Dark days for the rights of Englishmen (John Mortimer’s Rumpole Misbehaves)

John MortimerIs John Mortimer trying to wean us away from Rumpole? His latest Rumpole book, Rumpole Misbehaves, clocks in at a mere 197 pages of unusually large type. I suppose you can’t blame an infirm 85-year-old man for writing economically, but neither can you blame fans for wanting as much Rumpole as possible.

Anyway, in this new book (actually published last December), barrister Horace Rumpole is retained once again by his most faithful clients, the Timson family. This time, an “Anti-Social Behaviour Order” is being sought against twelve-year-old Pete Timson for chasing a ball into an upscale neighborhood and annoying one of its residents. Rumpole takes on the defense.

UPDATE: John Mortimer died on January 16, 2009. See this post.

Despite my modest familiarity with legal terminology, I had never heard of an “Anti-Social Behaviour Order.” (Neither had Rumpole.) In Rumpole Misbehaves, Mortimer describes it as a new procedure under English law that lets a magistrate issue an order against someone who may be accused of nothing more than bothering someone. Then, if the person violates the order, he’s committed a crime and can go to jail.

And so, in Mortimer’s story, a woman has accused young Timson of disturbing her peace and tranquility merely by playing football in her street. (The author apparently means “soccer.”)  Rumpole tries to to defend the boy in Magistrate’s Court with a speech extolling the ancient liberties of the English people, but his words fall on deaf bureaucratic ears.

At first I assumed that Mortimer was making this up. Surely an English magistrate could not simply order you not to do something – in essence, make up a new law that applies only to you – and then give you a criminal record if you do it anyway!

Even less could I believe that an “Anti-Social Behaviour Order” could be issued, as happens in Mortimer’s story, on hearsay evidence, without the complainer’s even coming into the magistrate’s court.

But I had never before detected elements of Orwellian fantasy in Mortimer’s writing, so I did a little research and was alarmed to find that “Anti-Social Behaviour Orders” are all too real. They are already so well known in England that the acronym (asbo) is usually written in lower case.

I found that it doesn’t take much for someone to be given an asbo. A person can get one for nothing more than – here’s what the statute says – “conduct which caused or was likely to cause alarm, harassment, distress, or harm” to someone outside your own home.

So proceedings like the one against Rumpole’s client are entirely possible, and not uncommon. A person really can go to jail – for up to five years, two if he’s a minor – for violating an asbo. And a magistrate really can issue an asbo on nothing more than hearsay.

Don’t think this can be blamed on Margaret Thatcher. This law seems to have been one of the first measures the Labour Party passed in 1998 after it took power. ASBOs seem to be a bit controversial in Britain, but they are apparently around to stay, and old-fashioned ideas of due process aren’t allowed to interfere.

In the United States, surely, such a law would surely not stand. Our courts would strike down a statute like this as unconstitutionally vague, and our Bill of Rights gives people accused of crimes the right to be confronted by our accusers, not convicted on hearsay.

But the Brits seem to be systematically untethering themselves from their heritage of individual liberty. “ASBOs” are just one of a number of sobering legal “innovations” in the UK. Unfortunately, they coincide with an internationalist trend in American jurisprudence in which some Supreme Court judges look at what the Europeans are doing to help them interpret our own Constitution.

Sadly, England can no longer be relied on as a fellow keeper of the Anglo-American tradition of personal liberty. We’re on our own now.


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2 CommentsLeave a comment

  1. Well written coments, but unfortunately flawed as there is an assumption that there exists only two countries in this world with common law origins. Fortunately, this is not the “case” and many other countries, such as Canada, Australia, New Zealand, etc, etc…, all with its beginning in the English common law, continue to uphold the concept of due process, even if the UK has determined the most basic principles of law to be inconvenient at present.

  2. you are correct in all the facts about ASBOs; they exist, everyone in the UK has heard of them, Labour introduced them, they are controversial. This is all true.

    I notice in your writing a strong strain of philosophical libertarianism; i.e., the central tenet of society is ME, what is the INDIVIDUAL liberty. Freedom “to” rather than freedom “from”. I would argue that the European tradition is actually more aligned with philosophy suggesting a mutual negotiation of rights and responsibilities. I personally do not believe, for example, the freedom of speech is an absolute.

    ASBOs are another example. Yes, there are some absurd ASBOS which have been handed out. But for the most part, they exist to give people a way to take action against those indulging in persistent, deliberate and provocative behaviour, such as consistently blaring loud music from windows at night, etc. Most of the time, i have no problem with ASBOs.

    (interestingly, among many young disaffected people in street gangs, an ASBO is now almost a badge of pride and honour)

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