it is

reasonable to assume that a large proportion of them are being done,

undetected, by people who have received non-custodial sentences in the

community for something similar.

More social workers, say others: custody is expensive and not much

more than a university of crime, let's have some heavyweight social work

input.

More jobs, say others: crime is a direct consequence of poverty (in

most cases: but see Robert Maxwell: well actually if the truth be told

he was really worse off than anyone could ever hope to be).

Fewer lawyers: say others: to provide a free defence for people who,

if the worst comes to the worst, are not likely to get more than a fine

anyway is illogical: save Legal Aid for cases where there is a prospect

of custody at the end and put the money saved to better use elsewhere in

the criminal justice system, eg more prosecutors, social workers, police

officers on the beat, victim support, more journalists in court so that

what happens there is more fully reported. Why spend state money on the

least deserving?

Well that is possibly enough about what the pressure groups have to

say. What I am more concerned with is the situation in which ignorance

of the law means that the only people with much say as to what really

goes on are those professionally involved.

For example, I wonder if it is generally known just how many crimes

which might be proved in court never get that far, since decisions are

taken, both by police officers and by prosecutors, that in the

circumstances the matter need go no further. A society in which people

do not know why they are not being prosecuted for breaking laws which

they didn't know existed in the first place is, I think, Kafkaesque.