Stupidity is catching and infecting our criminal laws

To anyone clinging to the naïve belief that the enlightenment project is succeeding, I recommend observing the standard of private member's Bills proposed by our elected representatives. In particular, this month's highlight comes from backbench Conservative MPs, and professional trolls, Peter Bone, Philip Hollobone, and Philip Davies.

Their Bill - officially the Foreign National Offenders Bill, but introduced by Mr Hollobone in parliament as the 'Send Them All Back Bill' - provided for the automatic deportation of any foreign national convicted of an imprisonable offence.

The misspelt Bill specified that it mattered not whether the defendant actually received a prison sentence, the test was simply whether the offence carried a theoretical sentence of imprisonment, however remote the possibility of it being imposed. The effect would be that someone taking their child out of school to go on holiday (section 444(1A) of the Education Act 1996), or taking a can of Kopparberg onto a coach (section 1(3) of the Sporting Events (Control of Alcohol etc.) Act 1985), would find themselves uprooted and shipped out of these liberal shores.

In any enlightened democracy, a Bill such as this should be a rarity - a collector's edition of legislative folly, to be lovingly dusted off in undergraduate seminars on the limitations of human reason. Upsettingly, as criminal lawyers know all too well following decades of parliament reflexively legislating with a flirty wink to the popular press, it is not.

As a culture we have developed an impressive record of electing as our representatives individuals whose soundness of judgement could easily be surpassed by the wit of a coin toss, Magic 8 ball or Gloucestershire Old Spot rolling in its own dirt.

Worthy of a particularly grandiose cap-doff, I suggest, are the following:

1. The Law Against Blowing Up the World (Nuclear Explosions (Prohibition and Inspections) Act 1998)

One of New Labour's earliest helpful modifications to the criminal law sought to prohibit, for the avoidance of doubt, the detonation of a nuclear bomb, just in case the existing laws covering murder, manslaughter, inflicting grievous bodily harm, the Explosive Act 1875, the Explosive Substances Act 1883, and criminal damage weren't clear. The exception is, of course, when we are 'at war', in which case, with the nod of the Home Secretary, we are seemingly free to nuke to our hearts' content (section 1(2)(3)).

2. The Sentencing Escalation Bill

The hallmark of a Bone, Hollobone, and Davies Bill is its gleeful disregard for proportionality. As exemplified in this Bill in which they sought their own mandamus impelling judges to ensure that a defendant sentenced for a criminal offence always receives a longer sentence than his longest previous sentence for the same offence. Whatever the circumstances. Let's say that, as a youth, I broke someone's nose and was sentenced to three years' detention for occasioning actual bodily harm (ABH). And let's say, a lifetime later, as an 80-year-old war hero, some yob spits at my wife and I slap him, leaving a small bruise (also ABH). The judge would have to sentence me to at least three years. That'll learn me.

3. Stalking (section 2A of the Protection from Harassment Act 1997)

Problem: The existing law of harassment is too difficult to prosecute and provides insufficient protection to victims of stalking.

Solution: Enact an offence of stalking that requires the prosecution to prove all the elements of harassment, but make it even harder to prove by adding an additional criterion that the conduct complained of 'amounts to stalking'. Oh, and to ensure that the new law is utterly redundant, and would never sensibly be used, provide that "stalking" carries the exact same maximum penalty as harassment.

4. Minimum sentence for unknowingly using a stolen Blue Badge

This gem from the back catalogue of Philip Davies MP did exactly what it said on its Daily Express-sponsored tin. Aggrieved at what he saw as an epidemic of hardened crims pinching disabled drivers' blue badges to take advantage of convenient parking, this private member's Bill prescribed a mandatory minimum term of six months' imprisonment for any person using a stolen badge - whether or not they knew or believed it was stolen. So the genuine victim of a scam, who was unwittingly using a dodgy badge, would have no defence in law. 'I would sooner take the tag of being draconian,' Mr Davies told a stunned House of Commons, 'than the tag of being soft on dealing with crime.'

5. Grossly disproportionate force (section 76(5A) Criminal Justice and Immigration Act 2008)

The government, eager to assure voters that Middle England wouldn't have its collar felt if it whacked a burglar in self-defence, introduced section 76(5A), purporting to provide that a householder acting in self-defence could only be convicted if the force used was 'grossly disproportionate'. The longstanding test of 'reasonable force', which seemed to have worked well for a few hundred years, was not good enough. Only, as the High Court recently ruled, that's not what the legislation actually achieves. Section 76(5A) simply precludes 'grossly disproportionate' force from being 'reasonable', which remains the test.

So, in the home, you can use disproportionate force, as long as it was reasonable to act disproportionately. Grossly disproportionate can never be reasonable, but it can be reasonable to be disproportionate. The difference between grossly disproportionate and just plain disproportionate is a matter for a jury, who will be directed that they must be sure that they force used was unreasonable, applying common standards of reasonableness and proportionality.

All clear, yes?

6. Minimum terms for three-year-olds

Not a Bill, fortunately, but a predictor of things to come. Philip Davies has indicated that he feels the minimum age of criminal responsibility is too low. In an interview he considered whether it should be as low as three.

7. The Criminal Courts Charge

Q.E.D.

@BarristerSecret is, unsurprisingly, an alias for a practising barrister

You can visit his blog at www.thesecretbarrister.com

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