New Labour, New Britain: Taking liberties with our liberties

Tony Blair has not heeded the advice of Tacitus. The great historian warned that "the more numerous the laws, the more corrupt the state." In the past decade, the Labour Government has pumped out 3,000 new laws - one for every day in power. Impersonating a traffic warden; selling a grey squirrel; detonating a nuclear bomb - these have all, comfortingly, become illegal.

More laws mean more transgressions. More transgressions mean more people criminalised by the state. As a result, our prisons are bursting. In April 2007, a record 80,000 Britons are residing at Her Majesty's pleasure.

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If Labour's crime spree has been incontinent, its impact on defendants' rights, and the presumption of innocence - held sacred in this country since the Magna Carta - has been positively cavalier.

With the creation of Anti-Social Behaviour Orders (Asbos) hearsay evidence has become more integral to the judicial system. An Asbo can be handed out on the say-so of neighbour, or a local police officer, without recourse to a judge and jury. The penalty for breaking an Asbo is five years in prison. Effectively, hearsay evidence can help send someone to jail.

Tony Blair argues for Asbos on the basis of victims' rights - that those living in communities blighted by anti-social behaviour have the right to live in peace. "When we talk of civil liberties, what about theirs, the law-abiding people; the ones who treat others with courtesy and good manners and expect the same back?" he said, last year. "Don't theirs count for anything?"

The Prime Minister's complaint is part of a wider government trend, one he outlined at a speech in Bristol last year, of "rebalancing the criminal justice system in favour of the victim". But the victim is a relatively new character in the criminal justice system.

In Britain, criminal trials are fought between two parties: the state, and a defendant. In this system, the victim is an onlooker, and often a key witness, but, crucially, not a party requiring representation. The point of a trial is to prove, beyond reasonable doubt, the veracity of the state's complaint against the defendant. It has never been to provide catharsis for a wronged "victim".

Under Labour, the rules have changed. In addition to the existing practice of submitting written representations outlining the effect of a crime on the victim, we have seen the introduction of oral Victim Impact Statements. These statements are read out, by the prosecution, after a jury has made its decision, but before the defendant is sentenced. They can have a powerful effect on the sentencing. Indeed, no judge who heard Adele Eastman's heart-breaking Victim Impact Statement at the trial of her murdered fiancé, Tom ap Rhys Price, could have remained unmoved.

But Ms Eastman's plangent statement was the best argument for their abolition. What if there had had no one to speak for Mr Rhys Price? What if he had been a loner, a tramp, an elderly person with no family? Would this life have meant fewer years in prison for his murderers? Sentencing, once judged on the gravity of the offence, may now be assessed on the gravity of the offence's emotional residue.

Defendants are feeling the pinch at the lower end of the judicial system, too. Under the Carter reforms, the rules for who receives Legal Aid have been drastically altered. Previously, Legal Aid - the free provision of legal services - was granted to anyone thought to "merit" it. Under the Carter reforms, state assistance is granted only to those who pass a means test.

Means-testing is sensible in theory; Legal Aid is expensive, and should be available only to those who genuinely need it. But the Carter reforms are widely disliked in the legal professions because they are complicated, inflexible, and have alienated some sections of society most in need of legal services.

Under Carter, for instance, a single parent working full-time on the minimum wage, and supporting a child, is not elegible for Legal Aid in criminal proceedings at the magistrates' court. Is this not the person for whom Legal Aid was designed?

In short, Carter means that fewer people have access to free justice; fewer solicitors are inclined to take on Legal Aid work - and the numbers of defendants pleading "guilty" to crimes they might otherwise have fought has risen. If the Government wishes to solve the prisons crisis, this is an area it may care to address.

What do these changes in the criminal justice system amount to? The individual instances listed above are necessarily, only a small part of a wider picture. Tony Blair claims to have yielded great successes with his reforms. "Crime", he said last month, "has fallen 35 per cent since 1997... Offences brought to justice increased by 37 per cent from March 2002 to September 2006."

These statistics may be true. We may be living in a golden age of law and order. But what is the cost to our judicial system? What are we being told when a government abolishes jury trials in complex fraud cases? Where the law of double jeopardy - the right not to be tried twice for the same crime - has been abolished? Where control orders limit the liberty of those suspected of involvement in terrorism, yet who have no chance even to see the charges against them?

The Government has encouraged us to see these small erosions of our liberties as necessary measures in an extraordinary time. But as Isaiah Berlin, the British philosopher who died in the same year as Labour came to power, once wrote: "Liberty is liberty." It cannot be divided, or it is lost.