The defendant has one other protection: the jury. The jury consists of twelve ordinary citizens who have to decide, having heard the evidence, whether he is guilty or not. These juries are selected at random from people on the Electoral Roll (people entitled to vote). If you, an ordinary citizen, are called for jury service you are required to carry out this duty for two weeks. Juries sometimes make mistakes, of course, but there is an important principle in having one's fellow citizens decide on one's fate. We - the ordinary people - will decide if someone deserves to be punished; that decision is not part of the role of 'the State'. Members of juries have to promise never to discuss what went on in the jury room where they were considering their verdict. So it is quite difficult to do research on the behaviour of juries! Still, certain accounts do leak out, and all the evidence we possess indicates that members of juries take their role extremely seriously and do their best. Sometimes the government proposes that some trials should be carried out without juries. They are always strongly opposed by most of the legal profession, by most thoughtful people, and by most evidence that we have.
Moreover, the jury principle is crucial if our legislation contains an out-of-date unreasonable law. Juries reflect public attitudes; if they think the sentence will be wrong or too harsh, they will refuse to convict. In that case the defendant walks free - and Parliament will have to reconsider the law. (Such jury objections have happened in modern times, but the most famous cases occurred at the end of the eighteenth century when poor country labourers could be hanged for stealing a sheep to take home to their starving family. Juries were so outraged at the injustice, that even if the labourer was caught with a sheep hanging over his shoulder, they would announce, 'Innocent, my Lord!' to the judge. So the law had to be changed and people were no longer hanged for sheep-stealing.)
Once the jury have delivered their verdict, the Judge has to decide on the sentence if the defendant has been 'found guilty'. Sentence, too, is subject to precedent, but also to pressure from Parliament. Most debate at the moment is concerned with how we punish our convicted criminals. Here is a paradox. We have an unarmed police force, and a body of law which puts the ordinary person at the centre. Yet we are notably harsh in our punishments. We have a higher proportion of the population in prison and, on average, serving longer sentences that any other country in the European Union apart from the recently admitted Eastern European countries. America and Russia have the highest proportion of their population locked up. In Russian the figure in 2009 is about 600 per 100,000 of the population. Other 'ex-Soviet' countries and ex-Soviet-bloc countries have this tradition, and lock up between 200 and 400 people per 100,000 population. But elsewhere in most of the world, rates are much lower. The British rate has almost doubled in 10 years. Now it is around 145 people per 100,000 where some other western countries have about 85 people per 100,000 population. Most people who think seriously about the prison service, criminal justice and the needs of our people see this as a source of shame. We have a wide range of alternative punishments: probation (probation officers are not police but they carry out work similar to the 'prophylactic arm' in your militia), fines, work in the community, various kinds of health and psychological treatment - but these alternative forms are not used as much as they might be, and our prisons are overcrowded.
Conditions in prisons range from the very good to the awful. In the best prisons there are regular programmes of education, training, work-for-wages, support from psychologists and doctors and social workers. In the worst prisons, over- crowding and a pervasive drug culture make it difficult to organise the kind of programmes which would help the prisoners to become law-abiding citizens when they left. (Having said that, I do not think our worst prisons are as bad as your worst prisons. There are always workers and volunteers to observe and speak out about prison conditions. But this is not easy.) As in countries all over the world, we are constantly debating what to do about this problem.
What then do we mean by 'the rule of law' which I referred to at the beginning of this chapter. In a recent important lecture, the senior British Judge examined the phrase and suggested what it could - and perhaps should - mean. Among other points he stressed that all people and all authorities within a state should be both bound by the law and entitled to the law. So the law gives you rights but also restraints. To be fair to everyone, the law must be accessible (you must be able to find out what is the law on a particular problem), intelligible, clear and predictable. (If it isn't predictable, a person may be unable to work out the consequences of his action.) Every person within the state must enjoy equal protection of our laws - whatever their race, religion, beliefs or status as citizens or non-citizens. If they are arrested, each and every person must have access to a lawyer and the right to know of what they are accused within a short time. (It used to be within two days; now the law permits certain types of suspected terrorists to be kept in prison for up to 28 days before telling them what they are accused of. This 28-day rule led to a huge battle between the House of Commons which was worried about terrorism and the many lawyers in the House of Lords who said that 28 days of detention without explanation would be breaking the right of the detained person to Habeas Corpus. In practice the 28-day rule has been hardly used at all.) An arrested person has the right to a fair trial with a proper defending lawyer whether or not he can pay for one. And a defendant must be presumed to be innocent until he is proved guilty.
If a state follows the 'rule of law' these are some of the conditions it must accept. The state can expect everyone to obey the law because (in a democracy) the origins of law are in (he decisions of the people. The state authorities who uphold the law - the police - must not use violence, threats or bribes when dealing with those who may have broken the law. Trials should be open and fair, and not affected by state interference or media interference. Juries must be impartial (not friends or foes of the defendant) and free from intimidation and threats. The judge's responsibility is to see that trials are fair and the guilty person is properly sentenced according to the law. Those found guilty or those who have lost their case in the civil courts should have a right of appeal. (Appeals do not often take place because if an appeal is dismissed, the guilty person may be given a longer sentence, or, in a civil case, the claimant may have to pay bigger costs. So appeals are usually over legal matters, technical arguments, efforts to elucidate the correct meaning of the law.)
Although legal arguments may appear strange and even old-fashioned, I think it is true that our legal system does give people in this country rights, responsibilities, equality before the law, fairness, and a respect for individuals, whether they are accused of a crime, a victim of a crime or someone seeking justice in a civil case. That does not mean that individuals are always treated justly. If a society cannot offer equal opportunities and advantages to its citizens then the law cannot straighten out the fundamental injustices. So individuals continue to believe that they are treated unfairly, and unfortunately they are often correct. Nevertheless, overall I believe that our judiciary try to administer the best justice, and that our governments and our parliament, even when they make foolish or muddled decisions, are genuinely trying to do their best to ensure that the laws they pass are for the benefit of society - that is, of all of us.