Posted by Sean Gabb
|London Local Authorities Act 2007 (c. ii)|
|PART 5 Miscellaneous|
he shall be guilty of an offence.
until the council issues a certificate under subsection (2) above or the application is withdrawn.
Posted by Sean Gabb
|London Local Authorities Act 2007 (c. ii)|
|PART 5 Miscellaneous|
he shall be guilty of an offence.
until the council issues a certificate under subsection (2) above or the application is withdrawn.
By way of intro, der Überblogmeister writes:-
For the benefit of overseas readers, English people have been in the habit of being able to trade in – and buy/sell in (legally) “imperial” measures for as long as these have been commonly understood, which in some cases such as “a Pound” (weight) is about fourteen centuries. These measures were indeed widely used in Europe and other places in the Known World, until the advent of the Metric System, statutorily enforced throughout conquered Europe by Napoleon. Just doing that thing on its own did not make Napoleon a fascist pig, but a fascist pig is what he was all the same, for integrated reasons.
Indeed, it has ALWAYS been legal in the UK to buy/sell/manufacture ot trade in metric measures of any kind. Scientists almost universally use the MKS (and understand the cgs) systems, both of which are metric, and this is logical as it makes the use of Standard Form Numbers much easier, in conjunction with any metric unit.
The ZanuLaborg British Stalinist fascist political parties, including the Tory party, here have all colluded in the forced metrication of all aspects of British life and thought, whether this was asked for, beneficial, or not.
it is advantageous to be fluent in both the “Imperial” and the Metric systems, but libertarians do not see this as a justifiable area for compulsion or legislation, so long as the standards in each are defines and known.
Here follows a sad story:-
Permanent link at: http://www.seangabb.co.uk/flcomm/flc063.htm
Free Life Commentary,
an independent journal of comment
published on the Internet
Issue Number 63
21st February 2002
The “Metric Martyrs” and the Constitution
On Monday the 18th February 2002, judgment was given in the Court of
Appeal on the “Metric Martyrs” case (Thoburn v Sunderland City Council.)
These were appeals from four men who had in different ways been told by
lower courts that it was no longer legal for them to use the English
system of weights and measures for any purpose of trade.
The grounds of their appeal were that the relevant laws had been made
further to powers contained in the European Communities Act 1972, whereas
it appeared that their right to continued use of the English system had
been protected by the Weights and Measures Act 1985. According to the
doctrine of implied repeal, an earlier Act cannot be used to amend or
repeal a later Act. Instead, where any conflict arises between Acts of
Parliament that cannot be smoothed by judicial interpretation, the later
one always takes precedence: leges posteriores priores contrarias
What made this case so important was that it was brought to clarify the
constitutional status of our membership of the European Union. Either the
Judges could apply the doctrine of implied repeal, in which case, our
membership of the European Union was compromised to whatever degree the
European Communities Act had been repealed, or they could announce that
Parliament was no longer sovereign, and that we were now unambiguously
under the rule of a centralising, Roman Law despotism based outside this
country. In the judgment given last Monday, the four men lost their case.
According to Lord Justice Laws and Mr Justice Crane, the 1972 Act was
protected against implied repeal by the 1985 Act, and the English system
of weights and measures has been legally abolished to the degree stated
in the disputed laws.
Now, looking at the superficial aspects of the case, it is a defeat. As a
conservative, I deplore the legal suppression of weights and measures
which are an integral part of our culture. Whatever its merits considered
purely in themselves-and these are probably not so great as is usually
claimed-the metric system is an alien thing. Its imposition cuts us off
from part of our history, and makes it harder for us to enjoy that
intimate communion with the past that is part of any nation’s strength
and cohesion. As a libertarian, I deplore the imposition of anything. If
greengrocers want to sell bananas by the pound or the kilogramme-or
indeed by the ancient Athenian mina-that is a matter for them and their
customers, not for the authorities. However, if we look beneath the
surface, we can see that the judgment was not so much a defeat as a great
if conditional victory for both conservatives and libertarians. For while
it would not have been politically conceivable for the Judges to strike
down any part of the European Communities Act, they did preserve
parliamentary sovereignty to the extent that a majority of the House of
Commons will be able in due course to repeal that Act by positive
legislation; and that is, let us face reality, how we shall eventually
withdraw from the European Union-not by some clever legalistic trick, but
by full public debate followed by parliamentary repeal. And of equally
great importance for us, when the Judges squared the apparent circle
given to them, they did so by reviving the ancient doctrine of
This is a mediaeval doctrine that last flourished in the rather strange
legal soil of the 17th century. Its most famous statement is in Lord
Chief Justice Coke’s judgment in the case of Dr Bonham (1610). Bonham had
been fined for practising medicine without a licence from the Royal
College of Physicians. The charter under which he was fined had been
confirmed by Act of Parliament. In giving judgment for Bonham, Coke CJ
“And it appears in our books that in many cases the common law will
controul acts of parliament, and sometimes adjudge them to be utterly
void: for when an act of parliament is against common right and reason,
or repugnant, or impossible to be performed, the common law will controul
it, and adjudge such act to be void” (8 Coke’s Reports, 117-18).
By the end of that century, though, the whole notion of a fundamental law
that could be used to judge the validity of Acts of Parliament was in
decline. In the American colonies, the notion retained its hold among the
lawyers, and is preserved in the Constitution and Bill of Rights. But in
this country, the very different notion emerged of the absolute
legislative sovereignty of the Crown in Parliament. Our rulers were
restrained by their sense of right and wrong-or more often by their
caution-in exercising power, but were under no legal restraint so long as
they could rely on Parliament to pass whatever Acts they wanted.
Parliament was sovereign. Its Acts could be interpreted by the courts-and
frequently have been into senses that no Member of Parliament might have
recognised in the division lobbies-but could not be called in question.
The doctrine as a whole was elaborated to its full logical conclusions by
A.V. Dicey in his Law of the Constitution (1885). It was fully accepted
by the courts. “For us an Act of Parliament duly passed by Lords and
Commons and assented to by the King, is supreme, and we are bound to give
effect to its terms” said Lord Dunedin in 1906 (Mortensen v Peters, 8
The only limitation of sovereignty was its protection. It was held that
no Parliament could bind itself. Parliament could do anything, except
preserve its own Acts from repeal. An Act from the time of Henry VII, for
example, states that it cannot be repealed. An early 19th century
annotator of the State Trials refers to this as a void provision. A later
Act would always override an earlier one-and do so regardless of whether
that had been the intention of Parliament. Repeal could be intended or
simply implied. “The Legislature cannot, according to our constitution”
said Lord Justice Maugham, “bind itself as to the form of subsequent
legislation, and it is impossible for Parliament to enact that in a
subsequent statute dealing with the same subject-matter there can be no
implied repeal” (Ellen Street Estates Ltd v Minister of Health  1
King’s Bench Reports , 753. 14.).
Now, suddenly, the notion of fundamental law has been pulled out of the
legal grave in which it had been rotting for three hundred years, and
declared part of the law of our Constitution. In one sense, it was the
only way out of the paradox that the “Metric Martyrs” case had apparently
raised. By announcing that there was a “hierarchy of Acts of Parliament”
- “ordinary” and above them “constitutional”, the Judges were able to
save the European Communities Act from implied repeal. Undoubtedly, they
emphasised, European Union law is supreme in this country-but only to the
extent given by the European Communities Act, which can be repealed
should Parliament explicitly decide to do. Even so, short of explicit
repeal, it is immune from any implied repeal.
But in another sense, the judgment is only an extension of the growing
impatience that Judges have felt for a very long time with the
constraints imposed on them by the doctrine of parliamentary sovereignty.
And, in spite of the status given for the moment to the European
Communities Act, these are constraints that should be regarded with
impatience by everyone who values freedom in this country.
“The sovereignty of the Crown in Parliament” is a nice set of words. The
phrase rolls off the tongue and carries the mind back to earlier ages in
our history. But the phrase no longer describes what is at all a
desirable state of affairs. We are ruled by people who get an almost
sexual thrill from messing up our lives. Because they run the two main
parties, they are able to pack the House of Commons with a combination of
sheep who would vote black white and white black if ordered, and of
weaklings who know that something is wrong, but are controlled by bribes
and blackmail. Every so often, a few decent people get elected. But that
is because the control is not yet perfect; and its main effect, sadly, is
to keep alive in some minds the delusion that parliamentary democracy
still actually exists. The general result is tyranny mitigated by
recollections of a better time.
The Judges have been worried by this for generations. According to Lord
Wright in 1942,
“Parliament is supreme. It can enact extraordinary powers of interfering
with personal liberty. If an Act of Parliament… is alleged to limit or
curtail the liberty of the subject or vest in the executive extraordinary
powers…, the only question is what is the precise extent of the powers
given” (Liversidge v Anderson , Appeal Cases, 106).
Since then, things have grown worse. Bad laws pour out in a continual
stream. A well funded interest group only has to demand, or a media
campaign to start, and the politicians reach for their legislative
hammer. In the 1960s, the insurance companies complained about the level
of awards in civil cases where they were known to stand behind a
defendant; and so the politicians virtually abolished the right to trial
by jury in the civil courts. In 1987, there were complaints when some
defendants in a criminal case pooled their right of peremptory challenge
to secure a more sympathetic jury; and so the politicians abolished that
right. Around the same time, the authorities wanted to raise the
conviction rate or financial crimes; and so the politicians created the
Serious Fraud Office, and gave it the right to compel self-incrimination.
In 1991, a few children were bitten by dogs; and so the politicians
brought in a law that almost everyone now regards as mad. Arguments about
the rule of law drew at best a blank stare, at worst an exultant sneer.
Nor is it just that Parliament is churning out bad laws-though many are
very bad. It is that Parliament is churning out thousands of pages of new
law every year, supplemented by thousands more of statutory instruments.
No one has read or can read all of these. No one is co-ordinating the
process of their manufacture. Quite often, no one knows what the laws are
on an issue from one day to another. Not surprisingly, they frequently
contradict each other. This is what led to the challenge to the
metrication laws. The Weights and Measures Act does contradict the
European Communities Act. No one intended this to happen. No one noticed
it had happened for about 15 years. But it did happen.
Now, the politicians are being brought under control. Let me quote from
the relevant sections of the judgment:
“In the present state of its maturity the common law has come to
recognise that there exist rights which should properly be classified as
constitutional or fundamental…. And from this a further insight
follows. We should recognise a hierarchy of Acts of Parliament: as it
were “ordinary” statutes and “constitutional” statutes. The two
categories must be distinguished on a principled basis. In my opinion a
constitutional statute is one which (a) conditions the legal relationship
between citizen and State in some general, overarching manner, or (b)
enlarges or diminishes the scope of what we would now regard as
fundamental constitutional rights. (a) and (b) are of necessity closely
related: it is difficult to think of an instance of (a) that is not also
an instance of (b). The special status of constitutional statutes follows
the special status of constitutional rights. Examples are the Magna
Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which
distributed and enlarged the franchise, the [Human Rights Act 1998], the
Scotland Act 1998 and the Government of Wales Act 1998. The [European
Communities Act] clearly belongs in this family…. The ECA is, by force
of the common law, a constitutional statute.
“Ordinary statutes may be impliedly repealed. Constitutional statutes may
not. For the repeal of a constitutional Act or the abrogation of a
fundamental right to be effected by statute, the court would apply this
test: is it shown that the legislature’s actual not imputed, constructive
or presumed intention was to effect the repeal or abrogation? I think the
test could only be met by express words in the later statute, or by words
so specific that the inference of an actual determination to effect the
result contended for was irresistible. The ordinary rule of implied
repeal does not satisfy this test. Accordingly, it has no application to
constitutional statutes. I should add that in my judgment general words
could not be supplemented, so as to effect a repeal or significant
amendment to a constitutional statute, by reference to what was said in
Parliament by the minister promoting the Bill pursuant to Pepper v Hart
 AC 593. A constitutional statute can only be repealed, or amended
in a way which significantly affects its provisions touching fundamental
rights or otherwise the relation between citizen and State, by
unambiguous words on the face of the later statute.
“This development of the common law regarding constitutional rights, and
as I would say constitutional statutes, is highly beneficial. It gives us
most of the benefits of a written constitution, in which fundamental
rights are accorded special respect. But it preserves the sovereignty of
the legislature and the flexibility of our uncodified constitution. It
accepts the relation between legislative supremacy and fundamental rights
is not fixed or brittle: rather the courts (in interpreting statutes, and
now, applying the HRA) will pay more or less deference to the
legislature, or other public decision-maker, according to the subject in
hand. Nothing is plainer than that this benign development involves, as I
have said, the recognition of the ECA as a constitutional statute.”
Some people, I know, are angry that the European Communities Act has been
given this special status. However, its protection against implied repeal
comes not-as the Sunderland City Council lawyers argued-because on
entering the European Union, we accepted a new legal order in which our
own constitutional arrangements were reduced to the status of a town
council, but because the Common Law now recognises a whole class of
special Acts of which the European Communities Act is presently one. If
we ever repeal the European Communities Act by explicit Act of
Parliament, it will drop out of this special class, but the special class
And we can repeal the European Communities Act. That much is now certain.
The various judgments in the Factortame legislation left the position of
European Union law highly ambiguous-was it or Parliament supreme?. This
judgment make it clear that the laws of the European Union enjoy a
borrowed primacy in England. Parliament may have chosen to indulge a
foreign authority, but cannot subordinate itself to it:
“there is nothing in the ECA which allows the Court of Justice, or any
other institutions of the EU, to touch or qualify the conditions of
Parliament’s legislative supremacy in the United Kingdom. Not because the
legislature chose not to allow it; because by our law it could not allow
This is not the outcome that the supporters of the “Metric Martyrs” were
hoping for. It is not an outcome, I think, that anyone was expecting. The
point of fundamental law was not raised in any of the hearings, and it is
highly unusual for Judges to go beyond the points raised in a case except
for giving obiter dicta , which have no binding force as precedent. But
it is a not a judgment that the Government was hoping for. Its general
implications have yet to be revealed. But it seems reasonable that a vast
mass of bad laws can now be set aside as inconsistent with fundamental
laws that they have not explicitly repealed.
Therefore, the sections of the Road Traffic Act 1982, that allow the
Police to impose fines on motorists without going to court, may be
inconsistent with the guarantee of due process in Magna Carta. The
various Firearms Acts-especially the most recent ones, which are intended
to criminalise rather than regulate the possession of guns-may be
inconsistent with the Bill of Rights. The Government’s proposed
Confiscation Agency, which will import the American doctrine of civil
asset forfeiture, will require the explicit repeal of Magna Carta and
parts of the Human Rights Act.
At a stroke, the Judges have put the politicians under a restraint that
may be as severe in practice as that imposed by the Supreme Court in
America. It means that they can carry on their game of stealing our
freedoms-but they must do so in the open, by spelling out what they are
doing in words that cannot be ignored by the courts. I have no doubt that
if they had known in advance the outcome of this case, the authorities
would quietly have connived at breaches of their metrication laws.
We have lost the right to use our traditional weights and measures. But
we may have gained the vast benefit of living again under a Constitution
that protects our fundamental rights. I feel sorry for the four men who
have taken on the considerable legal costs of getting this case into
court, and I hope that the public appeal will be sufficient to pay these
costs. But it was, most emphatically, a case worth getting into court. It
has given us, I repeat, a great and unexpected, if conditional, victory.
Director, The Libertarian Alliance
Tel: 07956 472 199
FREE download of my book – “Cultural Revolution, Culture War: How
Conservatives Lost England, and How to Get It Back” -
Wikipedia Entry: http://tinyurl.com/23jvoz
The Libertarian Alliance, the radical free market and civil liberties
policy institute, today announces the title for its 2008 Chris R. Tame
Memorial Essay Prize competition.
This Prize is funded by a generous grant from The PROMIS Unit of Primary
Care and is in honour of Chris R. Tame (1949-2006) Founder and first
Director of the Libertarian Alliance. The Prize is worth £1000.
The essay title for 2008 is:
“Can a Libertarian Society be Described as ‘Tesco minus the State’?”
Essay Length: 3,000 words excluding notes and bibliography
Submission Date: 10th October 2008
The purpose of this year’s essay title is to draw wider attention to a
debate that has been taking place within the libertarian movement for
over a century, and that is now more relevant than ever: is big business
really part of the free market in which libertarians believe? Or is it
just the “third way” between free enterprise and socialism?
Many socialists and conservatives regard libertarians as cheerleaders for
big business. Our belief in free enterprise is understood as support for
the bigger, and therefore the more successful, corporations – General
Motors, Microsoft, HSBC, Tesco, and so forth – and for an international
financial system centred on the City of London.
Some libertarians are happy to be so regarded. They dislike the way in
which big government provides opportunities for big business to acquire
privileges that shelter it from competition. Even so, they believe that a
world without government, or a world with much less government, would be
broadly similar in its patterns of enterprise to the world that we now
have. It would be much improved, but not fundamentally dissimilar.
Other libertarians disagree. They regard big business as fundamentally a
creation of big government. Incorporation laws free entrepreneurs from
personal risk and personal responsibility, and allow the growth of large
business organisations that are bureaucratically managed. These
organisations then cartellise their markets and externalise many of their
costs. The result is systematic distortion of market behaviour from the
forms it would take without government intervention. These libertarians
often go further in their analysis by denying the legitimacy of
intellectual property rights and ownership rights in land beyond what any
individual can directly use.
Where do you stand in this debate? Are you broadly comfortable with a
global capitalism that is raising billions of people from starvation
towards affluence. Or are you a radical with a vision of a society that
has never yet been tried and is as alien and even frightening to most
people as anything promised by the Marxists.
The winner of the 2008 competition will be announced at the London
conference of the Libertarian Alliance, on Saturday the 25th October at
the National Liberal Club.
Full details of the Prize at
Full details of the Conference at
END OF COPY
Note(s) to Editors
Dr Sean Gabb is the Director of the Libertarian Alliance. His latest
book, Cultural Revolution, Culture War: How Conservatives Lost England,
and How to Get It Back, may be downloaded for free from
http://tinyurl.com/34e2o3. It may also be bought. His other books are
available from Hampden Press at http://www.hampdenpress.co.uk.
He can be contacted for further comment on 07956 472 199 or by email at
Extended Contact Details:
The Libertarian Alliance is Britain’s most radical free market and civil
liberties policy institute. It has published over 800 articles, pamphlets
and books in support of freedom and against statism in all its forms.
These are freely available at http://www.libertarian.co.uk
Our postal address is
The Libertarian Alliance
2 Lansdowne Row
London W1J 6HL
Tel: 07956 472 199
The Libertarian International – http://www.libertarian.to – is a sister
organisation to the Libertarian Alliance. Its mission is to coordinate
various initiatives in the defence of individual liberty throughout the
Sean Gabb’s personal website – http://www.seangabb.co.uk – contains about
a million words of writings on themes interesting to libertarians and
Hampden Press – http://www.hampdenpress.co.uk.- the publishing house of
the Libertarian Alliance.
Liberalia – http://www.liberalia.com – maintained by by LA Executive
member Christian Michel, Liberalia publishes in-depth papers in French
and English on libertarianism and free enterprise. It is a prime source
of documentation on these issues for students and scholars.
Perhaps we should all pay more attention to Private Eye. Boatang and Demetriou have just admitted to so doing.
I have to confess that, in my (relative) youth as a 20-to-30-something London businessman, and libertarian, who kind of thought he knew what the world was about, I got riled regularly by young chaps with acne, such as Harry Phibbs* and Andrew Roberts*, who would accost me at drinkspotties or in the IEA, saying things like “now Dave, as you will have just (yeh? Me? :-O Yeh!!! (wha’-?) ) read in your Eye….” something-or-other……….
So I consciously did the opposite, and never even opened the flyleaf of any copy of it, from 1969 up to, well, soon now.
*Don’t get me wrong, squire! They’re perfectly normal guys and very rich too! Just that I didn’t think they were at the time, recommending _sotto-voce_ a strange mag printed on what seemed like bog-paper, with bad typesetting and only erratically available at WH Smith/Waterloo Station in the evenings. Perhaps it was I that was at fault.
Have a look at this here. (The Libertarian Alliance gets a rating…)
My machine now thinks it has no battery, so whenever anybody trips over the mains wire, I go right off and shut down. So you’ll all have to work out what the link is about for yourselves, as I now have other stuff to do.
According to The Independent, Britain seeks to expand its empire with 77,000 square miles of Atlantic seabed.
Splendid news. I propose Tony Blair as Governor General. We could give him a nice plumed helmet – and a pair of lead-soled boots to help his descent to this latest territory to be painted red on the map.
THE BLOGMASTER ADDS:-
This is actually a very important point raised here by Sean. If Libertarians care about property rights and what they are and what they are for, (and many of us do,) then there ought to be an agreed legal method, which everybody respects (that’s the point of Law after all, no?) to define what entitiy or “corporate person” or individual, owns what parts of the seabed.
We ought to care about who’s administering such “Law” – in case it is a bunch of “authoritarian-nationalists” (a great term, which I picked up on a newsgroup just this morning, as a description of the government of the USSR Russia today in 2008.)
MUCH MUCH better, than the crass, sad term “nazi” which gets liberals into so much trouble when used by them to describe ordinary socialists accurately.
We here do not care whether there is stuff on or under the seabed round Ascenscion Island or not. Naturally, the inhabitants, of which there are several thousand, will. It’s their life, not ours. But we think that the general point that’s being made in the article is a vital issue for the next 100-200 years, while the Earth is still the primary source of New Property Rights.
Comments please, pronto! (There will be a short written test on 31st August, to see who’s paying attention.)
4.15pm-5.30pm Session 4
“Future Imperfect”: Tech Revolutions That Might
Happen and Their Consequences…
Speaker: David Friedman (Professor of Law at Santa Clara University;
author, The Machinery of Freedom)
Moderator: Dr. Sean Gabb (Director, Libertarian Alliance)
[Floating (time to be arranged): The Great British Road Pricing
Debate:Free Market Incrementalism or Just More State Control?
LA Film Launch: Britain at the Cross Roads: An Introduction to Road
Pricing and the Privatisation of Public Space
Speaker: Dr. Richard Wellings (Deputy Editorial Director, Institute of
Moderator: Patrick Crozier (Transport Spokesman, Libertarian Alliance)]
The 2008 Chris R. Tame Memorial Prize
£1,000 to be Won
In honour of Dr Chris R. Tame (1949-2006), The PROMIS Unit of Primary Care has established a yearly prize of £1,000 for an essay on a subject to be announced by Dr Sean Gabb, Director of the Libertarian Alliance.
By the 10th October 2008, contestants are invited to submit essays to Dr Sean Gabb, Director of the Libertarian Alliance.
Essay Title: “Can a Libertarian Society be Described as ‘Tesco minus the State’?“
Essay Length: 3,000 words excluding notes and bibliography
Many socialists and conservatives regard libertarians as cheerleaders for big business. Our belief in free enterprise is understood as support for the bigger, and therefore the more successful, corporations – General Motors, Microsoft, HSBC, Tesco, and so forth – and for an international financial system centred on the City of London.
Some libertarians are happy to be so regarded. They dislike the way in which big government provides opportunities for big business to acquire privileges that shelter it from competition. Even so, they believe that a world without government, or a world with much less government, would be broadly similar in its patterns of enterprise to the world that we now have. It would be much improved, but not fundamentally dissimilar.
Other libertarians disagree. They regard big business as fundamentally a creation of big government. Incorporation laws free entrepreneurs from personal risk and personal responsibility, and allow the growth of large business organisations that are bureaucratically managed. These organisations then cartellise their markets and externalise many of their costs. The result is systematic distortion of market behaviour from the forms it would take without government intervention. These libertarians often go further in their analysis by denying the legitimacy of intellectual property rights and ownership rights in land beyond what any individual can directly use.
Where do you stand in this debate? Are you broadly comfortable with a global capitalism that is raising billions of people from starvation towards affluence. Or are you a radical with a vision of a society that has never yet been tried and is as alien and even frightening to most people as anything promised by the Marxists.
You tell us.
Essays must be original and previously unpublished works.
Essays must be submitted in English and typed and in hard copy by sending to The Libertarian Alliance, Suite 35, 2 Lansdowne Row, Mayfair, London W1J 6H, United Kingdom.
Essays must also be submitted by e-mail and in MS Word format to Sean Gabb – email@example.com
Essays must bear the name and full address of the author, including his e-mail address. The name does not need to be genuine, but work submitted under what Sean Gabb considers an absurd pseudonym may be rejected. Certainly, the prize money will be by cheque, and so must be made out to a real person.
Essays must have been received ain both hard and soft copy no later than Monday the 13th October 2008.
The winner will be announced on the evening of Saturday the 25th October 2008, at the banquet of the Libertarian Alliance Conference, to be held at the National Liberal Club in London.
The winner will be required to make a ten minute acceptance speech on Saturday 25th October 2008, at the banquet of the Libertarian Alliance Conference, to be held at the National Liberal Club in London. This speech may be made in person, or by pre-recorded video, or may be read out by Sean Gabb.
The prize will be £1,000, made out to the winner and payable in Sterling by cheque drawn on one of the United Kingdom clearing banks. No other form of payment will be considered.
The winning essay will be published by the Libertarian Alliance. All essays submitted will be published by the Libertarian Alliance.
In all matters of deciding the winner of the Prize and in all associated matters, the decision of Sean Gabb shall be final.
The act of submitting an essay shall constitute full acceptance of these terms
This prize competition is not open to any Officer of the Libertarian Alliance.
For all questions, please contact Sean Gabb
Educational Notes, No. 39
ISSN 0953-7775 ISBN: 9781856376167
An occasional publication of the Libertarian Alliance,
Suite 35, 2 Lansdowne Row, Mayfair, London W1J 6HL.
© 2008: Libertarian Alliance; Dr Philip Bounds.
Philip Bounds holds a PhD in Politics from the University of Wales. He is the author of Orwell and Marxism (2008),
British Communism and Literary Theory (2008) and Cultural Studies (1999).
His essays, articles and reviews have appeared in a wide range of journals and newspapers.
The views expressed in this publication are those of its author, and
not necessarily those of the Libertarian Alliance, its Committee,
Advisory Council or subscribers.
FOR LIFE, LIBERTY AND PROPERTY
Nicholas Kollerstrom and UCL
The universities of the free world have often employed some pretty unsavoury people. Even the most reputable academic departments occasionally play host to Holocaust deniers, apologists for Joseph Stalin or semi-fascist theoreticians who believe that Africans are genetically inferior to Europeans. The issue of how these intellectual mavericks should be treated excites a great deal of controversy. Should universities dismiss them from their posts as part of a righteous war against offensive beliefs, or should they be allowed to remain in situ in the name of free speech? Mild-mannered dons have been known to come to blows when questions like this are floated in the common room.
A recent case in a British university throws all the relevant issues into vivid relief. In April 2008 a sixty-one-year-old astronomer named Nicholas Kollerstrom was dismissed from an unpaid research fellowship in the Department of Science and Technology Studies at University College London (UCL). His offence was to have published an online article claiming that the Holocaust never took place.1 In a brief and pompous announcement on its website, UCL said that it had terminated Dr Kollerstrom’s employment because his views are “diametrically opposed to [our] aims, objectives and ethos…such that we wish to have absolutely no association with them or their originator.”2 This was disapproval with a capital “D”.
UCL’s desire to be rid of Dr Kollerstrom is certainly understandable. His article on the Holocaust is an execrable piece of drivel, repeating most of the hoary old clich�s which Holocaust deniers have persistently passed off as evidence of independent thought. Moreover, Dr Kollerstrom’s intellectual lapses aren’t simply confined to fantasising about Hitler’s innocence. The man is a sort of walking compendium of what Damian Thompson scornfully calls “counterknowledge”.3 Quite apart from publishing credulous texts on astrology and crop circles (a relatively minor crime), he also believes that the terrorist attacks of 9/11 and 7/7 were “inside jobs”. Defending him is not an easy task. Yet the fact remains that UCL’s decision to fire him is deeply unjust, not simply because it shows scant regard for the idea of personal liberty (though it certainly does that) but also because it has damaging implications for academic culture as a whole. Let me count the ways.4
Universities and Free Speech
Many of the people who support UCL’s decision invoke a purely negative conception of individual liberty. They argue that Dr Kollerstrom’s dismissal does not involve a violation of his right to free expression, since all societies necessarily impose what might be called contextual limitations on freedom of speech. No individual has the right to say exactly what he likes in whatever circumstances he likes, or so the argument goes. Free societies should avoid imposing unreasonable restrictions on the expression of opinion, but there is no obligation on any institution or organisation to provide an outlet for opinions with which it disagrees. As long as the individual has a legal right to speak his mind, he cannot expect anyone else to provide him with a megaphone.
Dr Kollerstrom’s critics tend to link this point about the contextual limits on free speech to a concern about his academic competence. Their argument is that UCL’s overriding obligation is to maintain high academic standards. Since Dr Kollerstrom’s article on the Holocaust was clearly the product of academic fraud, deliberately ignoring the vast amount of well-documented evidence that might have disproved its thesis, it follows that UCL could only protect its reputation by immediately dissociating itself from its author. The case for the prosecution was put with characteristic force by the writer Oliver Kamm, who argued on his blog that:
The issue is not one of personal liberty or academic freedom. It’s about the purpose of the academy. Holocaust denial is a demonstrably false claim about history. It can be promoted consistently only by ignoring or doctoring the evidence. Indeed, the two most prominent Holocaust deniers in the West, my reader David Irving and Robert Faurisson, have been found in courts of law (in the UK and France, respectively) to have engaged in fakery. By taking the stand that it has, UCL has properly insisted that its academics adhere not to a particular view but to a method, that of critical inquiry.5
Arguments like these are used whenever a university plays host to a controversial scholar or speaker (and sometimes even to a controversial student),6 so it is important to be clear where their weakness lies. The big problem with Dr Kollerstrom’s critics is that they state their case in far too inflexible a form. It is perfectly true that the majority of institutions should be free of any obligation to publicise beliefs they dislike. It would clearly be absurd to expect the Libertarian Alliance to publish articles by card-carrying fascists or the BNP to open its press to spokesmen for the Muslim Council of Britain. Yet the emphasis on the right to exclude opinions should not be taken too far. Most free societies have recognised that certain institutions, notably schools, universities and other places of learning, have a duty to conduct themselves along more pluralistic lines. The justification for this is a straightforwardly democratic one. Some people have an easier time getting their opinions heard than others. The columns of our leading newspapers are generally more accessible to the savants of the centre-right than to writers of the radical right or the left. The Conservative, Labour and Liberal parties can afford to produce as many party political broadcasts as they wish (subject to some fairly relaxed statutory limitations), whereas the Communist, Green and Libertarian parties enjoy no such privilege. If the right to free speech is to be made meaningful, it is therefore necessary (or at least desirable) for universities and related institutions to provide an outlet for as wide a range of opinions as possible. The community of scholars should never be mistaken for a confraternity of political soulmates.
If one accepts that universities should be as ideologically diverse as possible, it follows that their more controversial (or bigoted) employees should be treated with a certain tenderness. Administrators should proceed on the assumption that scholars have the right to say whatever they like, and that nothing short of a significant violation of professional standards should merit disciplinary action. This is not to say that no one should ever be sacked, only that universities should err at all times on the side of free speech. The fact that they no longer do so (or do so only intermittently) raises an awkward question about their legal status: Should universities be compelled to promote free speech? As unthinkable as it might seem to certain libertarians, there are times when the law can enhance the quality of public discourse rather than undermine it. The statutory obligation on British broadcasters to cover politics impartially has generally worked well, and many people now believe that a legal commitment to “pluralism” should be introduced to supplement it.7 A clause in the next Education Act to protect the rights of academic dissenters could arguably do a lot of good.
The Issue of Fraudulence
It goes without saying that no amount of enlightened chat about pluralism should protect the exponent of academic fraud. If an academic wilfully distorts or invents evidence in order to support his case, there can, in principle, be no realistic objection to his being fired, demoted or in some other way severely reprimanded. However, the issue is rarely as simple as it seems. Identifying fraud can sometimes be difficult. In the case of Dr Kollerstrom, whose article on the Holocaust undeniably reeks of shoddy scholarship, it cannot be said often enough that his work on non-scientific themes had nothing to do with his employment at UCL. His research fellowship was awarded for his work in the history of astronomy, an area in which his scholarly output is apparently unimpeachable. Anything he wrote on the Holocaust, crop circles or 9/11 was produced in his own time. What this means, as Brendan O’Neill pointed out in a fine piece on the Index on Censorship website, is that Dr Kollerstrom has effectively been sacked for expressing his “private beliefs and habits”.8 To support UCL’s decision is implicitly to back the idea that employers have a right to supervise their workers’ private lives.9
More generally, the hunt for academic fraudulence often gives rise to difficult and sometimes insuperable problems of definition. Those who call for people like Dr Kollerstrom to be sacked seem to regard the scholarly “cheat” as a sort of out-and-out rogue, persistently and deliberately distorting the truth for political ends. There is no doubt that unmitigated frauds exist (and that many of them have been drawn to Holocaust denial), but in truth they are rarely to be found in universities. The great majority of university teachers have demonstrated at least a basic command of academic research methods. The factual basis of what they write is likely to be reasonably sound, even when their interpretation of data arouses controversy. Scholars who offend against the academic proprieties usually only do so in comparatively minor ways, so that their writings are compromised at the level of the individual sentence or paragraph but rarely in toto. Moreover, their scholarly lapses are often the product not of dishonesty but of over-enthusiasm, naivet� or excessive faith in personal intuition. When a university accuses a man of fraudulence, it often ignores the fact that the bulk of his scholarship is sound and that his sins were unintentional. It is not clear that a robust academic culture can exist on this basis.
The War on Pluralism
There is one other reason why the sacking of Dr Kollerstrom was so regrettable. It has gone a long way towards reinforcing some of the most destructive academic trends of recent times. As we saw earlier, Western universities have done much in the modern age to foster the idea of intellectual tolerance. Recognising that ideological consensuses are always impermanent, they have seen it as their role to encourage open debate and to “keep large areas of past culture, if not alive, at least available.”10 However, the commitment to pluralism has come under enormous strain over the last thirty or forty years. Universities throughout the Western world have become hotbeds of political controversy, playing host to scholars of both the left and the right whose commitment to free speech has sometimes been negligible. Many observers trace the origins of the problem to the advent of the so-called soixante huitards, who entered the academy after the stirring events of the 1960s and openly pursued a “long march through the institutions” in the name of Marxism, feminism and other radical ideologies. Dismissing the established universities as little more than “ideological apparatuses of the capitalist state”,11 they sought to transform their respective disciplines into instruments of political agitation. This eventually provoked a violent backlash from scholars of the right, who have fought a vigorous rearguard action in defence of such things as “tradition”, “disinterested aesthetic values” and “hierarchy”. The battle between the two groups has rarely been pretty.
The problem has never been one of scholarship. Both the soixante-huitard left and the traditionalist right have produced work of the highest quality. The real difficulty is the quasi-totalitarian spirit in which some (though by no means all) leading academics have conducted themselves. Too many people, some of them extremely influential, now take the view that scholars from the opposite end of the political spectrum should either be drummed out of the profession or never employed in the first place. To this end they leave promising candidates off shortlists on purely political grounds, start whispering campaigns against colleagues and collaborate with campus activists to have “unacceptable” speakers banned. Significantly enough, one of their deadliest weapons is the accusation of academic fraud. For men like Henry A. Turner and Norman Finkelstein, the former a member of the sullen right and the latter an ornament of the apoplectic left, it is no longer enough to express measured disagreement with work one finds objectionable.12 Instead its author must be dismissed as a charlatan and loudly upbraided for plagiarism, tendentiousness and wilful distortion of sources. Very fine scholars have had their careers destroyed or held in check as a consequence.
When UCL took the decision to dismiss Dr Kollerstrom, it showed that the most illiberal attitudes had finally penetrated to the highest reaches of the academy. The college authorities were not responding to a mass campaign but to an e-mail from a member of the public. Faced with a coarse and bovine opinion which cut against the grain, their immediate response was to demonise the rather ineffectual fantasist who had tried to disseminate it. In taking this action they conferred an air of official legitimacy on all the sordid little techniques, most of them perfected over forty years, by which individual scholars have sought to exclude their opponents from academic life. Once upon a time the most politically conscious students might have marched in Dr Kollerstrom’s defence. This time around their silence has been deafening. Having spent so much time in a system in which curiosity is invariably trumped by conformity, they seem to have accepted the view that certain opinions are simply too horrible to be aired in civilised company. This is a measure of just how effective the war on pluralism has been. The spectacle of students, teachers and administrators uniting in opposition to free speech is a travesty of everything a university should stand for. It will take a long time before matters can be put right.
(1) See Nicholas Kollerstrom, “The Auschwitz �Gas Chamber’ Illusion”, Website of The Committee for Open Debate on the Holocaust, 2008, http://www.codoh.com/newrevoices/nrillusion.html
(2) Website of University College London, http://www.ucl.ac.uk/news/news-articles/0804/08042202, April 22 2008.
(3) See Damian Thompson, Counterknowledge (London: Atlantic Books, 2008).
(4) Lest it be thought that I have a hidden agenda, I had better say the following: The author of this article is a libertarian socialist. He has no doubt that the Holocaust occurred and he regards it as one of history’s gravest crimes. He abhors fascism in all its forms and is reasonably sympathetic to the state of Israel.
(5) Oliver Kamm, “Points from the Blogs”, Oliver Kamm (website), May 4 2008, http://oliverkamm.typepad.com/blog/page/4/
(6) Readers of a certain age will remember the deeply illiberal campaign in the 1980s to prevent Patrick Harrington, a member of the National Front, from studying at North London Polytechnic.
(7) See, for instance, James Curran and Jean Seaton, Power without Responsibility: The Press and Broadcasting in Britain, fifth edition (London: Routledge, 1997), p. 362.
(8) Brendan O’Neill, Contribution to “The Kollerstrom Question”, Index on Censorship (website), 2008, http://www.indexoncensorship.org/?p=359
(9) A more enlightened example has been set by Northwestern University in the USA, where the Holocaust denier Arthur Butz has been employed for more than thirty years. Recognising that Professor Butz’s expertise in electrical engineering (the subject he is employed to teach) is sound, Northwestern granted him tenure and turned a blind eye to such poisonous extracurricular outpourings as The Hoax of the Twentieth Century: The Case Against the Presumed Extermination of European Jewry (1976). If this sort of arrangement can exist in the USA, where sensitivity to anti-Semitism runs understandably high, it can surely be emulated in Britain.
(10) Raymond Williams, The Long Revolution (Harmondsworth: Penguin, 1984 ), p. 68.
(11) The phrase is that of the great Marxist philosopher Louis Althusser. See Althusser, “Ideology and Ideological State Apparatuses” in Lenin and Philosophy and Other Essays (London: Monthly Review Press, 1971).
(12) For Henry A. Turner’s outrageous attempt to destroy the career of the gifted Marxist historian David Abraham, see Jon Wiener, “Footnotes to History: the David Abraham Case” in Professors, Politics and Pop (London: Verso, 1991). For Norman Finkelstein’s groundless attempt to level charges of plagiarism against the Harvard academic Alan Dershowitz, see Alan Dershowitz, The Case for Peace: How the Arab-Israeli Conflict can be Resolved (New York: Wiley, 2006).
Tom Paine at the Last Ditch has a good roundup of thoughts about what to do about this unfortunate man Gary Glitter, and how “Jacqui” Smith’s thoughts affect general liberty. See Sean Gabb’s 1999 article about Glitter’s case earlier.
I;m not suggesting that “Jacqui” Smith ”wants to see” paedophiles burned at the stake in public, but perhaps if “New” “Labour” wants “an eye-catching initiative” with which “the Cabinet” can “be directly associated”, then this could be it.
Anyway, this is August, so let’s fill up the firewires with stuff about sex, porn, child abuse and the like. There’s nothing else happening, after all, since Russia is all about oil, and Georgia is a faraway country of which we know llittle..
This year’s Annual Conference, of the Libertarian International and the Libertarian Alliance, promises to be as grand as the last one in 2007. It will be hosted, as is usual, at the National Liberal Club, a stone’s throw from the Houses of Parliament, Whitehall, Trafalgar Square, and many major attractions of Central London.
I have it on good authority that David Friedman, son of the eponymous Milton (“…if we take as a first approximation, the assumption that about 100% of all monies raised by taxation are then wasted…”) will be attending and will speak.
Topics of important seminars will be:-
“The defeat of ageing – our ultimate freedom?” – Dr Aubrey de Gray (Cambridge)
“Future Shock; three perspectives on freedom in the 21st century” – James Panton (Oxford), Dr Sean Gabb (LA) and Martin Summers
“The global rise of private education for the poor” – James Stansfield (Newcastle)
DEBATE:- “Road Pricing; free market incrementalism, or just more state control?”
LA FILM LAUNCH:- “Britain at the Cross-roads; An intro to road pricing and the privatisation of public space”.
Conference Annual Dinner and Awards, including after-dinner speech:- Reasons to be optimistic – why we are winning the battle for lower taxes” – Matthew Elliot (Chief Exec, taxpayers’ Alliance)
“Ban the Ban” – the human cost of prohibitions – Dr John Meadowcroft (King’s, London)
“The idea of a private law Society” – Prof. Hans-Hermann Hoppe (Nevada)
“The modern panopticon state versus freedom: why State ID cards are bad” – Guy Herbert, (gen. sec “No-2-ID-cards”)
“Post-modernity and liberty” – Marc-Henri Glendenning, Dr Sean Gabb
Attendance including the dinner costs a nugatory £85 sterling, or USD$ 170. you can pay by post, via the Libertarian International, or via Paypal on our own website. (All the details are there in full.)
People are well advised to book early, as places are limited ultimately by the “safety-Nazis and fire regulations.” So book now!
“Protection” will come only from draining the swamp, and not from imprisoning all the farm-animals indoors, until ther are all dead.
Reflections on the Gary Glitter Case
by Sean Gabb
Paul Gadd, performing under the name Gary Glitter, was a very popular British singer in the early to middle 1970s. Even as a child, I had no liking for rock music. But I did notice and like Gary Glitter. It was not for his songs, which were as unmemorable as all the others of his day. What made me notice him was the wild extravagance of his dress—all sequins and tight trousers—thrown carelessly over a figure that was always verging on the fat. What made me like him was the pleasant and self-deprecating manner in which he handled television interviews. He seemed surprised at his popularity, and even a little contemptuous of the public taste that had raised him so high.
I lost sight of him after about 1974, and gave him no more thought until I heard last year of his difficulties with the criminal law. Apparently, he had bought a computer from PC World, which is the largest computer retailer in the United Kingdom, had used this for a while, and then had taken it back to have its various faults put right. The repair engineer had discovered a number of pornographic images on the hard disk and called the police. Mr Gadd was charged with possession of child pornography under the Protection of Children Act as amended in 1988 and 1994. Sometime after this, a middle-aged woman came forward and accused Mr Gadd of having seduced her when she was fourteen and of having kept her as a “sex slave” for the next twelve years.
The case reached its end last Friday the 12th November. The Jury cleared Mr Gadd of all charges in connection with the middle-aged woman, but he had already pleaded guilty to the child pornography charges, and the Judge sentenced him to four months in prison. The radio journalist who reported all this to me gloatingly predicted that it meant the end of Gary Glitter. Bearing in mind the number of young and not so young women who danced and cheered in the public gallery and outside the court as the news of his partial acquittal, and his ability to survive all the changes of fashion in the past quarter century, I am not so sure. Gary Glitter will be banned from every radio station in the English-speaking world, but his live concerts will never be less than standing room only.
Now what I find so interesting about this case is not the personality of Gary Glitter, but how it illustrates the best and the worst about the British system of justice. Let me begin with the middle-aged woman.
It is absurd that charges of seduction can be brought so long after the alleged event. I do not wholly share Peter Tatchell’s belief that the age of consent should be lowered to fourteen, and I do believe that adults who have sex with young people under a certain age should have to face criminal charges. But there surely ought to be a time limitation on bringing such charges. To let them be brought without any limitation is an abuse of justice. A child who complains immediately after an alleged assault should at least be listened to. An adult who complains 20 or 30 years after the event should be laughed at. I would say that anyone who spends so long brooding over something that might at the time not have been so terrible, but which with the passing of years becomes increasingly trivial, should not be seen as a reliable witness. At the very best, dates and places and other facts become blurred in the memory of all parties. At worst, elaborate lies can be told against which there can be no easy defence.
The injustice is heightened by the anonymity guaranteed by law to the accuser. Someone who stood up in court three centuries ago and accused an old woman of cursing his sheep was known to the Jury and had his name reported in the newspapers and the court records of the day. The middle- aged woman who accused Mr Gadd was unknown to the Central London Jury who assessed her evidence, and her name cannot be published anywhere. I do not know if she was lying. But the fact that no one will ever know her name must have been an incentive not to tell the truth. Except she still had to give her evidence in person, the procedure was borrowed straight from the Inquisition. This corruption of process is an achievement of the feminist movement, aided by politicians and civil servants who instinctively hate the old notion of equality before the law. The next step – already demanded, though not yet granted—is to reverse the burden of proof, so that the defence will need to prove innocence.
Then there is the partiality with which the law is applied. If ever accused of legal oppression and wasting taxpayers’ money, the authorities will hide behind a wall of excuses about having had no choice but to prosecute. “The evidence was there” they will say. “There was a prima facie case against Mr Gadd. It was our legal duty to prosecute and let a Jury decide.” This is a lie. The authorities have almost unlimited discretion over what cases to drop and what to pursue. Look, for example, at a recent case in Lancashire. Eleven Asians were charged with the murder of a young white man. Just before the trial started, all the murder charges were dropped. This was not for want of evidence, but because “prosecution would not be in the public interest”. It would not be in the public interest because it would mean letting the media report that some parts of this country are sliding into a low intensity civil war between different ethnic groups. Mr Gadd was made to stand trial not because there was overwhelming evidence against him, but because the authorities do not approve of sexual pleasure—unless, of course, it is their own; and then puritanism melts instantly into hypocritical mewling about “diversity”, and the sanctity of private life.
Or look at the Mr Gadd’s accuser. She had accepted money from The News of the World for her story, and had been promised another £25,000 if Mr Gadd was found guilty. Will she be charged with contempt of court and sent to prison for two years? I doubt it. Her example will be used to justify further censorship of the media, but she will never be punished under the known, ancient laws against what she did.
I turn now to the pictures found on Mr Gadd’s computer. There is no certainty that these were of young persons under the age of sixteen. The police make it their habit to classify all pornographic images they find as of children, no matter how old the models appear to be. They then rely on threats of exposure in the newspapers and castration in prison to force a confession to something else. It may be that Mr Gadd held out too long. Or perhaps he really was guilty under the law. We shall never know, as he confessed to possession at the last minute, so the pictures were not shown in court. But let us assume that these pictures were of children. This being so, are there any credible reasons for why possessing them should be illegal? In asking this, I take the standard libertarian position that an act should be criminal only so far as it can be shown to have caused an identifiable individual harm that would be recognised as such by a reasonable person. What harm did Mr Gadd cause to anyone?
One answer is that if Mr Gadd had taken them himself, they would be evidence of a crime. It would be the same if he had procured somebody else to take them. That would make him an accessory to a crime. But the crime here would not be possession: possession would be no more than evidence of a crime. In any event, there is no claim that he ever knew the models or the photographers. He appears simply to have downloaded them from the Internet.
Another answer is that looking at such pictures somehow encourages attacks on children. There is a vast literature on the alleged inflammatory nature of pornography, and I will not refer to it beyond saying that I have yet to be shown a causal connection between pornography of any kind and sexual violence. But I will observe that if Mr Gadd, as we are told, spend up to twelve hours a day downloading his pictures, he can have had little time for doing much else. And I will observe that if possession of child pornography is to be banned because it might provoke attacks on children, possession of all pornography ought to be banned for the protection of everyone else. And once we have done this with pornography, we should extend the ban to most kinds of religious and political literature. I have no idea how many sexual murders there have been in the past five centuries, but I doubt if they amount to even a thousandth of one per cent of those committed for the greater glory of God or the welfare of the masses. To imprison Mr Gadd because he had some smutty pictures, and let others go for having copies of The Bible or The Communist Manifesto, is at the very least inconsistent.
An answer still less convincing is that by downloading the pictures, he was somehow encouraging their production. This might be the case had he been paying for them. But I am not aware that he paid for anything. So far as I am aware, he downloaded from various newsgroups and open access web sites. And even if he had paid for some of the pictures, it is hard to see why there should be laws against possession of what he had bought. I have numerous objects in my home that I strongly suspect were made with child labour. This computer is running on electricity that I am sure was generated from coal mined at least partly by Colombian children. In a sense, therefore, I am encouraging the exploitation of children. But I stand no chance of being arrested and put on trial. What is the difference between Mr Gadd—assuming he paid for the pictures—and any of us who pay for children to be treated in a manner that we regard, perhaps rightly, as criminal? Indeed, it can be argued that it is less harmful for a child to be photographed in a warm studio over several hours than to be worked day after day in a factory with unguarded machinery all around. The real difference between Mr Gadd and the rest of us is that the exploitation he may have encouraged gave him sexual pleasure, and the pleasure we derive is not sexual. It is not harm to children, therefore, that is the real object of prohibition, but the nature of the enjoyment that others derive from it.
And so that law has no justification. Its only consistent purpose is to make a crime of certain fantasies. Its most likely effect is to give the police unlimited power to destroy anyone they do not like by planting evidence. If I am accused of murder, a body must be produced. If I am accused of even a victimless crime like selling drugs or pornography, some objective evidence must be produced in court—either witnesses or a paper trail showing payment of suppliers and laundering of the proceeds. But a law against possession of certain images makes it ridiculously easy to get convictions on the basis of planted evidence. Let the police “find” the wrong sort of image on my hard disk or among my books, and there is no need to prove how it got there. And so we have another law that moves us further away from the ideals of the old Common Law and towards the practice of the Inquisition.
I did say that I would mention what is good about the British system of criminal justice. This is Trial by Jury. So long as twelve ordinary people have the unrestricted right to find someone not guilty even in the face of the evidence, we still live in a reasonably free country. The authorities in this country have turned democratic accountability into a joke, and can make whatever laws take their fancy. But the enforcement of these laws will always be partly restrained by the need to persuade a Jury that they should be enforced. I did not follow Mr Gadd’s trial with close attention, but I am ready to believe that the Jury acquitted him of the charges brought before it partly because of the oppression involved in laying such charges so long after the alleged event and because of the evident corruption of the only prosecution witness.
I will not say more about Trial by Jury, however, as it is on the way to abolition. The Government is about to bring in a Bill to limit the right to no more than a few hundred cases a year; and this last remnant will be swept away as soon as the Government introduces the Corpus Juris—that is, full harmonisation with European criminal law: no Trial by Jury, no habeas corpus, no presumption of innocence, no rule against double jeopardy, and so forth.
But let us enjoy it while we have it. Paul Gadd is a victim of injustice. But things might have gone worse for him had his computer not broken down until after the abolition of the Common Law. Perhaps he should even be grateful that PC World sells such rotten, unreliable products to its customers. Of course, if he had bothered to learn a little more about wiping and deleting data from his hard disk, he might still be at liberty. But that is another matter entirely!
1. The law has been created as follows:
Section 1 of the Protection Act 1978 reads:
It is an offence for a person -
(a) to take, or permit to be taken, any indecent photograph of a child (meaning in this Act a person under the age of 16); or
(b) to distribute or show such indecent photographs; or
(c) to have in his possession such indecent photographs, with a view to their being distributed or shown by himself or others; or
(d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs, or intends to do so.
Section 160(1) of the Criminal Justice Act 1988 amends this Section by adding that
It is an offence for a person to have any indecent photograph of a child (meaning in this section a person under the age of 16) in his possession.
Section 84(2) of the Criminal Justice and Public Order Act 1994 further amends the 1978 Act as follows:
In section 1 (which penalises the taking and indecent photographs of children and related acts) -
(a) in paragraph (a) of subsection (1) -
(i) after the word “taken” there shall be inserted the words “or to make”, and the words following “child” shall be omitted;
(ii) after the word “photograph” there shall be inserted the words “or pseudo- photograph….
The wording of the other paragraphs of the 1978 and 1988 Acts is similarly changed to reflect the creation of the new offence.
Section 7(5) of the 1978 Act is amended to read as follows:
(6) “Child”, subject to subsection (8), means a person under the age of 16.(7) “Pseudo-photograph” means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph.
(8) If the impression conveyed by a pseudo- photograph is that the person shown is a child, the pseudo- photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.
In this section the laws of Scotland and Ulster are also amended to the same effect.
2 . As an aside, I can say that most girls I knew when I was fourteen would have been deeply honoured to take their knickers off for Gary Glitter. To become his “sex slave” for an entire twelve years would have seemed very heaven.
3. The case was reported BBC Radio 5′s Drive programme on the 3rd November 1999. The interviewer was Peter Allen. Robert Henderson, who told me about the case, checked The Daily Telegraph, The Times, The Guardian, The Independent, The Daily Express, The Daily Mail, and The Mirror. Not one carried a single word about the story.