Simon Carr: The law today sides with the state over the citizen

The state has started to act like a person. And not a particularly nice person
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The Independent Online

Having very powerful - sometimes disabling - conservative instincts, I was put into a terrible quandary by a passage in a book of medieval history. In the 14th century, it said, "odious comparisons" were prohibited at Oxford University. Outlawed. Banned. And banned, it seems, in much the same way as racial insensitivity is now, and for much the same reasons.

Regional dialects were so strong in those days before Chancery English that we English (or Kentishmen, Mercians, Northumbrians, Welshmen, Danelaw-descendants) were unintelligible to each other. But because everyone understood the words "Nordic hogges toord", fighting in Broad Street was too frequent.

Violent abuse may have been a longtime offence against public order, but we are a subtle and annoying people and can always find innocent ways of reducing our opponents to tears of rage. Thus, "Your Welsh rabbit is nothing more than cheese on toast made from black-faced ewes' milk!" was prohibited by this statute. Criminalising certain forms of speech was how we went about our nation-building.

Maybe that's what's going on now, as we build another nation out of motley ethnic elements. Children bully each other to misery with their noxious taunts and they end up in court on criminal charges. Whatever we think now, in a couple of hundred years we'll look back and say, "Quite right, too."

So, that "odious comparisons" statute was the ancestor of political correctness (conservatives boo) but dignified by ancient usage (conservatives cheer).

Those late medieval years were, also like now, a time of intricate regulation - the tiniest civil rights were fiercely preserved. As Education Secretary, Charles Clarke described medieval historians as serving only an "ornamental" purpose, but they provide precedent for an astonishingly active judiciary.

In those days, depending on your status in society, your dog was provided with rights to scavenge in certain areas on certain days. Dogs from inferior ranks were prohibited even from going out at certain times. British liberties have been fought through the courts for hundreds of years now, we ought to be used to it, and conservatives ought to have accommodated themselves to it.

However, we've got something different going now. The state in its current incarnation is never slow in taking things a step further. Now that the Government has become used to adjudicating and regulating our intimate relations, it has looked to see what else it might do through the courts. And the answer it has come up with amounts to more or less everything.

Now we find the criminal justice system dealing with small matters of administrative inconvenience. The definition of "crime" has expanded to quite extraordinary limits.

Under EC directive 92/58, it will be a criminal offence to display any sign reading "Fire Exit", unless the design also carries a "Europictogram" of a running man. Is that what we understand by a crime? Goodness knows what the penalty is. It may well be a jail term. Certainly, for obstructing an inspector conducting an inspection of a nursery you can be put away for two years.

Denying access to a nursery inspector doubtless causes distress, affront and hurt feelings to the sacred public servant. But should that really be punished by two years in jail?

The state has started to act like a person. And not a particularly nice person. It devoutly believes itself to be benevolent, but if interrupted in its many missions of mercy, it reacts with vicious irritability (up to and including invading Middle Eastern countries).

No, this new theme in the criminal justice system is very new, very modern and (conservatives can relax) very undesirable. Those old medieval provisions for scavenging dogs - they codified existing rights for individuals, citizens and canines. But the new sort of legislation is codifying new rights for the state.

They seem to be punishing people for some sort of para-judicial crime. The new sort of crime is not committing an offence against other citizens but committing an offence against official instructions. To put it another way, disobedience to the wishes of the state has become a greater crime than a criminal offence.

Thus: your neighbours are offended by some eccentricity in your behaviour (habitual sarcasm, perhaps). They apply for an antisocial behaviour order and get it (very few applications are turned down). If you disobey this order and express yourself sarcastically, you can go to jail. Not for disrespect to your neighbours but for disrespect to the magistrate, or to the judiciary, or to Parliament.

The three-strikes rule means that you can go to jail for inordinate length for a third, inconsequential, misdemeanor.

Because people ignored previous laws against stealing mobile phones, the maximum penalty has been increased to five years in jail. To get five years in jail for stealing the monetary equivalent of a working man's daily wage? That can't be justified by the offence; but only by the ancient crime of lese-majesty, of deliberately flouting the authority of the sovereign. That's a medieval sort of punishment, isn't it? And not in a good way.