Nick Freeman’s latest article for The Times is all about loopholes being unpopular but still the law. You can read the article below.
They’re unpopular, but ‘loopholes’ are the letter of the law
Justice is supposed to operate on a simple algorithm: convict the guilty and acquit the innocent. Break the law, pay the penalty. Yet test the system against the strength of public reaction and, to paraphrase George Orwell, although all laws are equal, some seem more equal than others.
No more so than when acquittals are secured on obscure legal technicalities. When a case is junked because of, say, procedural error, the response is voluble. How can that be justice?
Little wonder that statutory requirements are now dismissed as loopholes, even though they are law and carry as much weight as the order to stop at a red light. To the public they prevail as a morally unpalatable get-out clause.
Why are these so-called loopholes — or rather laws — so unpopular? And how can we shift this?
Essentially, if a case is dismissed because of procedural errors, that doesn’t satisfy a visceral cry for justice. Especially in the face of what seems to be overwhelming evidence.
In my area of work it happens all the time. It is perhaps best illustrated by the case of a speeding drink-driver who caused a lorry to swerve into a family of four, causing life-changing injuries. The case crumbled because the client refused to blow into a Breathalyser a second time, after failing to produce enough puff at the first attempt. The police then demanded a blood/urine test, which he submitted to. What they should have done was charge him with failing to provide. In making such a procedural error, it meant the reading, though sky-high, was unlawfully taken. Case dismissed.
In calamitous situations such as this, where innocent lives are devastated, the primal response is to ask: “What difference does it make how the reading was taken?” But these are rules set down by parliament. Many such rules are in place for good reason. For example, drink-driving is one of the few areas of law where defendants are obliged to self-incriminate — to provide evidence that could be used against them. That’s why the statute demands specific procedure, such as the reading of a warning before obtaining a specimen, so the defendant understands the consequences. It is all in pursuit of scrupulous fair play.
The outraged public can be hypocritical when it suits. Motorists, for example, are generally happy to speed. And so when West Mercia police’s chief constable Anthony Bangham said drivers should face penalties for going just 1mph over the limit, there was outcry — even though all he was advocating was the strictest (although not, perhaps, the wisest) application of the law.
So how to redeem the perception of the loophole? The simplistic answer is for police to follow correct procedure. And whenever police or prosecutors throw away a case because of such errors, they should be reminded that knowledge is king so the mistake is not repeated.
Take case management hearings, where parties meet to try settling the issues in dispute before a trial. I would wager at least a third of cases are discontinued because the prosecution doesn’t comply with the directions of the judge. The public only hear of this when the case has been thrown out and the brief becomes target practice.
Bad press shouldn’t stop defence lawyers drilling into the darkest corners of statue. But when they win on the minutiae of the law, it would help if the police and Crown were obliged to explain their errors publicly. An exercise in humiliation, perhaps, but the impact in reducing mistakes would be incalculable.
It would provide the ultimate reminder that loopholes are law — calling them anything else is the biggest loophole of all.
You can read the original article by clicking here.