Page 5, 15th November 1991

15th November 1991
Page 5
Page 5, 15th November 1991 — Church bows to courts

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Church bows to courts

"YOU shall not steal, no deal falsely nor lie to one another" that is the Mosaic law.

In 1850 Newman said that the church "holds that it were better for sun and moon to drop from heaven, for the earth to fail and for all the many millions who are upon it to die of starvation in extremes* agony.... than that one soul should be lost, but should commit one single venial sin, should tell one wilful untruth, though it harmed no one, or steal one poor farthing without excuse Such is the church, 0 ye men of the world and now you know her".

Brave words: in the same period Arthur Hugh Clough put the view of many of our time: "Thou shall not steal: an empty feat when it's so lucrative to cheat?

How many of our contemporaries would agree with Shakespeare's Autolycus? in The Winter's Tale: "Ha, ha, what a fool honesty is"?

In all questions of theft, fraud and the like, honesty is the keynote. The law finds it hard to define dishonesty but it has to be proved before a person can be found guilty of one of the various offences against property.

How should that be done? Should it be for the judge in a criminal trial to tell the jury what is dishonest? If so, that might produce a general consistency of definition, which could he tested and expanded by courts of appeal.

Or should the standard of dishonesty be a subjective one, that held by the accused himself, in which case the person who thinks it right for example to "steal" from the rich to give to the poor would commit no offence, and "Robin Hood would be no robber".

Neither of these concepts applies under our present law. Since 1982, the Court of Appeal has mid that, in &mining whether the accused has acted dishonestly in law, the jury should first consider whether the accused was dishonest by the standards of ordinary and honest people, and, if they find that he was, consider whether the accused himself must have realised that what he was doing was by these standards dishonest.

Not the simplest concept for a jury to apprehend. In any event the jury has to decide what are the current standards of ordinary decent people ("treat others as you would like them to treat you" Luke 6: 31).

If so, dishonesty cannot be a fixed, unchanging concept in law, but one open to variation with the fashionable views of the time. For example, judges nowadays note a reluctance on the part of juries to convict of stealing those who help themselves to their employers' goods; their ancestors would have had little difficulty in finding such conduct dishonest and therefore criminal.

Who are the people of dishonesty, the breakers of the Seventh Commandment who appear before the courts today? Any judge, if asked for his general impression, would tell you that most offences of dishonesty are committed by teenage boys, products of broken homes, often with histories of inadequate care or abuse during their childhood.

They shoplift as children, then break into cars and steal radios. Often they repeatedly "take and drive away" cars which are later recovered, as often as not in a damaged state. They break into shops and commercial premises, then into other people's homes, usually stealing cash, credit cards, jewellery and electrical equipment. When caught they are dealt with each time with a series of non-custodial sentences, which do not stop them, except perhaps temporarily, then eventually they are sentenced to be detained in what is now known as a "young offenders' institution".

The majority of such offenders stop breaking the Seventh Commandment from their mid twenties onwards, or do so with decreasing frequency. Those who do not stop become regular attenders before magistrates' courts for "petty offences" of dishonesty, or become perpetrators of serious "professional" crime.

Such are the types who make up most of the defendants in the dock. They fit in with most people's idea of men of dishonesty and they usually are men, the burglars and thieves them not us.

But there are other forms of dishonesty usually committed by people of apparent probity many shoplifters, those who "fiddle" their expenses or tax allowances. And there are those who indulge in massive commercial and financial chicanery, making necessary the formation of the Serious Fraud Office, which specialises in the prosecution of such crimes.

Why do people with none of the problems of disturbed background and social disadvantage of the conventional criminal slip items into their shopping bags or make dishonest claims?

Sometimes, but not ususlly, they are driven by poverty or need. The reasons must be manifold, but in the background do we have nowadays a blurring of distinctions between what is right and wrong in issues involving honesty. particularly in dealings with employers, and with government, be it local or national?

Or as employers are we cheating the labourers and keeping back their wages? If so, "their cries have reached the ears of the Lord of Hosts" (James 5: 4).

At the same time we live in a materialistic society, a prime feature of which is the acquisition of consumer durables, and we have greater access to instant credit than other European countries. We are pressurised to borrow more, and millions of us are said to be in considerable debt.

So is honesty itself a shifting concept? Does it depend on what the jury of the day, with their knowledge and experience, deem to be dishonest, helped in part by statutory definitions such as the belief that you have a legal right or the owner's consent to remove his property permanently?

In deciding whether such a person has stolen or been dishonest, the jury should certainly consider whether he knew that what he was doing was dishonest.

For example, a pensioner who receives free travel in his own home town, which he has not left for many years, would hardly be dishonest if he failed to pay his fare on his first visit to another town where such free travel was not available.

But for Catholics, can dishonesty be what "twelve good men and true", women included, deem it to be. Or does it have an absolute quality? I suggest that today the church should perhaps give more open attention to dishonesty and breaches of the Seventh Commandment than it has done in recent years. We should not forget that St Paul includes thieves, usurers and swindlers among those he says will not inherit the Kingdom (1 Corinthians 6: 10).

How do and should the courts deal with those who break the Seventh Commandment? The savage sentences of the past have been replaced by non-custodial options such as fines, probation orders, community service and suspended sentences.

Nevertheless Parliament, impatient with the courts for their continued use of prison sentences, has already put statutory restrictions on the use of custodial sentences for those under 21, and from October 1992 there will be general restrictions under the Criminal Justice Act on the imposition of such sentences on adults as well.

But many of the public, I suspect the majority, think that the sentences passed by judges are "wimpishn, especially if they have themselves been affected by crime.

Some of the modern approaches to sentencing for offences of dishonesty fit in with Catholic doctrine in looking not only for repentance but also restitution, to restore the ill-gotten goods, and, as far as possible, repair the injury done.

For some years compensational restitution orders have been available to courts as sentences in themselves, but they are not used overmuch, since the goods stolen have already been recovered by the police at the time of arrest or sold on cheaply, and the proceeds of sale speedily spent.

But now in addition experimental reparation schemes are in operation in some areas, either just involving repayment or, if the victim of the crime is willing, some contact between the criminal and his victim.

There is not much opportunity for such "facing-up" when serving a prison sentence, save at Grendon Underwood, an exceptional prison founded in the 1960s, where group therapy and other supportive schemes aid the prisoner not to offend as before which is no mean achievement.

The present sentencing policy of the courts does not necessarily involve the imposition of sentences of imprisonment for offences of dishonesty, save for the more serious of them.

On the other hand for rape and other offences of violence tough, lengthy sentences are expected, and it is now open to the prosecution to appeal a seemingly over-lenient sentence to the Court of Appeal.

Some might wonder what is achieved by overlong sentences for crimes of violence: they may punish the defendant, but there can be little deterrent effect since most of them are committed in brief moments of anger or lust, and probably also when the offender is under the influence of drink or drugs.

But many offences of dishonesty involve planning, forethought and time to change one's mind; the wrong-doer would have time, if he so chose, to consider the likelihood of the imposition of a prison sentence, but that would be overborn by that general confidence of the criminal Ihat he will not get caught.

We are enjoined by Our Lord, if we love him, to keep the Commandments. And therefore we must not steal and, it follows, we must not behave dishonestly.

Should this precept be a more important part of the church's teaching, not least with the young?

"To make your children capable of honesty is the beginning of education" said John Ruskin, a saying we should not forget in our materialistic world.

I respectfully suggest, as barristers used to say and some still do, that the church must not leave it to the courts to find breaches of the Commandment proved, and to punish the breakers.

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