Napoleon's dynamite

Two questions: would we have a problem with overcrowded prisons if Boney had made it across the channel? Would our legal aid bill be the biggest in Europe?

These questions are not obvious, but it's a curious fact that everywhere Napoleon took his armies, abolished ancient regimes and established his famous code they lock up less people than we do. Beccaria, the leading jurist of the Enlightenment, explained the basis for new approach. Punishments may be less severe provided they are consistently and regularly administered. Catch an offender every time and you'll not need to beat him so hard.

There's a lesson for us here which we might profit from. We live in topsy-turvy times and need to fix a few principles to guide us. The politicians won't help us. They advance their careers by selling out their supporters. Watch Blair returning from exile to remind us New Labour was Old Tory, and Clarke becoming new liberal because soft punishment is so much cheaper.

And, the weird thing is, they both seem to be right. California has bankrupted itself building so many super gaols. On the other hand 'three strikes and you're in' does discourage burglary at least of houses '“ garages may be attacked with relative impunity.

How do you square this circle? New Labour's plan was to flog off expensive-to-maintain city centre Victorian prison real-estate and warehouse criminals in super new Titan prisons paid for on the never-never. But the housing price crash put off the prison redevelopers and everyone now knows that Gordon's PFI idea was only a wheeze to make the accounts look good. The Tories thought we could put prisoners on hulks until it realized we hadn't got any, and couldn't afford to build any new ones. And the idea of a ship transitioning from half-built aircraft carrier to floating prison without a spot of whizz-bang in between is even more difficult to contemplate than co-ownership with the French.

Luckily for Labour, they lost the election. So it costs them nothing to push an unworkable lynch-mob ideology. And it earns them badly needed brownie points with the red tops. Societies are defined by the people they exclude. And society's leaders achieve

popularity by selecting hate figures. After Gorbachov (a man we can work with) and before Al Quaeda the shortlist got dangerously low. Squeegee merchants, hoodies and paedophiles were rapidly promoted to fill the gaps left when the menace of international communism evaporated. Prison worked; to keep the Conservatives in power until Labour learned to sing the same song.

The hunt for truth

The advantage of Napoleonic continental systems is that they are more inquisitorial than ours. What happens in court is a hunt for truth, not a procedural game. The judge is active and controlling. Where the seriousness of the indictment requires a judgment that has the authority of a jury, the jury receives greater direction and may have to produce a reasoned verdict.

Sentimentalists should not imagine that our system has always been as adversarial as it has become. The Fielding brothers famously directed the process of investigation as well as trial; their Bow Street Runners operating as London's first professional police force. There was no right to representation in felony cases until the Prisoners' Counsel Act 1836. Legislators worried at the time '“ correctly as it turned out '“ that this would confer a right of silence on suspects who had the means to pay their barristers. After legal aid that would mean nearly everyone. The court would wrongly, they reasoned, be deprived of a source of information in its attempt to discover what had really happened. And the last significant element of inquisitorialism, the old style committal which permitted the magistrate to determine the indictment, has only recently gone.

In his book, The Origins of Adversary Criminal Trial, Langbein explains that the unintended long-term consequence of the development of adversarial procedure was that the truth became harder to get at. He calls this the 'truth deficit'. It gives us inflated acquittal rates and failures to prosecute. It gives us the highest legal aid bill in the world and the highest prison population in Europe. Why so many prisoners and so much expense to keep them there? Because it is a hallmark of an inefficient criminal justice system that it has to punish excessively severely to maintain the principle of deterrence.

There is a massive literature on marginal deterrence theory '“ itself an extension of Beccaria's argument '“ about which most lawyers are sadly ignorant. Remove excessive adversarialism, and professionalise the magistracy and you can then cut the legal aid bill and the prison population while maintaining the deterrent principle.

Ken can be reconciled with Tony.

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