The previous post deals with the issue of cannabis legalisation policy approached as broadly speaking a matter of weighing costs and benefits. Here I'll make some first steps in discussing the relevance and impact of moral principles.
(My comments about Hitchens's position are inevitably somewhat sketchy; one could go on for thousands of words attempting to cover every fine gradation and distinction in the positions it is possible to take. An advantage of adversarial debate is at least that I can rely instead on Hitchens to clarify which positions he wishes to appeal to.)
A successful appeal to moral principle in this debate should establish two things: that the principle is valid, and that it has certain consequences so far as the criminal law is concerned. That is not, however, to say that either of these things must be established to any particular standard or by any particular method: perhaps the most that can be said here is that good reasons must be supplied. If they are not, the argument won't go through. And if a (supposed) moral principle can be shown to be invalid or legally inconsequential, then arguments invoking it can be rejected outright.
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Friday, 22 July 2011
Tuesday, 19 July 2011
What is To Be Done?
The present debate is about the legal status of cannabis. The topic is not itself whether smoking cannabis is an especially good idea, or the kind of thing everyone should do, or harmful, or beneficial. None of these will decide the question of legalisation and prohibition, certainly not on their own.
I do not believe any harmful effects to the user that might plausibly be discovered would be a sufficient justification for bringing to bear the power of the state to criminalise the possession and use of cannabis. Nonetheless, for those who disagree or whose attitude to cannabis has otherwise been shaped by highly exaggerated warnings, I've explained my reasons for thinking that the mental health risks from taking cannabis are minimal. I don't propose to go into those any further here.
The first issue I'll deal with is the burden of proof - in the first place, it seems clear to me that any exertion of state penal power over the individual requires justification. Hitchens advocates instituting a much harsher punitive regime than the present one, which already imprisons, fines, and brands as criminal a large number of users. One might suggest that the status quo is privileged, that any departure requires positive justification, but that need not concern us since neither Hitchens nor I consider the current position acceptable.
The 'precautionary principle' - that where it seems possible that a course of action may cause harm, the course should not be adopted - is of little help here - or for that matter in general - since unless unfounded fears are allowed to prevent any change, the 'possible' harms must in fact be probable to a sufficient degree, and since there will be pros and cons on both sides, the question rapidly becomes - which is to be preferred? The harmful effects of the present regime, and of the much harsher regime Hitchens advocates, are clear - imprisonment is a major harm in itself to individuals and those close to them, and while relatively few may be prosecuted, many more take furtive and burdensome steps to avoid it - which accounts on large part for the relatively low rate of conviction. And those who do not share the conviction that cannabis is an innocent herb may not appreciate the resentment, and perception of victimisation that this involves.
I've previously mentioned the harmful effects of the lack of regulation which comes with less-than-completely effective prohibition. These would occur even if possession and use were to be entirely decriminalised. Criminal gangs and unscrupulous dealers will sell to any age group and freely adulterate a product which in any case cannot be checked for strength or specific constituents (for example, one might wish to ensure that one's cannabis contained a relatively high proportion of cannabidiol).
I do not believe any harmful effects to the user that might plausibly be discovered would be a sufficient justification for bringing to bear the power of the state to criminalise the possession and use of cannabis. Nonetheless, for those who disagree or whose attitude to cannabis has otherwise been shaped by highly exaggerated warnings, I've explained my reasons for thinking that the mental health risks from taking cannabis are minimal. I don't propose to go into those any further here.
The first issue I'll deal with is the burden of proof - in the first place, it seems clear to me that any exertion of state penal power over the individual requires justification. Hitchens advocates instituting a much harsher punitive regime than the present one, which already imprisons, fines, and brands as criminal a large number of users. One might suggest that the status quo is privileged, that any departure requires positive justification, but that need not concern us since neither Hitchens nor I consider the current position acceptable.
The 'precautionary principle' - that where it seems possible that a course of action may cause harm, the course should not be adopted - is of little help here - or for that matter in general - since unless unfounded fears are allowed to prevent any change, the 'possible' harms must in fact be probable to a sufficient degree, and since there will be pros and cons on both sides, the question rapidly becomes - which is to be preferred? The harmful effects of the present regime, and of the much harsher regime Hitchens advocates, are clear - imprisonment is a major harm in itself to individuals and those close to them, and while relatively few may be prosecuted, many more take furtive and burdensome steps to avoid it - which accounts on large part for the relatively low rate of conviction. And those who do not share the conviction that cannabis is an innocent herb may not appreciate the resentment, and perception of victimisation that this involves.
I've previously mentioned the harmful effects of the lack of regulation which comes with less-than-completely effective prohibition. These would occur even if possession and use were to be entirely decriminalised. Criminal gangs and unscrupulous dealers will sell to any age group and freely adulterate a product which in any case cannot be checked for strength or specific constituents (for example, one might wish to ensure that one's cannabis contained a relatively high proportion of cannabidiol).
Wednesday, 29 June 2011
R. v Haddock (Is it a Free Country?)
The Australian:
In December last year, after WikiLeaks's publication of a large volume of leaked US diplomatic cables, Australia's Prime Minister agreed with US leaders that WikiLeaks founder, Australian citizen Julian Assange, must have broken the law. This proved to be a premature over-reaction. Not only was the law Assange had broken not identified, but the Australian Federal Police could not identify him as having broken any law.
----ooOoo----
REX v. HADDOCK
IS IT A FREE COUNTRY?
REX v. HADDOCK
IS IT A FREE COUNTRY?
THE Court of Criminal Appeal considered to-day an important case involving the rights and liberties of the subject, if any.
Lord Light, L.C.J.: This is in substance an appeal by an appellant appealing in statu quo against a decision of the West London Half-Sessions, confirming a conviction by the magistrates of South Hammersmith sitting in Petty Court some four or five years ago. The ancillary proceedings have included two hearings in sessu and an appeal rampant on the case, as a result of which the record was ordered to be torn up and the evidence reprinted backwards ad legem. With these transactions, however, the Court need not concern itself, except to observe that, as for our learned brother Mumble, whose judgments we have read with diligence and something approaching to nausea, it were better that a millstone should be hanged round his neck and he be cast into the uttermost depths of the sea.
The present issue is one of comparative simplicity. That is to say, the facts of the case are intelligible to the least-instructed layman, and the only persons utterly at sea are those connected with the law. But factum clarum, jus nebulosum, or, 'the clearer the facts the more dubious the law'. What the appellant did in fact is simple and manifest, but what offence, if any, he has committed in law is a question of the gravest difficulty.
Thursday, 23 June 2011
Tim Wilkinson v Peter Hitchens on Cannabis and the Law - Part 1
These are my opening remarks in a debate on the legal status of recreational cannabis, agreed with Peter Hitchens, who will respond as time permits.
Neither of us is in favour of the status quo. I support full legalisation and regulation; he - I hope this is a fair characterisation - supports harsher penalties and stringent enforcement aimed at near-eradication of recreational cannabis use.
My remarks are intended as a starting point for debate - I've drawn on three of Hitchens's blog posts and addressed a variety of points (his remarks, taken from the specified blog post in each case, are in bold), without pretending to present a comprehensive manifesto for cannabis legalisation.
My starting point is that we should presume that behaviours should be legal, and then ask - are there good reasons to make this behaviour a criminal offence? My answer is no. Ordinary cannabis users derive great enjoyment and – yes – pleasure from their indulgence in the weed. Many report taking it in modest quantities and find that it aids relaxation, enhances their appreciation of food, music, art and sex, and even stimulates creativity. To deny these benefits by more effective prohibition would involve far more oppressive measures, for the sake of preventing abusive overindulgence and the risk of cancer which accompanies smoking (though not as far as I know ingestion or inhalation of vapour). Those risks could be adequately mitigated, or in the case of the cancer risk, properly and – one might hope - honestly publicised, under legalisation and regulation.
Overblown claims about the dangers are rightly seen as ridiculous by those who know anything about it, which makes officialdom look foolish and means that even accurate information is likely to be disregarded. Legal regulated cannabis would be of known strength and free from such very harmful adulterants as wax, petrol, even plastic, which can be found in poor-quality illegal hashish. The current system already exposes users to criminal sanctions and means they must become involved at the margins of the criminal world to get hold of it, with the concomitant aversion to police and contempt for the law.
People need to be treated like adults, rather than infantilised by what some might refer to as the nanny state. Danger may be a reason for regulation, but with few exceptions like weapons, not for criminal sanctions on behaviour which need not be dangerous, and specifically not dangerous to others.
Neither of us is in favour of the status quo. I support full legalisation and regulation; he - I hope this is a fair characterisation - supports harsher penalties and stringent enforcement aimed at near-eradication of recreational cannabis use.
My remarks are intended as a starting point for debate - I've drawn on three of Hitchens's blog posts and addressed a variety of points (his remarks, taken from the specified blog post in each case, are in bold), without pretending to present a comprehensive manifesto for cannabis legalisation.
My starting point is that we should presume that behaviours should be legal, and then ask - are there good reasons to make this behaviour a criminal offence? My answer is no. Ordinary cannabis users derive great enjoyment and – yes – pleasure from their indulgence in the weed. Many report taking it in modest quantities and find that it aids relaxation, enhances their appreciation of food, music, art and sex, and even stimulates creativity. To deny these benefits by more effective prohibition would involve far more oppressive measures, for the sake of preventing abusive overindulgence and the risk of cancer which accompanies smoking (though not as far as I know ingestion or inhalation of vapour). Those risks could be adequately mitigated, or in the case of the cancer risk, properly and – one might hope - honestly publicised, under legalisation and regulation.
Overblown claims about the dangers are rightly seen as ridiculous by those who know anything about it, which makes officialdom look foolish and means that even accurate information is likely to be disregarded. Legal regulated cannabis would be of known strength and free from such very harmful adulterants as wax, petrol, even plastic, which can be found in poor-quality illegal hashish. The current system already exposes users to criminal sanctions and means they must become involved at the margins of the criminal world to get hold of it, with the concomitant aversion to police and contempt for the law.
People need to be treated like adults, rather than infantilised by what some might refer to as the nanny state. Danger may be a reason for regulation, but with few exceptions like weapons, not for criminal sanctions on behaviour which need not be dangerous, and specifically not dangerous to others.
Sunday, 29 May 2011
These Are Secrecy, Not Privacy Laws.
(+ Aaronovitch on sexual frugality)
The big problem with recent developments in common law 'privacy' protection is that they are happening under the rubric of the tort of breach of confidence. They are thus highly likely to be used by corporations to press even further the absurd degree of 'commercial confidentiality' and even 'taxpayer confidentiality' that they already enjoy, and which helps to obscure the workings of what is now in effect the ruling class.
Once precedents and principles have been set by personal privacy cases, they are likely to be used by corporate lawyers. Given the huge resources at the disposal of big corporations, they can afford to wait for favourable cases, then press their advantage to the full. An example of one such principle is the idea that confidentiality can be owed to someone you've never had anything to do with before, rather than resting on a duty that emerges from some particular relationship.
Talking of 'privacy' law as protecting corporations and other impersonal entities is of course quite out of place. Describing laws about what may be published, however the information was obtained, as being about privacy rather than secrecy is somewhat strained too. I tend to think of privacy as being concerned with such issues as freedom from intrusive surveillance, spying and indeed phone hacking, which is a criminal matter apart from anything else. I'm not sure I've made out an utterly clear distinction here, but I think there is one to be made which is of some importance.
The recent civil actions that have carved out the new doctrines have tended to rely not solely on the tort of confidentiality as extended in reponse to the HRA and Convention, but also on such actual invasions of privacy. This tends to muddy the waters, since the 'anti-invasive' conception of privacy undoubtedly has an influence on what is seen by the judge as the desirable outcome, but given the prior state of the common law and an incremental approach to developing it, the legal doctrines enunciated in their decisions tend to fall on the secrecy/confidentiality side of the distinction.
Once precedents and principles have been set by personal privacy cases, they are likely to be used by corporate lawyers. Given the huge resources at the disposal of big corporations, they can afford to wait for favourable cases, then press their advantage to the full. An example of one such principle is the idea that confidentiality can be owed to someone you've never had anything to do with before, rather than resting on a duty that emerges from some particular relationship.
Talking of 'privacy' law as protecting corporations and other impersonal entities is of course quite out of place. Describing laws about what may be published, however the information was obtained, as being about privacy rather than secrecy is somewhat strained too. I tend to think of privacy as being concerned with such issues as freedom from intrusive surveillance, spying and indeed phone hacking, which is a criminal matter apart from anything else. I'm not sure I've made out an utterly clear distinction here, but I think there is one to be made which is of some importance.
The recent civil actions that have carved out the new doctrines have tended to rely not solely on the tort of confidentiality as extended in reponse to the HRA and Convention, but also on such actual invasions of privacy. This tends to muddy the waters, since the 'anti-invasive' conception of privacy undoubtedly has an influence on what is seen by the judge as the desirable outcome, but given the prior state of the common law and an incremental approach to developing it, the legal doctrines enunciated in their decisions tend to fall on the secrecy/confidentiality side of the distinction.
Wednesday, 25 July 2007
No charges over Cash for Honours
The CPS seem to have made some errors - that's the charitable interpretation at least.
As I understand the legal situation, the decision not to proceed - based it seems largely on the opinion of David Perry QC - is an executive decision not made under royal prerogative, and as such is open to judicial review on grounds of, among other things, irrationality. Let's hope someone with expertise in these things will make an application. Although a well-known silk has advised me that it's not very likely to succeed, it'd be intereting to hear all the evidence - just as it would be if Levy were to sue for wrongful arrest (as if!)
CPS decision: "Cash For Honours" case - explanatory document
Here are 5 deficiencies in the published explanation:
1. The fact that no-one had complained of receiving an offer is incorrectly taken as ruling out the possibility of charges based on such an offer (pa 24). This position is even more absurd given that anyone accepting such an offer is extremely unlikely to report it to the police.
2. The possibility of an agreement is, by contrast, considered (pa 24) - even though any agreement would almost certainly involve an offer, and an agreement is therefore less likely to have occurred, and in every non-bizarre case more difficult to establish, than a mere offer.
3. A substantive requirement that such an offer must be 'unambiguous' is incorrectly introduced out of nowhere (pa 23). This is a red herring. Either there was such an offer or there wasn't. It might be 'ambiguous' but still in the circumstances clearly an offer of the kind prohibited. Ambiguity might even be evidence of deliberate subterfuge and thereby dishonesty.
4. It was stated that there was strong evidence of 'proper reasons for the inclusion of all those whose names appeared on the 2005 working peers list' and that 'each was a credible candidate for a peerage'. (pa 29) This is either untrue or misleading, given that the Appointments Commission disagreed in the cases of three of the four donors (but none of the other, non-donor, appointees), ruling them clearly unsuitable even before it knew about the loans. See BBC NEWS | Politics | The Lords suitability question
5. The CPSs paraphrases the relevant Sale of Honours Act provisions as requiring that the loans, to be illegal, would have to be 'an inducement or reward for procuring, or assisting or endeavouring to procure, the grant of a dignity or title of honour' (pa 16). This ignores the catch-all provision: "or otherwise in connection with [the grant of a dignity or title of honour to any person]". The catch-all alone makes a total nonsense of the analysis offered by the CPS.
Another dubious decision has been reported: "the investigation effectively stalled after a diary kept by Sir Christopher Evans, allegedly detailing a series of meetings with Lord Levy, Tony Blair's chief fundraiser, was ruled inadmissible by lawyers considering the case". See Four more names emerge in cash for honours case | Special Reports | Guardian Unlimited Politics.
There is no need to rely on the diary as evidence. Evans could simply be subpoenaed and examined on the matter. Furthermore, as I understand the matter - though I am no expert - the diary would be admissable as evidence of his unreliability should he (rather improbably I would have thought - ) choose to deny that the events it describes took place.
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