You’ve got to have the money to buy it

Let’s talk about legal aid.

I think it’s reasonable to say that the government isn’t keen on legal aid; many restrictions and obstacles have been introduced to the legal aid scene in the last few years, including an element of means-testing. It’s still broadly the case that, if you’re taken to court and you face a prison sentence (or equally serious penalty) if found guilty, you’re entitled to legal advice free of charge. Moreover, you’re entitled to choose your own representation. You may not choose to use this right or be able to exercise it effectively, but for many defendants this is a godsend. For example, if (far from hypothetically) you’re up on a public order charge arising from a demonstration, and you happen to know that a particular law firm has a good record in holding the police and the CPS to account in similar cases, you have the right to give them the call. These rights extend to serving prisoners and non-citizens such as asylum seekers, although naturally these small groups of people only supply a small proportion of the total legal aid caseload.

The government is currently bringing forward proposals to transform legal aid for criminal cases. This isn’t hyperbole, or if it is it’s not mine: the consultation document is actually called “Transforming Legal Aid“.

The transformation that the Ministry of Justice have in mind has two objectives. Firstly, costs would be cut. The consultation document hammers on the cost-cutting drum. The proposals in the consultation document fall into two categories: those with a justification on plausible financial grounds (disregarding their impact on the quality of service) and those with a vague handwave in the direction of a possible justification on financial grounds.

However, the sums involved are, in context, trivial: the estimated total annual saving is £220 million, or just under a fifth of one per cent of public sector net borrowing for the last financial year. This suggests that the second, less overtly stated, objective may be the main motivation: that the goal is not to produce a cheaper criminal legal aid system but a radically different one. The proposals would introduce competitive tendering for the right to offer legal aid services in particular areas, corresponding roughly to the forty-odd police force areas; no more than four firms would be accredited in any one area. Clients would be assigned to lawyers rather than being able to choose them, and would have to stay with the brief they’d been given throughout the case. The proposals are designed not only to create a cost-driven market in legal aid provision but to open it up to new entrants, corporations offering a standardised and streamlined legal representation service; the Eddie Stobart haulage firm has already expressed an interest. It would still be possible to pay for legal representation of one’s choice; indeed, defendants with a high enough disposable income would be debarred from legal aid, positively guaranteeing the creation of a two-tier system. There’s more, and worse.

At an open meeting, Elizabeth Gibby of the Ministry of Justice was fazed by one particularly difficult question:

“Can you remind me of the section in the consultation paper which deals with the interests of the user of the service,” a solicitor from Oxford asked politely.

“I’m sorry; I don’t quite understand what you are saying,” Gibby replied after a pause.

“Can you refer me to the section of the paper that deals with the quality of the service provided and the effect on the quality of these proposals,” the solicitor asked again.

Gibby and her team of officials still seemed lost for words. Eventually, she asked the solicitor to respond to the consultation paper if he didn’t think that quality had been adequately covered in it.

There is nothing in the consultation paper about the quality of the service. Or to put it another way, the consultation is all about the quality of the service – it’s all about replacing the existing service with a lower-quality substitute. This matters, for very much the same reason as it would matter if we were replacing GPs or teachers with low-waged employees of profit-making companies. We know it’s a bad thing when people get the wrong advice from a banker or an estate agent or a car salesman, most of all if the person giving the advice profits from it; if there were a government scheme to make it easier for financial advisors to recommend the wrong product we’d all be up in arms. But bad legal advice is much, much worse; someone who gets the wrong legal advice can end up being named as a paedophile, or burdened with a conviction that will never become spent, or behind bars for murder, without having committed any of those crimes. (These real-life examples are from A Barrister’s Wife, a new blog which I strongly recommend.) And the proposed reforms will make bad legal advice much, much more likely.

Just to be clear, I am not suggesting that standardising legal aid would drive out professionalism, or that the only decent lawyers are those who can charge huge fees. The legal aid budget is already administered fairly strictly – any legal aid criminal defence lawyer motivated by money is in the wrong branch of the business. The problem with cost pressure and standardisation is much more insidious, and rests on a little-known fact about the criminal justice system – little-known to those of us outside the system, that is; for practitioners it’s the most open of secrets. This is the fact that nobody wants a trial. For the police, taking a case to court is laborious and time-consuming; what’s worse, it creates opportunities for the criminal (as they see it) to walk free, and for all their hard work to be wasted. The CPS are duty bound to chuck out the weak cases and those which it’s not in the public interest to pursue; when they’ve identified what they see as good, strong cases, the last thing they want is to risk an acquittal. Lawyers might be thought to have more of an interest in the courtroom show going on, but their position also makes them all the more aware of what a chancy business it can be – and their workload makes quick resolution a high priority. The answer to all these problems is a guilty plea. For the police and the CPS, a guilty plea means the job’s done: the criminal’s been charged, the criminal’s owned up, the criminal’s been sentenced. For lawyers a guilty plea may be the best they can realistically achieve for their client: someone who (in the lawyer’s judgment) is likely to be found guilty in a contested trial will be well advised to plead Guilty and gain a reduced sentence. At the same time, a guilty plea will mean that they can save some time and get on to the next case, which will always be a consideration if time is limited – and time generally is limited when money is limited. Realistically, a system with cut-price, competitive-tendered, corporatised legal aid will be a system where many more suspects and defendants are persuaded to plead Guilty, irrespective of their factual guilt or innocence. In 2000 Andrew Sanders and Richard Young described the criminal justice system as being characterised by “the mass production of guilty pleas”; if these reforms go through, they (and we) ain’t seen nothing yet.

These reforms are an assault on the legal profession and on everyone’s access to justice; they have no ethical justification and only the flimsiest justification in cost terms. They need to be stopped. Please sign the epetitions Save UK Justice petition; there’s also one from 38 Degrees. If you’ve got half an hour to spare, and especially if you’ve got anything you can cite as an organisational affiliation, please complete the Ministry of Justice’s online survey. Over the fold are some highlights from my answers.

Just another country

1. The obligatory Italian parallel

The true intentions of certain groups of young people, who had arrived at Parco Lambro with their ski-masks in their rucksacks alongside their spanners and bottles of petrol, became clear yesterday afternoon … there was the sense of an organised manoeuvre, in the true sense of the word, and police intervention became inevitable: stones were thrown from one side, tear-gas grenades from the other
- l’Unità, 29th June 1976

Last night was an extreme situation. We haven’t dealt with such co-ordinated looting before. People set out to steal. This is a type of organised crime we’ve never seen before. This was organised: I was out last night and people were asking for directions to our town centre in order to attack it. … Businesses are angry, but people are calm. They understand this wasn’t social unrest, it was something different.
- Stella Creasy MP, 8th August 2011

I understand what has led many young people to break shop windows, but I don’t consider it to be the next step in the Italian revolution.
- Rossana Rossanda, 1977

2. Three tweets about looting

@jamesrbuk James Ball
Hard to see anything overly political in the looting of an electrical store (Curry’s) on other side of town (>10miles) to #Tottenham

@kpunk99 Mark Fisher
The right wing line on #tottenham makes no sense: if it’s all down to ‘criminals’, why the sudden upsurge in ‘criminality’ last night?

@sunny_hundal sunny hundal
Seems to me, what encourages looting isn’t poverty but the expectation you can get away with it. Same applies to the banks

3. Why Cynthia Jarrett is less relevant than the Martians
This is a peculiarly unsatisfactory piece: Jonathan Jones observes that images of the Tottenham riot and its aftermath make him feel weird (they are “uncanny and reminiscent of late Victorian science fiction”), then suggests that evoking apocalyptic imagery might be “a corrective to the mis-application of history”, i.e. the temptation to draw parallels with the rioting of the early 80s. But why shouldn’t we draw parallels with the 80s – why would that be a mis-application of history? Jones’s answer, in total, is: the rioters themselves are too young to remember the 80s; Marx warned against misapplying historical parallels in the 18th Brumaire; and…

It is worth looking at images of London’s violent weekend and asking how they make you feel. Far from fitting into any historical model, they seem to me to come from an imagined London, a horror scenario of the city as a blazing wilderness

…in other words, images of the Tottenham riot and its aftermath make him feel weird. What Jones is resisting here becomes a bit clearer in an afterword:

Walking out in my neighbourhood after writing this, I found that Gay’s the Word bookshop on Marchmont Street, one of central London’s best-known gay landmarks, had its window smashed last night. A substance seems to have been thrown at the window before it was broken. This was the only business attacked on the street. So much for any attempt to see radicalism (at least of a cuddly leftwing variety) in these events.

I’ve got to say, I’m gutted to hear that Gay’s the Word has been attacked & hope they get back to normal before too long. (That said, I’m not aware of any trouble in Bloomsbury on Sunday night – this could just be a nasty coincidence.) But there’s a more important point, which is that – as far as I can tell – nobody anywhere is reading a “cuddly leftwing radicalism” into the riots; certainly nobody is saying that looting Curry’s in Brixton was a political gesture. The “Robin Hood” interpretation of the rioting is a strawman, just as much as it was when Rossanda dismissed it in 1977: Jones (and James Ball) can trample it all they like, but it won’t dispose of the real question posed by the riots.

4. Where are we going, and why are we all in this handcart?
What people are saying (self included) is that politics doesn’t stop when crime starts. There are reasons why people steal and smash windows; more importantly, there are reasons why most people don’t steal and smash windows, most of the time. (Sunny was more or less on the right track here – but I don’t think the calculation that you wouldn’t get away with it is the only reason why people tend to obey the law, or the most important one.) One or two people whose behaviour isn’t governed by our usual reasons to obey the law is a problem for the police, the social services and politicians, in that order. The problem becomes political first and foremost when lots of people start acting differently – when all those reasons suddenly stop working in a particular place and time. And then, as Mark says, the question why can’t be avoided. More to the point, the question why is an interesting question – and it’s one that politics is much better equipped to answer than evocations of Wells or fantasies of manoeuvres organised by lurking criminal networks, vast and cool and unsympathetic.

What do I think it’s all about? A couple of quotes, lifted from comments on Guardian posts:

Even if the rioting is just an opportunity to lob stuff at the police and loot local mobile phone and shoe shops (as it appears to be in Enfield) it’s obvious something has been brewing for a while. It may be disorganised and opportunistic but still speaks of a disatisfaction with things as they are.

There’s a widespread myth that law and order is preserved by police, politicians and other forces of authority. Not true. Never has been. If we all decide to go out and chuck a dustbin through Argos’s window and help ourselves, it would take about 15 million coppers to contain it. We actually have about 150,000.

Law and order is kept by a collective acceptance of mutual goals. If, as a society, we look after each other, offer everyone a share and a stake in the common weal, maintain some semblance of a Rousseauian Social Contract, then the vast majority of people will mostly stick to the rules without ever needing to see a police officer. When people lose that sense of being looked after, no longer feel part of society, no longer feel like they have any kind of share in any kind of collective, the ties that bind begin to be broken.

Rioting, especially the type of vandalism and looting we’ve seen in London, is a sure sign that the social contract is unravelling around the edges. In the days and weeks and months to come, we shall see how far it has frayed.

A Socialist Worker friend of mine once explained to me in some detail how every Prime Minister since Attlee had been to the Right of the one before; I’m not sure how he got over Macmillan/Wilson, but he made quite a good case for Heath/Wilson. (This was before Thatcher/Major). I wouldn’t go that far, but it does seem pretty clear that certain trends that were set in motion during Thatcher’s first term have never really been reversed. Over the last 30 years, work at every level has been steadily proletarianised: employment is nothing but a contract providing money in return for a working day, and a contract that is ever easier for the employer to revoke. Business values permeate all areas of society. The overriding goal, at all times, is to turn a profit: anything that contributes to that goal is good, anything that doesn’t is dispensable at best. The service ethic – the idea of taking pride in a job well done, at whatever level; the idea that the job you do is a way of contributing to a society where ‘we look after each other’ – is little more than a nostalgic fantasy. The institutions that used to nurture it, and whose daily workings made it into a lived reality, have been asset-stripped and hollowed out by ideologues with MBAs. Social life has been radically privatised, and deinstitutionalised in the process – party membership, union membership, local authority employment have dwindled away, without anything taking their place. One of the things that gets eroded in the process is deference to authority – because who are these authority figures anyway? Just ordinary people, just interchangeable employees doing an interchangeable job – even if the job involves chasing people with sticks. (And then they start talking about a Big Society!)

What’s it like to grow up in this world – a world where your only consistent role is to ‘consume’, because nobody, at any level, has any interest in you as a worker? What’s it like to be told that you’ve got to take whatever job you can get, on whatever pay you’re offered, and not to depend on the job still being there for you next year or next week? What’s it like to be told that you’ve got to prove you’re actively looking for work before you can sign on as unemployed – or that you’ve got to prove that you’re incapable of work before you can claim disability benefit – and you’ve got to prove these things to someone who won’t get paid if they believe you? And what’s it like to have grown up in a world like this, and then to be told by a government of unprepossessing Old Etonians that you’ve had it far too easy up to now? And then, what’s it like to read that those same politicians, and the people who write the papers you buy, and the police who keep everything under control, are all involved in a network of corruption and deceit?

What we’ve got at the moment isn’t a protest movement, or even a wave of riots; if anything, it’s a particularly long and broad wave of looting. And looting isn’t a political act – but it sends a definite political message. It says, I’m not going to wait any longer; I’m not going to wait for next month or next year when I could have what I want now. It says, I’m not going to play by the rules of your system; I don’t know what’s going to happen next, but right now I’m having it. It says, I’m not going to live in your world any longer; I don’t know where I’m going to be next week, but right now I’m just going to do what I want.

5. A concluding unscientific postscript
Paul:

while people may have come together to riot and loot, they are likely to be doing so for different reasons. Some may be angry that they have no job.  Some may be keen to have a free mobile handset. Still more may be there because they fear their friends would call them a “pussy” if they did not attend.  Others may be there because they want to be able to talk about it with their mates in the days and weeks to come. For most indeed the reasons will not be fixed, and may change during the evening. I am sure some will have gone down for a look, and found the temptation of a broken-into off-licence a little too great.

We can, ultimately, establish no single motivation, and it is useless to try.  It just makes you sound like Theresa May. What we can say, though, is something about comparative incentives.

Most people from richer areas, who have jobs or who have a good chance of getting a good job, will not riot in the next day or few because their retaining their job or job chance through not getting a criminal record is greater than any of the other incentives I have listed above. … People from poorer, more deprived areas and backgrounds are rioting for different, shifting motivations, but they are doing so because they do not have enough invested in what the state can offer them to outweigh the benefits of that rioting. That is, the state has temporarily failed, because a significant group of people in London have decided it is just not worth living within its jurisdiction.

And Laurie:

People riot because it makes them feel powerful, even if only for a night. People riot because they have spent their whole lives being told that they are good for nothing, and they realise that together they can do anything – literally, anything at all.

To end on the ghost of a positive note, that sense of collective power – that if you get a few people together, suddenly the rules don’t have to apply any more – is at the heart of a lot of radical mobilisation, although intellectual honesty compels me to note that it’s also at the heart of counter-revolutionary mobilisations and pogroms. Either way, a lot of the kids who were out last night are going to remember that feeling – is it ridiculously optimistic to hope that some of them will draw the right lesson (“don’t forget, we can also build”)? But that’s some way off. For now, I’m afraid things are going to get worse before they get better – I don’t see why the looting shouldn’t kick off again tonight (or any other night, for that matter), and the crackdown when it comes is going to be no fun at all.

Scaring the nation

Antonio Lo Muscio probably wasn’t a very nice guy. In 1976 he was involved in an armed attack on a senior anti-terrorist police officer, which left one of the officer’s bodyguard dead. Three months later he was sitting on a bus with a member of the same armed struggle group, who was identified by a policeman who chanced to be on the bus; Lo Muscio shot him and the two made their escape.

A bit of a scary individual, then, and rather seriously mistaken about the degree to which extreme violence could play a constructive role in revolutionary politics. But I don’t think he deserved to die (another three months on) like this:

Antonio Lo Muscio … was surprised by carabinieri while sitting on the steps outside a church in Rome having something to eat with two other members of the same group. He tried to run and was disarmed, but was hit by a burst of machine-gun fire. He was finished off by a pistol shot to the neck while he lay wounded on the ground.

The two militants who were with him, who were injured, were arrested.

(To judge from another account, the two women who were with Lo Muscio did not try to escape but were beaten up anyway, to the point where at least one of the two was taken away in an ambulance.)

The quotation above is from the invaluable collection La Mappa Perduta, which also records a statement by Lo Muscio’s sister:

a few days earlier he had said to me, “Prepare yourself for the worst – if they get me this time they won’t send me to prison, they’ll just do away with me. The police and the carabinieri travel with my picture on their dashboards.” And that’s just what happened. … The carabiniere fired at my brother with a machine gun while he was running away without a weapon in his hand; he was wounded and fell face down to the ground, defenceless. The carabiniere went over, emptied the magazine of his machine gun into him, then finished him off with a pistol shot to the head, behind his left ear.

What remains interesting about the Lo Muscio killing at this distance is the press reaction. The Corriere della Sera was in no doubt, hailing “the carabiniere who killed Antonio Lo Muscio, the most dangerous political killer on the loose in Italy” as a “man of courage”:

he did not shoot until Lo Muscio had opened fire on him and his colleague. Then he pursued the terrorist, loosing multiple bursts from his machine gun and defying the shots from his opponent’s Colt Special

The Communist-aligned l’Unità laid off the heroics but gave an even more unequivocal account:

Lo Muscio died instantly, struck full in the chest by a burst of machine-gun fire while he attempted to flee with pistol in hand, having already opened fire against the carabinieri

Did Lo Muscio fire his pistol at the carabinieri? L’Unità and the Corriere both say so; LMP doesn’t say either way. Was he holding a loaded weapon – or posing any immediate danger – at the moment he was shot? Here the papers are less believable: both try to imply that he was, but don’t assert it outright. LMP specifically says that he wasn’t. Was he killed by machine gun fire as he ran? L’Unità says he was; the Corriere suggests that he was; LMP specifically says that he wasn’t.

There are two different stories here. One is of the carabinieri taking a broad view of the concept of ‘self-defence’, shooting dead someone who had shot at them (and, on past evidence, would shoot at them again) but wasn’t posing any imminent threat at that precise moment. The other, more straightforward but bleaker, is of the summary execution of an unarmed man. Either one could be true; in theory, at least, which one we believe to be true depends on how we think the details of the story stack up. The problem is that people – including journalists – are always inclined to believe some kinds of story and not others – and that affects the way that the details of the story are perceived and presented. Details that are particularly hard to fit into a preferred narrative will, at best, tend to be reported reluctantly and with reservations; at worst, they will be distorted, caricatured and ignored.

Daily Mail:

Duggan, a known offender from London’s notorious Broadwater Farm Estate, became aware that he was being followed and opened fire on the officers. He shot the officer from Scotland Yard’s elite firearms squad CO19 in the side of his chest with a handgun. The bullet lodged in the police radio that the undercover officer was carrying in a side pocket. Armed officers shot the gunman dead seconds later.

Residents said at least three shots were fired when officers swooped during the evening rush hour at about 6.15pm.

Guardian:

Initial ballistics tests on the bullet that lodged in a police officer’s radio when Mark Duggan died on Thursday night show it was a police issue bullet, the Guardian understands.

The Guardian’s crime correspondent, Sandra Laville, reports:
…
The bullet which was found lodged in the radio of one of the officers at the scene is still undergoing forensic tests. But reliable sources have said the first ballistics examinations suggested it was a police issue bullet. These are very distinct as the Metropolitan Police uses dum dum type hollowed out bullets designed not to pass through an object.

The early suggestion from the IPCC was that the Met officers had returned fire after someone in the minicab opened fire. But the result of the ballistics early test suggests both shots fired came from the police.

Emphasis added.

Update Guardian, 8th August:

the C019 firearms officer has said that he never claimed Duggan had shot at him.

The firearms officer is understood to have told investigators that he opened fire because he believed he was in danger from a lethal weapon. Two shots were fired, it is understood; one hit Duggan and one missed, lodging in another officer’s radio.

Well, that didn’t last.

Forgive and forget it

From today’s news:

In his speech to the state department on Thursday, Mr Obama stated overtly for the first time that the peace talks should be based on a future Palestinian state within the borders in place before the 1967 Middle East War. “The borders of Israel and Palestine should be based on the 1967 lines with mutually agreed swaps, so that secure and recognised borders are established for both states,” he said.
…
But speaking in the Oval Office after their meeting, Mr Netanyahu flatly rejected this proposal, saying Israel wanted “a peace that will be genuine”.
…
Israel was “prepared to make generous compromises for peace”, he said, but could not go back to the 1967 borders “because these lines are indefensible”. He said the old borders did not take into account the “demographic changes that have taken place over the last 44 years”.

Quoth Wikipedia:

Leo Rosten in The Joys of Yiddish defines chutzpah as “gall, brazen nerve, effrontery, incredible ‘guts,’ presumption plus arrogance such as no other word and no other language can do justice to.” In this sense, chutzpah expresses both strong disapproval and a grudging admiration. In the same work, Rosten also defined the term as “that quality enshrined in a man who, having killed his mother and father, throws himself on the mercy of the court because he is an orphan.”

Or the man who, having kicked his neighbours out of their house and moved his brother in, admits to stealing the house but explains that he can’t possibly give it back, because then his brother would have nowhere to live.

This, also from the BBC story, struck me as a particularly resonant one-liner:

The settlements are illegal under international law, although Israel disputes this.

PS I will get back to Norm and bin Laden, if anyone’s wondering. I’ll admit that I was under a slight misapprehension, inasmuch as I assumed that the reference to the September 11th attacks as “an act of war” wasn’t intended literally; I still don’t believe that the literal interpretation can be sustained without a great deal of effort, or that trying to sustain it is a good idea. However, that clearly is how Norm has been thinking, so I’ll have to give it some consideration.

He’ll drop you where you stand

I can’t help wondering where, exactly, Norm is going with this one (quote reordered but not reworded).

Israel’s killing of Ahmed Yassin:

UN Secretary-General Kofi Annan: “I condemn the targeted assassination of Ahmed Yassin. Such actions are not only contrary to international law but they do not help the search for a peaceful solution.”

EU foreign policy chief Javier Solana, described the assassination as “very, very bad news”.

British Foreign Secretary Jack Straw said: “Israel is not entitled to go in for this kind of unlawful killing and we condemn it. It is unacceptable, it is unjustified and it is very unlikely to achieve its objectives.”

Killing Bin Laden:

UN Secretary-General Ban Ki-moon hailed Osama bin Laden’s death as a key turning point in the struggle against terrorism.

EU foreign policy chief Catherine Ashton said: “I would like to congratulate the U.S., pay tribute to its determination and efficiency in reducing the threat posed by terrorists and underline the close cooperation between the EU and U.S. in the fight against terrorism.”

Prime Minister David Cameron said that bin Laden’s death would “bring great relief” around the world.

And so on (the page linked also cites reactions from France, Norway, Brazil, Japan and the Vatican).

We could consider explanations for this apparent disparity that Norm and his source overlook. Most obviously, bin Laden was an effectively stateless individual who was waging (or perhaps had waged) a transnational campaign of political violence against multiple states. There was no obvious single cause around which negotiations or a peace process might have been initiated; no internationally recognised grievance on which bin Laden was recognised as a spokesman; no mass movement to demand negotations with bin Laden; and no actual or aspiring state-level actor in whose name bin Laden could have negotiated. The contrast with Ahmed Yassin is glaring. Whatever else he did, Yassin was an actor in the struggle for Palestinian statehood – a cause that most of the world recognises as worthy, and which most of the world hopes can be resolved peacefully. Some enemies, in other words, are better qualified to be shot down like dogs than others. Moreover, sometimes shooting down your enemies like dogs is just bad politics, exacerbating a situation that wiser tactics could ameliorate (“It is unacceptable, it is unjustified and it is very unlikely to achieve its objectives.”) There’s also a third explanation, which I’m afraid is probably just as significant as the other two: the world is wearily accustomed to the US going pretty much where it wants and doing pretty much what it wants, and doesn’t even bother to protest about it. However, this licence seems only to extend to one nation at a time. We could call that inconsistency, or we could just be thankful for small mercies.

But let’s, for the sake of argument, scrub out all those objections to the equivalence Norm is proposing here; let’s just say that in 2004 one country rubbed out an evil terrorist mastermind, in 2011 another country bumped off another evil terrorist mastermind, and the world’s reactions were strikingly different. What’s the implication? When we heard about the assassination of Yassin, should we have rejoiced at that news? And what’s the implication of that? Norm has always denounced the use of double standards where Israel is concerned, so presumably the lesson of Abbottabad is that it should be open season for evil terrorist masterminds wherever they may be. State see terrorist, state kill terrorist. No man, no problem. And if people say it’s unjust, or it’s not lawful, or it’s just bad politics… oh, please…

Terrorism is scary stuff – the clue’s in the name – but it’s never worried me as much as counter-terrorism, and this argument of Norm’s reminds me of why that is. As it happens, I do draw a lesson from the Abbottabad execution, if that’s what it was (if it’s true that four people were killed, only one of whom had drawn a weapon, a better word might be ‘massacre’). I haven’t bothered blogging about it before now, partly because it seemed pretty obvious but mainly because Dave had said it already. But maybe it could do with saying again: state-sponsored assassination is wrong. State lawlessness is not a protection against individual lawlessness: rather, it’s far more dangerous, partly because of the vastly greater resources that the state has at its disposal and partly because a law-governed society depends on the state itself being governed by law (as Jeremy Waldron has argued, the rule of law is prior to the concept of law).

If you subscribe to a kind of extreme Hobbesian view of the state, in which the sovereign has both the power to make law and the power of life and death, so that a correctly targeted state killing must be legal – it’s his state, his rules – then you shouldn’t have any problem with the death of Sheikh Yassin, or Osama bin Laden, or for that matter Mairead Farrell, Sean Savage and Danny McCann. I didn’t think Norm held that view, though, and – more to the point – I can’t see any good reason why anyone would. So where is that argument going?

Cheers then mate

The second point I want to make about the debate over last Saturday’s violence (following on from the previous post) is about the representation of violence in the media.

There’s a widespread view that the black bloc’s approach was wrong because of how it looked – specifically, because of how it looked on TV. Thus Christopher Phelps on Sunday:

Here is what the story for yesterday’s demonstration should have been: half a million marchers, in the largest show of labour union strength in decades, turn out to oppose the government’s draconian cuts.

Here is what the story became: a few hundred anarchists, many dressed in black, trashed businesses and clashed with police on Oxford Street and in Trafalgar Square.

The anarchists, calling themselves the black bloc, stole the headlines from the 500,000 other protesters who’d travelled from all over the UK to express the refusal of millions to accept austerity as the consequence of a crisis they did not create.

and commenter Andrew on CT:

Demonstrations matter only insofar as they impact public perception. You have x minutes on the news, y column inches, and z number of reported salient facts to make that impact.

It makes very little difference whether those actually at the demonstration saw a mostly peaceful gathering; what matters is x, y, and z – at least if you’re interested in effecting change.

A small group of anarchists can switch over any number of those z salient facts, x TV minutes, and y column inches to negative.

Call me an old pro-situ, but I get very twitchy when I see it argued that what matters about a demonstration is how it looks on TV. It reminds me of something Joe Strummer (and a few friends) said in 1977, in the middle of a rendering of “What’s My Name” that was being shown on Revolver. Sang, rather – he inserted an extra verse, which went like this:

JOE: Here we are on TV!
What does it mean to me?
[looks at crowd]
What does it mean to you?
JOE AND CROWD: F*** ALL!

I remember that feeling: what mattered was to do it yourself, and if you couldn’t do that what mattered was to be there. And if you couldn’t do that, well, you could read about it in the NME, and read the letters the following week saying the first writer got it all wrong, and try to get along next time. Punk could disrupt TV, but it couldn’t work within TV any more than it could work within the marketplace – what would be the point? (Punk didn’t last.)

Radical politics, same same. As a general thing I think we all pay far too much attention to rally-as-spectacle as distinct from rally-as-collective-event. I’ve been on marches and demos, and I can confirm what Simon and Edd say:

A great thing about protests is the transformations in political consciousness that take place: people no longer feel alone, they feel empowered and part of something big; they are prompted to think about the issues that moved them to protest; they form political friendships.

There are moments, on huge demonstrations, where you can see and feel the ocean of people surrounding you, the jokes being cracked, the songs being sung, the drums beating. You lose a friend in the crowd, swap an anecdote with a stranger, and you think, “How can this possibly not make any difference?”

Even at a small demo of a couple of hundred people, the atmosphere changes; life feels different. Collective action seems like a reality, a possible way of living – in fact, for the duration of the demo collective action is a reality, and you’re living it. This change in the air is only temporary, and it has built-in limits. To continue the quote from Edd:

and you think, “How can this possibly not make any difference?”

Then you walk past Parliament and Downing Street, and you remember that just marching never makes any difference.

But it’s a temporary experience that can be returned to and built on. Back to Simon:

Uplifting mass protests, though, come with a danger attached. Unless they become the beginning of something sustained, with the capacity to keep a large number of ordinary people engaged, they can serve to simply defuse anger at the expense of political change. … This must be the first mass demonstration against this government, but not the last. There have to be regional events, industrial action, and occupations.

If it becomes the beginning of that sort of process – or, more precisely, another step in the development of that process, which (future historians may judge) began last autumn with the university occupations – the march will have done its job. What it looked like on TV is neither here nor there.

I’ve been particularly bemused by Harry’s argument on CT, seconding Christopher Phelps’s piece and comparing the march with the (huge and inspiring) mobilisation in Wisconsin. Harry:

We’ve lost in the short term (but so have the Brits), and yes, now, the issue is reversing some of the damage (as in the UK case). But we were not, according to the opinion polls, smeared as extremists or as having done $m of damage. That is, the party in power attempted to smear us as such, but failed … People are upbeat and optimistic, which enables them to do the dreary footwork of going to meetings, taking petitions door to door, making the arguments to their recalcitrant neighbors and workmates … 150 anarchists (or whatever they are) would have had a good shot at making the smears successful.
…
I think CP’s original piece was a bit of a vent, partly probably because the Brits seem so inured (as lots of you do) to this kind of thing and its effects, accepting that it will happening and discounting the effects of good press, or of negative press that can’t actually get a grip on the public because there is nothing to back it up. He doesn’t have a solution, nor do I, but it sounds as if nobody here thinks these folks can be more marginalised than they already are. Maybe that’s right, but its hard to believe.

Here’s why I’m bemused:

good press

I remember being at a union meeting, about 25 years ago, discussing possible strike action (it was a bit easier in those days; the first time I went on strike the decision was taken at a mass meeting, would you believe). A senior manager who had come along spoke at some length about how striking just now couldn’t achieve anything, there was this going on and that just round the corner, so really it was the wrong time to strike. Someone asked – either very naively or not naively at all – whether, in that case, he would support us if we called a strike in three months’ time. The manager actually laughed at this – No, of course not! I’m management!

I feel very similar about the possibility of demonstrations ever getting ‘good press’ in this country – and about the related question of the policing of demonstrations ever getting a bad press. There is a narrative of the events of last Saturday which assumes that the overall outcome was negative and locates all the responsibility for this in the black bloc: something like

1. Mass peaceful demo
2. Violence by anarchists
3. Police are forced to attack anarchists to prevent violence
4. Media are bound to cover anarchist violence, because it’s more newsworthy than the peaceful demo
5. Demonstrators smeared as vandals and hooligans, lose popular support

(More radical commenters may substitute “are forced to” at 3. with “take the opportunity to”.) By contrast, in Wisconsin there was

1. Mass peaceful direct action
2. No violence by anarchists
3. Police not forced to take on anarchists
4. Media cover peaceful demo
5. Demonstrators not smeared as vandals and hooligans, retain popular support

Which sounds great, and I’m glad the mobilisation is going so well in Wisconsin. But I’m also slightly baffled, for three reasons. Firstly, I’ve never believed that the police reaction to a demonstration is something that can be controlled by the demonstrators – any demonstrators. The relationship between political activity, heavy policing and arrests for public order offences is very well established in this country; it goes back to Duncan v Jones 1936, in which the court effectively endorsed the right of a police officer to prevent a public meeting taking place if the officer anticipated that disorder would result. The police, the logic runs, are there to prevent disorder, which may involve restraints on political activity; if the form taken by these necessary restraints involves physical force (or the denial of freedom of movement), too bad. This way of thinking gives limitless discretion to the police in deciding when a forceful response is needed: it does nothing to prevent them from escalating the level of confrontation unnecessarily, or even from provoking a level of violence which will justify the use of superior force on their part. The first of these certainly happened in and around Trafalgar Square on Saturday, and from what I saw (on TV!) I wouldn’t rule out the second.

Secondly, I’ve never believed that demonstrators have any influence over the media coverage of the demonstration, either. Where there is violence – any violence – it will be focused on, and the narrative of the Violent Minority who Spoil Everything will get trotted out. (Interestingly enough, where there is mass violence, as at Millbank, the narrative of the Violent Minority will still get trotted out.) In the unlikely event that a demo passes off completely peacefully, they’ll find another stick to beat it with – I remember coming home from a huge Anti-Nazi League demo with my mother (who had gone along with the Christians Against Racism And Fascism contingent) and hearing the BBC newsreader explain that the size of the demo was all down to “the Trotskyist Socialist Workers’ Party, which has been recruiting in schools”. I still watch the news – let’s not get all this out of proportion; I still call the police if I get burgled, too – but, when it comes to reporting protest, the media are not on our side and never have been. In the case of last Saturday, I don’t believe the day would ever have ended without a few breakages and some graffiti – or, for that matter, without the Met getting some kettling action; consequently I don’t believe the media coverage would ever have been positive or unbiased or balanced or respectful. Everything would always have been Spoilt.

Thirdly, and to end on a positive note: after all that, I don’t believe the anti-cuts movement has lost any popular support. Or rather, I don’t believe it’s lost any of the popular support that it had. Like Simon, I started the day following Twitter (#march26, #26march or #march26march?), and like him I was struck by the level of hostility displayed by a few people. And this was while the coaches were still on their way – people were denouncing the march before it had even set off, much less been ‘hijacked’ or ‘eclipsed’. Some people really hate trade unionists; some people really hate workers in the public sector generally. Some people are convinced (at least for as long as it takes to compose a one-line message) that real workers – good, honest, British workers – cross picket-lines, work Saturdays and don’t get a pension, and that the worst injustice being done to these hardy souls is the extraction of income tax from their pay. And, needless to say, some people hate the whole idea of collective action. We didn’t lose the support of any of those people, and it’s hard to see how we could have gained it. So who did we lose? Are there a lot of people out there who didn’t go on the march and don’t know anyone who might have gone, and who might have supported it but for the intervention of the violent anarchists? Even if there are, can we be sure that taking the anarchists out of the picture would have resulted in media coverage that was entirely supportive, or police reactions that were entirely proportionate and restrained?

I don’t think we should be too quick to heap blame on the violent minority: partly because they aren’t entirely to blame for the impression that’s been created around them, and partly because that impression may not have done all that much damage. But there’s also a third reason, which is that the demand to identify, isolate and denounce ‘violent extremists’ is a very old one, and one which rarely does the Left any good – or is meant to. I’ll get on to that in the next post.

An extremist scrape

Our Margit declares if hoo’d cloas to put on,
Hoo d go up to Lundun an’ see the young Queen,
An if things didn’t alter when hoo had been,
Hoo swears hoo would fight, blood up to th’een.
Hoo’s nought agen t’queen, but hoo likes a fair thing,
An’ hoo says hoo can tell when hoo’s hurt.
- “The Four Loom Weaver” (trad., 1830s)

Well, I didn’t go – partly influenced, I confess, by dystopian fantasies of mass kettling – and it went off brilliantly:

a wonderful, spirited, and conviction-driven multitude of ordinary people, representative of the British population in their diversity, marched in their hundreds of thousands.In doing so, they made it clear – we made it clear – that we simply will not accept the dismantling of our welfare state and public services

And I’m not going to qualify that. The march went off brilliantly. Half a million people, give or take, assembled in the middle of the capital to protest against the government’s attack on public services. Activists, burnt-out veterans and absolute beginners, they came from all over the country – from the post-industrial northwest to the Tory shires – and they marched together. It was a truly remarkable march and it went off brilliantly.

Shall we look at that picture again?

I was right the first time: that was what last Saturday looked like. Cheerful, united, determined and very, very large.

If you stop here you won’t miss much.

The barren weeks, the amnesiac years

Apparently it will be two years before we find out what the Labour Party stands for in 2011 (or rather 2013). In the mean time, presumably, the Shadow Cabinet can just make it up as they go along – I mean, now that Blairism doesn’t work any more, what else could they do? It’s not as if they could learn anything from the history of the Labour Party before Blair. Or perhaps they’re just working on the basis of waiting for the government to announce something so that they can say “and we’re against that!”.

That’s certainly the kindest explanation for this appalling story.

Following a ruling by the European Court of Human Rights, ministers propose to lift the ban on votes for prisoners for those serving jail sentences of up to four years. Although David Cameron stressed he was doing so reluctantly, the Liberal Democrats have long argued that prisoners should not be denied the right to vote. Labour delayed a decision on implementing the Court’s ruling before last May’s election but is now ready to form an unlikely alliance with Tory MPs in an attempt to force a U-turn. More than 40 Tories are said to oppose the Government’s plan – potentially enough to defeat it with the backing of the Labour Opposition. Labour wants the right to vote limited to inmates serving up to one year in jail. That would restrict the number to 8,096 of the 83,000 people in Britain’s jails

As it happens, the ECHR isn’t demanding that all prisoners in British jails be given the vote; the court’s ruling allows for national governments to take a view on withdrawing the franchise from particular categories of prisoner. What it has demanded – with the force of law, or at least the force of severe diplomatic embarrassment – is that the blanket ban we’ve had since 1840 be replaced by some kind of detailed policy with some kind of justification. (I doubt that the ECHR would find Labour’s mean-spirited amendment satisfactory – it seems designed to target the category of “won’t be in very long, probably didn’t do anything too bad, and best of all there aren’t very many of them”. But committing the government to yet another position the ECHR won’t accept, thus booting the question into the long grass for another year or so, may well be the object of the exercise.)

Either way – whether this is a wrecking amendment or just a vindictive attempt to weaken the legislation – Labour seem determined to attack the Tories from the Right:

Sadiq Khan, the shadow Justice Secretary, expressed concern that more than 28,000 inmates would be allowed the vote under the Coalition’s proposals. He said: “This is a slap in the face for victims of crime. We have already seen the Conservative-led government break their promise on knife crime. Now they are also giving thousands of offenders the vote.”

The Tory manifesto promised to bring in mandatory custodial sentences for anyone found carrying a knife (yes, carrying). It’s an insanely draconian policy, which they can never seriously have intended to implement. As for the notion that victims will in some way be adversely affected by ‘their’ offender having the vote – how? why? If this is what victims of crime want, then victims of crime are wrong. Actually I doubt that victims of crime want any such thing; left to his own devices, I doubt that Sadiq Khan would come up with this stuff either. What we’re seeing here is (in Andrew Ashworth’s phrase) “victims in the service of severity” – and, what’s worse, severity adopted cynically, in the service of winning votes (from the kind of people who like the idea of prisoners suffering).

Tory MPs also reacted angrily to the disclosure and signalled their willingness to work with Labour on the issue. Philip Davies, Tory MP for Shipley, said: “I have yet to find anyone on our benches who agrees with it. It is totally unacceptable to allow prisoners the vote. The whole point of going to prison is that you lose your liberty; one of your liberties is the freedom to vote.”

“Disclosure”, by jingo. That would be the shock news that the European Court of Human Rights found against Britain’s blanket denial of the vote to prisoners in 2005, since which time precisely nothing has been done to bring Britain’s laws in line with its international obligations. If anything, the news is even older than that: the ECHR’s ruling is entirely in line with the common-law position, as expressed by Lord Wilberforce in 1982. Ruling on a case in which a prison governor claimed to have the right to read prisoners’ mail – essentially on the grounds that it was his house and his rules – Wilberforce found against the governor and stated:

under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication

“Expressly or by necessary implication”. Contra the repulsive Davies, this means that a prisoner no more forfeits his right to vote than he forfeits, say, his right to wear clothing in public or his right to speak without being spoken to – or, for that matter, his right to sanitation (yes, the fine old British tradition of slopping-out was found to constitute a breach of human rights law in 2004, and about time too). Certainly it is open to a judge when passing sentence to stipulate that conviction for a particular offence – or type of offence – should lead to forfeiture of the vote; it is even open to Parliament to legislate along those lines. But the blanket denial of the vote to prisoners is almost impossible to bring into concordance with Wilberforce’s statement.

And it’s straightforwardly impossible to reconcile with the ECHR’s 2005 judgment – which is where we came in. The last government’s effective refusal to legislate in line with the ECHR’s judgment, dragging its feet for all of five years, was shameful: it contrasts very unfavourably with the actions of the governments of Ireland and Cyprus, both of which introduced votes for prisoners in 2006. The coalition’s grudging acknowledgment of the reality of the situation is to be welcomed (grudgingly). For a Labour opposition (a Labour opposition, to misquote Neil Kinnock) to campaign against it, lining up with troglodytes like Davies, is really disgusting. It seems that Miliband and his circle are still doing politics the same old way: a nervy attention to the Sun and the Mail from day to day, combined with a kind of dogmatic ignorance of every liberal or socialist principle their party has ever stood for. Why, this is New Labour, nor are we out of it.

Late in the evening

I agree with Ken Clarke, up to a point. A prison sentence is a bad thing to inflict on anyone, and one which often has bad effects on the lives of those who suffer it; the government’s priorities should be to maximise the chances of good outcomes, through education and training opportunities, and to minimise the number of people who go to prison in the first place. If that’s what Ken Clarke is saying, then I’m with Ken Clarke. I’ll add that our government should follow the Scots in abolishing short sentences, many of which only last long enough to disrupt offenders’ lives and exacerbate the problems they already have; and they should certainly abolish the monstrosity of Indeterminate Sentences for Public Protection. It seems strange to place any hope for liberal reform in a Tory government, but – sadly – not as strange as it would have been to place those hopes in New Labour. (Incidentally, isn’t it funny the way we’re not talking about the crucial moderate and liberal influence being exerted by the Lib Dems? Yellow Tories, now and forever.)

So I’m a bit wary of Dave’s Conservative contradictions on crime and punishment. He’s certainly right about the contradiction between Clarke’s decarceral rhetoric and policies which will cut both welfare and jobs; Tory social policy is going to make for a landscape of unparallelled bleakness for the released ex-offender to return to. I’m just not sure that this tells against Clarke in the way Dave seems to think. I’m also concerned about a rather dodgy bit of cost-benefit analysis which Dave quotes, apparently approvingly. Dave:

Several academics – such as Prof. Malcolm Davies – have come forward to suggest that actually leaving potential re-offenders at large (and even with continuing educational measures, reoffending jumped by 8% from 2006-8) costs more than prison.

I don’t know about ‘several’ (more than two?) but here’s Davies.

Prof Malcolm Davies, from Thames Valley University’s law school, said sending criminals to jail was often the cheapest option.

“It costs a lot more to have persistent offenders out on the street,” he told the BBC.

“If you add in the full cost, other than sending to people to prison, which is the processing of the police, the prosecution time, the cost to insurance, the cost and trauma to victims.”

(BBC News story, but taken from an aggregator – the current version of the story doesn’t include the Davies quote.)

This poses two questions. Firstly, can it possibly be true? Secondly, would we want to act on it even if it was? The reoffending rate for released prisoners currently stands at 70%, up from 50% when Michael Howard took over as Home Secretary from Ken Clarke (for it is he); it’s reasonable to assume that this increase has something to do with the change in prison regimes brought about by Howard, for whom prison was all about locking up the bad men and not so much about education and training. But let’s assume that Clarke only manages to make a small dent in the reoffending rate, and it goes down to 66%. Then let’s assume that the aggregate cost of their offending is 1.6 times what it would have cost to keep them inside. So keeping all of them inside would be cheaper than letting them out. Of course, releasing the 34% who aren’t going to reoffend would be cheaper still, but unfortunately we can’t know who they are in advance, so we’re a bit stuck. So the only revenue-neutral option is to do a Minority Report on the 66%, incarcerating them in advance of the crimes they would have committed if they’d been released – and do a massive, unpardonable injustice to the 34%.

Then it gets worse. We’ve saved money – or at least broken even – in year 1, but what do we do the next year? Remember, we don’t know who the likely reoffenders are. For any given group of 1,000 prisoners, all we know is that it will cost society £38 million (say) to keep them all banged up, while – given our 66% reoffending rate multiplied out by victim costs, police costs, prosecution cost, insurance cost, other tax and so forth – it will cost £40 million to release them all. So when we look at each individual prisoner, we see an average loss to society of £2,000 per year if we let him out. But if prisoner X being free in year 1 costs £2,000 more than keeping him inside, then the same will also be true of year 2, year 3 and ever year thereafter until he’s too decrepit to offend. Ergo we should give everyone a life sentence for the first offence, with eligibility for parole only when they’re too old to hang out with drug dealers, too rheumy-eyed to hot-wire a car and too feeble to leg it when the police show up.

Either that, or we should try understanding a little more and condemning a little less; find fewer pretexts for locking up our fellow citizens and put fewer obstacles in the way of releasing them; and put most effort into giving offenders chances to go straight, both in prison and out of it. New Labour’s term was a long 13 years for anyone hoping for liberal reform to the criminal justice system. Let’s hope the Tories, in spite of everything – in spite of being Tories, apart from anything else – will do better.

A parting on the right

The police forces of England and Wales implemented a new set of rules for recording crimes in 2002-3, following earlier piecemeal adjustments in 1998-9. The National Crime Recording Standard (NCRS) was designed to be more victim-friendly than the counting rules which had preceded it: rather than the police insisting on corroborating evidence before a crime was recorded to have happened, a crime was to be recorded whenever one was reported unless there was evidence to the contrary. There was a certain amount of resistance to these changes, which had the direct effect of apparently increasing the crime rate and the indirect effect of lowering the police’s clear-up rate. Nevertheless, the Home Office felt very strongly that police figures were far too low – the British Crime Survey, based on reports from a representative sample of individual victims of crime, suggested that only about 25% of predatory crimes were getting into the police figures – and the changes duly went through. Comparability was also an issue, although less of an issue with each passing year of data being produced under the new rules. The Home Office has in any case made it very clear that there is no comparability of police crime figures between 2002 and 2003, making available figures like the ones from which the graph below was compiled.

As you can see, there’s a strong correlation between the impact of the NCRS and the amount of evidence typically left by the offence. Recorded burglaries weren’t greatly affected, but recorded crimes of personal violence – where supporting evidence is particularly thin on the ground – went up by almost a quarter from one year to the next, on the basis of nothing other than a change in counting rules.

Now, there is no particular reason why the average member of the public should know about all this. It’s inconceivable that anyone with a professional or academic interest in crime or policing wouldn’t know about it, though; it would be like claiming expertise in English history and getting the date of the Battle of Hastings wrong. So this was an interesting story about the Shadow Home Secretary, Chris Grayling.

Sir Michael Scholar, chairman of the UK Statistics Authority, has warned [Grayling] that the way he used figures for violent crime were “likely to mislead the public”. … Mr Grayling’s office arranged for a press release to go out in every constituency in England and Wales, purporting to show that violent crime had risen sharply under Labour, as part of a campaign spearheaded by Mr Cameron about “broken Britain”. But Mr Grayling had failed to take into account a more rigorous system for recording crime figures introduced by the Home Office in 2002. … Mr Grayling has used comparison between the figures before and after the rule change to suggest that the Labour government has presided over a runaway rise in violent crime.

“I do not wish to become involved in political controversy but I must take issue with what you said about violent crime statistics, which seems to me likely to damage public trust in official statistics,” Sir Michael wrote in a letter to Mr Grayling yesterday.
…
Mr Grayling replied by promising to “take account of the request by the Statistics Authority, particularly with regard to the changes to recording practices made in 2002-03″. But he insisted that he would “continue to use recorded crime statistics, because they reflect an important reality; that the number of violent crimes reported to police stations, and particularly serious violent crimes, has increased substantially over the past decade, even taking into account any changes to data collection”.

But we don’t know the number of violent crimes reported to police stations, because we don’t know the number which are reported but not recorded; that number is not recorded, surprisingly enough. (There was a proposal a few years back to keep separate tabs on ‘incidents’ (i.e. everything that comes over the front desk or over the phone) and ‘calls for service’ (the subset of incidents that the police do anything about), but as far as I’m aware it didn’t come to anything.) In other words, Grayling has not only managed to ignore a really basic piece of statistical general knowledge; he’s gone on to ignore a correction by an expert in the field, responding in a way which demonstrates a complete lack of understanding of what he’d just been told.

The question this leaves is, is David Cameron’s first choice for Home Secretary very, very dishonest, or just very, very stupid?

Says there’s none

All RIGHT! Whoo! Are there any LEGAL THEORISTS in tonight???

OK then. (Hi Rob!)

Here are some thoughts on regulation and the law. This is a slightly abbreviated version of a paper I gave at a seminar earlier this year, which I’m planning to write up at greater length for publication.

I’d like to examine the conditions which make it possible for regulation to be both just and effective, and the conditions which make it problematic. For clarity, I am defining regulation here as the continued monitoring of an actor’s actions, by an agency authorised to do so, on the understanding that deviation from declared expectations will be met with some form of corrective response. Regulatory monitoring is not itself a punishment and does not require the prior establishment of guilt; it may be entirely prospective rather than retrospective, carrying with it no stigma for the actor whose activities are regulated.

Regulation can have very different associations, depending in part on who is being regulated and by whom. We can distinguish between professional regulation, in which organisations which wield power within society submit to regulation by specialist agencies; behavioural regulation, in which state authority is brought to bear on relatively powerless individuals; and regulation from below, in which pressure from individuals regulates the actions of powerful agencies.

Much comment on behavioural regulation, as exemplified by anti-social behaviour (ASB) legislation, has been highly critical – and critical in ways which calls into question whether this type of approach should be dignified with the name of regulation. It has been argued that behavioural regulation, rather than modifying behaviour without penal stigmatisation, does in practice stigmatise and punish – indeed, that it tends to undermine established principles of criminal justice, singling out undesirables for fast-tracked punishment. Anti-social behaviour legislation is not unique in this respect. Parallels have been drawn with control orders (Macdonald 2007); like ASBOs, these single out specified individuals for restrictive treatment. This raises the question of whether the defects of the ASBO system are parallelled in the control order regime – or even whether they are implicit in any attempt to apply the regulatory approach to individual behaviour.

I’ll address these questions by way of some comments on ‘technical regulation’ from the Russian legal theorist Evgeny Pashukanis.

A railroad schedule regulates the movement of trains in a very different sense than, say, the law on the liability of railroads regulates the relationship of the latter with freight shippers. Regulation of the first type is primarily technical; the second primarily legal.
…
The basic assumption of legal regulation is … the opposition of private interests. … The conduct of people may be regulated by the most complex rules but the legal element in this regulation begins where the individualization and opposition of interests begins. … Unity of purpose is, on the contrary, the premise of technical regulation. Therefore the legal norms concerning the liability of railroads presume private claims, private individualized interests; the technical norms of railroad movement suppose a single purpose, e.g. the achievement of maximum freight capacity.
(Pashukanis 2001 (1924))

For Pashukanis, the law concerns itself above all with conflicts between private interests. A railway timetable may impose obligations on many different people, failure to meet which may reasonably be penalised; Pashukanis cites other examples of ‘technical regulation’ such as a troop mobilisation plan or a course of medical treatment. However, what is at issue in such a case is an individual’s failure to contribute to the realisation of a common interest, as in the case of a train driver who turns up to work five minutes late, and consequently causes a scheduled connection to be missed. While the train driver has impeded the achievement of a common interest in punctuality, there is no conflict of interests here: the train driver is not pursuing a personal interest in disrupting the system. The disruption caused by the driver’s failure to meet an agreed obligation can be dealt with, in Pashukanis’s terms, through technical rather than legal regulation – or in our terms, through regulation rather than the law.

Pashukanis argues that the domain of regulation is defined by the unity of purpose conferred by a recognised common interest. This emphasis chimes with much contemporary comment on professional regulation, which stresses the need for the regulatory standards to be embedded in the culture of the organisation being regulated. However, Pashukanis’s insistence that regulation begins where the law ends is an unsatisfactory starting-point for us. This assumption would also suggests that regulation is unavailable in any case where all parties are not united by ‘technical norms’ which suppose a common interest; this would effectively rule out behavioural regulation and severely limit the scope of professional regulation.

A way out of this impasse is suggested by Braithwaite’s celebrated formulation of responsive regulation. Most regulatory interventions, Braithwaite argues, should assume a ‘virtuous actor’ open to persuasion. Only if this approach fails should the regulator resort to deterrence, implicitly addressed to a non-compliant but rational actor – and only if this fails should a punitive approach be adopted, implicitly addressing an incompetent or irrational actor. Crucially, compliance at the second or third level should prompt the regulator to de-escalate the next time intervention becomes necessary. The more confrontational the intervention, the less often it should be used; hence the image of a pyramid.

Persuasive regulation – the ground level of the pyramid – is an appeal to the subject of regulation to present him- or herself as a ‘virtuous actor’. The assumption is that the regulator and the subject of regulation have a shared interest in recognising each other – and being recognised – as socially responsible. This interest may not be uppermost in the mind of the subject of regulation – hence the possibility of escalating to deterrence – but it’s worth a try. “The most irresponsible of us has a socially responsible self. Responsive regulation is a strategy for persuading the worst of us to put our best self forward.” (Braithwaite 2002: 21).

If the scope of Pashukanis’s ‘unity of purpose’ is broadened in this way, we can see how the scope of professional regulation can be broadened in turn. Individuals do not need to be united by the mechanical interdependence of their working roles: they may be united by the culture of a particular profession or by more nebulous commitments such as the ‘public service’ ethos. The purpose which unites may even be supplied by statutory obligations (such as those imposed by the Crime and Disorder Act 1998 or the Race Relations Amendment Act 2000), at least once these have had time to become acculturated. All that is needed is a sense of what makes up the virtuous professional self: the list of things that people like us do and don’t do.

I seem to have proved that just and effective professional regulation is at least theoretically possible. Have I also rescued behavioural regulation? Not entirely. If a regulatory approach is genuine, I would argue – if it is more than an alternative label for administrative control – it must be founded on common interest; this in turn will mean that the ground level of Braithwaite’s pyramid is present. If the interest motivating compliance is truly shared, in other words, this can be demonstrated through the use of persuasion rather than deterrence – which will also be the most economical route to compliance. If the regulatory approach begins with deterrence and escalates from there, the suspicion must be that the interests of the subjects of regulation are simply being overridden: in other words, that regulation has illegitimately substituted for the legal processes which should adjudicate the conflict of interests – even between the state’s interests and those of an individual citizen. In the case of ASB legislation, there is some evidence of genuine attempts to appeal to ‘virtuous selves’, notably through the use of acceptable behaviour contracts (ABCs) as a precursor and alternative to ASBOs. However, there is plentiful evidence of a very different approach, deriving from the overtly divisive and exclusive ‘broken windows’ agenda. This approach tends to replace agreement between professionals and young people with agreement among professionals on how to deal with young people, who are seen as a problem rather than as individuals with interests of their own.

In the case of control orders, the situation is even worse. We are dealing here, after all, with people suspected of political offences – offences against the state. In the case of non-political offences, a habitual offender may have a socially responsible ‘best self’ to put forward, and may be motivated by gaining official recognition for this self-image: the literature on desistance tells us that this is a common profile among successful desisters in particular. By contrast, a suspected terrorist (assuming for the moment that he or she has been correctly identified) will be a committed opponent of the British state: someone who not only feels a deep-seated hostility to the state detaining him or her, but considers that hostility as virtuous rather than shameful. The possibility of mutual recognition between such a suspect and the authority regulating his or her behaviour is essentially non existent. This suggests that the regulatory approach in this case is illegitimate – or at least, that it is not regulation so much as the extra-legal use of state power.

In short, I follow Pashukanis in arguing that regulation tends to remove the matters regulated from the sphere of litigation and resolve them through administrative means. For this reason, regulation must be based on the recognition of a common interest, shared between the regulator and those regulated; this recognition can best be asserted and negotiated at the level of persuasive interaction, which is also the least costly and least coercive form of regulatory intervention. In the absence of such a common interest, regulation will be either ineffectual in its persuasion or unjust in its coercion. While these considerations apply to professional regulation, they apply with particular force to behavioural regulation. Although just and effective behavioural regulation is not impossible, the two most prominent current examples – the ASBO and the control order – are badly flawed, the control order in particular.

References

Braithwaite, J. (2002), “Rewards and regulation”, Journal of Law and Society 29: 1
Macdonald, S. (2007), “ASBOs and Control Orders: Two Recurring Themes, Two Apparent Contradictions”, Parliamentary Affairs Advance Access, published July 27
Pashukanis, E. (2001; originally published 1924), The general theory of law and Marxism, New Brunswick: Transaction

In the hot sun

Obsolete has an excellent, if inevitably depressing, analysis of the latest from Louise Casey. I was particularly struck by one line in particular: apparently Casey thinks it’s important

to get the public more engaged in tackling crime and to stop the erosion of community spirit.

Oh-oh – Broken Windows alert. Criminologists have spent years of their lives trying to make sense of this stuff – what ‘community spirit’ is, how you can tell whether it’s eroded or not and what the actual causal connection is between community spirit and the level of crime. By and large, they haven’t had much success. And, if you look at the original article and subsequent papers by the main proponents of this stuff – Bill Bratton as well as Kelling and Wilson in the US, Norman Dennis and Ray Mallon over here – that’s not surprising: the parts about how it’s actually supposed to work are quite insultingly vague. In point of fact, the original article is only incidentally about crime; it’s about policing, but policing in the service of a certain kind of social order. The focus isn’t crime prevention, in other words, so much as the prevention of disorder as an end in itself – an emphasis which I think you can find in a lot of subsequent ‘communitarian’ work on crime prevention, including the much more sophisticated work of people like Martin Innes.

The worst of it is that, at least in its cruder forms, this model is more or less untestable. Which, in turn, makes it more or less impossible to disprove: you can always look around you and see disorder, fear of crime and a lack of community spirit. So it never dies – at least, not for as long as there are journalists and politicians willing to keep it fresh.

I’ll leave detailed comment on Casey’s report to Obsolete, at least until I’ve had a chance to read the thing. For now I’ll just comment on one point from the report, which has been widely publicised: the proposal to make community service more punitive, by calling it ‘Community Payback’ and making the people doing it wear high-visibility jackets. Obsolete points out that, for better or worse, both of these proposals are already in place in some parts of the country, and comments: it doesn’t seem to have altered the impression that it’s a soft option, possibly because that’s what the popular press always refers to it as.

I’d go further: I think being ‘not punitive enough’ is widely seen as part of the definition of community service, essentially by virtue of it not being prison. That being the case, making it more visible is likely to set up a feedback loop which could make matters much worse. If you see a bunch of blokes weeding a verge or picking up litter, and not obviously having a really horrible time of it – they might be chatting among themselves, they might even be stopping for a fag – you’re not going to think I spy Evil Criminals Getting Punished! You might even think I spy Evil Criminals Having A Jolly Nice Time! – obviously ignoring the fact that the chat or the fag break came in the middle of several hours of menial labour, at the end of which they’d have no money and just as many bills to pay. But we can’t have that, think Casey and her ilk, so clearly community service will need to be made ‘tougher’ – keep ‘em at it every minute of the day, no breaks, no talking…

But, at least in the last couple of centuries, sentencing has never been about punishment and nothing but. More to the point, custodial and community-based sentences have never been designed on the basis of making the convict’s life a misery every minute of the day. For a set period, your time is forfeit – your life is not your own; that is the punishment. The logic of Casey’s position is to, literally, scapegoat people on community sentences – turn them into a kind of all-purpose scratching-post for people to let out their hatred and fear of ‘criminals’ (which is a big subject in itself, and certainly doesn’t seem to have much to do with the level of crime). Petrol’s up again… more dead in Afghanistan… another stabbing down the road… guy in an orange jumpsuit and a tag cutting the verge, looks really miserable about it, well serve you bloody well right pal! As a way of treating actual flesh-and-blood offenders – and offenders who, by definition, won’t be guilty of anything very serious – it leaves just about everything to be desired.

All the peacemakers

Socialist Unity has a notice for what looks like an interesting and important meeting:
Creating the Climate of Fear: Counter-Terrorism and Punishment without Trial

Friday March 14; 6.30-9.00 p.m, London Muslim Centre, 46 Whitechapel Road
Organised by Campaign Against Criminalising Communities, Centre for the Study of Terrorism

It’s a meeting about the proposed Counter-Terrorism Bill (the ’42 days’ bill, although there’s plenty more to object to in there). I’m not familiar with everyone involved, but there are certainly some good speakers on the list and some important issues on the agenda. The first two, for example:

Detention without charge would be extended from 28 days to 42 days
‘Terrorism suspects’ could be detained without charge for six weeks. Before 2000 it was 4 days. Neither government nor police have given any convincing reason why so long is needed. The USA manages with 2 days, even Algeria with 12.

Post-charge questioning of ‘terror suspects’ – presumed guilty?
‘Terror suspects’ could be subjected to further questioning after a criminal charge, even up to the trial date. Saying nothing could count against them at trial. At present, people once charged can refuse to answer till their trial, without this being interpreted as a sign of guilt or deception.

There’s more to this second point than meets the eye; in fact I’d argue that this phrasing (people once charged can refuse to answer) already concedes too much. Traditionally the relationship of the police to the courts has been essentially that of a sorting and delivery service: if there’s not enough evidence for a charge, you let the suspect go; if the evidence is there, then you bring a charge and hand the suspect over to the courts. At this point the police cease to have any interest in that person. There isn’t any question of a suspect once charged ‘refusing to answer’ further questions; by being charged, the suspect has moved on to being a defendant – and defendants are no business of the police. Any delay between the charge being brought and the defendant attending court is just that, a delay – an administrative problem.

Labour counter-terrorist legislation has repeatedly extended the length of time the police are allowed to detain a suspect before releasing him/her or bringing charges; this has been justified on the grounds that the nature of terrorist offences makes it particularly hard to get sufficient evidence. However persuasively this may have been argued by successive Home Secretaries, it is hard to see what makes terrorist offences more intractable than, say, transnational corporate fraud. It’s particularly hard to see why the evidence had become twice as hard to gather in 2006 as it was in 2003, and four times as hard as it was in 2000. (Informative post and alarming graphic here.)

What seems to have happened in practice, behind the ‘evidence-gathering’ justification, is the creation of a new stage in the process, for terrorist suspects: police detention. The introduction of post-charge questioning would entrench and formalise this: if no terrorist charge could be brought after 28 or even 42 days, the police could simply hunt around for evidence of an unrelated offence, charge the suspect with that and then carry on questioning. The scope for abuse – and inadvertent misuse – of this system is only too clear.

Of course, it’s true that powers like this could be a weapon in the war against terrorism – but so could just about any other power, up to and including selective assassination. (Would anyone argue Mossad was not effective in disrupting the PLO?) The point is whether the costs imposed by a power like this would be imposed justly: imposed on the guilty proportionately to their guilt and imposed on the innocent, as far as possible, not at all. To ask this question is to answer it: apart from anything else, it’s not the job of the police to determine guilt or innocence. In practice, we can be sure that some innocent suspects would fall foul of these powers. What’s more of a concern is that, in practice, there would be no way of minimising the proportion of innocents who suffered in this way: to do this would require identifying those who were innocent, which by definition could only be done after they had been passed on to the courts.

The funny thing about these successive increases in the maximum police detention period – in 1974, 2000, 2003 and 2006 – is that they’ve all happened under Labour. Mrs Thatcher wasn’t known for her civil libertarianism or her hostility to the police; all the same, her response to nearly getting killed by the Provisional IRA was to defy the ‘men of violence’ by refusing to implement new counter-terrorist legislation. Somehow that particular brand of defiance seems to have passed Labour by.

To stun an ox

I’ve written a book. The MS has just gone off to the publisher; it’s still got to be checked, copy-edited, re-checked, typeset, proof-read and probably several other stages I’ve forgotten about, and it probably won’t be out much before Christmas. But it’s a book, and it’s been written. By me.

It’s called ‘More work! Less pay!’ Rebellion and repression in Italy, 1972-1977. The introduction begins like this:

A long wave of direct action spread across Italy between 1972 and 1977. Factory workers went on strike without union approval, walking out or occupying their workplaces; empty buildings were squatted and converted as ‘social centres’; council tenants withheld the rent; groups of women went on ‘can’t pay? won’t pay!’ shoplifting trips. The streets were also busy, with marches and demonstrations running at around two per week throughout the period.

Sidney Tarrow has analysed an earlier wave of contentious activism in terms of a ‘protest cycle’ or ‘cycle of contention’. Tarrow described how, in the early 1970s, a wave of contentious and disorderly movements spread from the universities to the industrial North of Italy before being neutralised by the Partito Comunista Italiano. The PCI’s qualified endorsement of the movement’s tactics led to the demobilisation of the movement and the achievement, in modified form, of its principal goals, by way of an expansion of the political repertoire endorsed by the PCI. The PCI in this period occupied an ambivalent position, as a supposedly ‘anti-system’ party which nevertheless played a significant role in the Italian political system; this put it in a strong position as a political ‘gatekeeper’. The outcome of the cycle was positive: under pressure from the movements, the PCI pushed back the boundaries of acceptable political activity.

In this book, I argue the late-1970s wave should be seen as a second cycle of contention. The movements of this second cycle include the ‘area of Autonomia’, based in factories and working-class neighbourhoods and active between 1972 and 1977; a wave of activism among young people which gave rise to the ‘proletarian youth movement’ of 1975-6 and the ‘movement of 1977’; and the left-wing terrorist or ‘armed struggle’ milieu. I argue that the outcome of the second cycle, like that of the first, was determined by the interaction between contentious social movements and the PCI. I also suggest that the PCI’s hostile or exclusive engagement with the second cycle of contention had lasting effects for the party as well as for the movements of the cycle. The PCI committed itself to a narrower and more explicitly constitutional range of activities and values; the result was a lasting contraction of the party’s ideological repertoire, and consequently of the repertoire of mainstream politics.

The conclusion ends like this:

Between 1966 and 1980, the PCI played the role of ‘gatekeeper’ to a relatively closed political system, admitting certain innovations to the sphere of political legitimacy and barring others. The movements of the second cycle were confronted by a hostile gatekeeper, which persistently framed their activities in terms which excluded them from political legitimacy. A key manoeuvre, as we have seen, was the evocation of violence: the movements were repeatedly denounced for the use of violence, toleration of violence, tardiness in disowning those who used violence… The ultimate result was the repression of a broad area of social, cultural and intellectual ferment, accompanied by dozens of prison terms and a brief flourishing of openly illegal ‘armed struggle’ activity; the PCI itself also suffered, denying itself a source of much-needed ideological renewal.

The disastrous outcome of the second cycle of contention was not inevitable. Given the relatively closed Italian political system, any disorderly social movement would face some type of engagement with some type of gatekeeper; by the 1970s the gatekeeper for any left-wing movement could only be the PCI. However, the exclusiveness of the PCI’s engagement was not a foregone conclusion until Berlinguer committed the party to the ‘historic compromise’ strategy – if then. The engagement was a missed opportunity which could have been taken.

The same choices could face other gatekeepers in other relatively closed systems. In Britain, where the electoral system excludes social movements from the national political system, the Labour Party remains the principal left gatekeeper. Faced with a disorderly and uncontainable rival to its left, Labour would have the same options as the PCI. An inclusive engagement would require the party quietly to appropriate and absorb the demands and tactics of the new movement, while publicly denouncing its leadership as irresponsible extremists. An exclusive engagement, in contrast, would involve denunciations of violence, escalating demands for dissociation and emphatic assertions of the party’s own commitment to democracy and the rule of law. The Italian experience demonstrates that the second of these approaches is not likely to have good results – for the movements or for British society.

The book is dedicated to Nanni Balestrini and the late Primo Moroni, whose work on the period is absolutely indispensable; I mean, by all means start with my book (and Steve Wright’s), but then get some Balestrini – and an Italian dictionary if you need one. The epigraph is from one of Balestrini’s novels:

I said to him I ask myself sometimes now it’s all over I ask myself what did it all mean our whole story all the things we did what did we get from all the things we did he said I don’t believe it matters that it’s all over I believe what matters is that we did what we did and that we think it was the right thing to do that’s the only thing that matters I believe

You won’t see the book for several months, and all things being equal you’re not very likely to see it then: the first print run will be an academic hardback, limiting its potential sales rather severely. But if the hardback run sells out a paperback may be possible – so tell all your friends, especially if they work in a library. It looks like being the first book-length study in English of the autonomist movements of the late 1970s, which should give it a bit of an audience.

Anyway: I’ve written a book. A book, by me, written; written, then edited and re-edited, checked and edited again, and sent off to the publisher today. I’ve celebrated with a bottle of Decadence. Now perhaps I’ll complete that biography of Debord. Or I may just do some of the stuff that’s been piling up while I’ve been working on this book…

Working on the sequel

It is fair to recognize the difficulty and the immensity of the tasks of the revolution that wants to create and maintain a classless society. It can begin easily enough wherever autonomous proletarian assemblies, not recognizing any authority outside themselves or the property of anyone whatsoever, placing their will above all laws and specializations, abolish the separation of individual, the commodity economy and the State. But it will only triumph by imposing itself universally, without leaving a patch of territory to any form of alienated society that still exists. There we will see again an Athens or a Florence that reaches to all the corners of the world, a city from which no one will be rejected and which, having brought down all of its enemies, will at last be able to surrender itself joyously to the true divisions and never-ending confrontations of historical life.
- Debord

A question about law and communism. (This will be a fairly specialised post, I’ll warn you now.)

The other day I was reading Donald Black’s 1983 paper “Crime as Social Control”. It’s a terrific piece of work, a real complement to the unpacking job done ten or twenty years earlier by writers on the sociology of deviance. Black argues that much of what we see as crime can be understood, ethnographically, as informal means of regulating deviance: many victims of theft, assault and even murder are being punished, in the eyes of the offender, for offences not controlled by the criminal justice system. This doesn’t mean that we should endorse these forms of wild regulation as just; they are quite likely to be unjust in both procedural and distributive (outcome) terms. But to conceive of them as forms of regulation (or ‘social control’ in Black’s preferred terminology) does at least make them more comprehensible – not to mention opening up some interesting questions about legitimate and illegitimate forms of regulation.

So I was nodding along pretty enthusiastically to Black’s paper, but then I was brought up short.

A great deal of the conduct labelled and processed as crime in modern societies resembles the modes of conflict management – described above – that are found in traditional societies which have little or no law (in the sense of governmental social control)

Hold on: “law (in the sense of governmental social control)“? Can that possibly be right?

That’s not the question, although it’s related. The question is: in formal terms, how would communism change the law? Obviously the law would no longer have any call to do certain things; property law would be out of the window for a start, and I imagine that most of the criminal justice system would wither and die in very short order. And no, to the extent that the law represents governmental social control, well, there’d be none of that, for obvious reasons.

But does that dispose of the law? I’m not at all sure that it does.

From this equality of ability ariseth equality of hope in the attaining of our ends. And therefore if any two men desire the same thing, which nevertheless they cannot both enjoy, they become enemies; and in the way to their end (which is principally their own conservation, and sometimes their delectation only) endeavour to destroy or subdue one another. And from hence it comes to pass that where an invader hath no more to fear than another man’s single power, if one plant, sow, build, or possess a convenient seat, others may probably be expected to come prepared with forces united to dispossess and deprive him, not only of the fruit of his labour, but also of his life or liberty. And the invader again is in the like danger of another.
- Hobbes

I’m not bringing in Hobbes as a knockdown argument against communism – that would just be a more sophisticated version of “but people aren’t like that“, the eternal stupid Tory argument against teenage utopianism (not that I’m still bitter or anything). I do think it’s possible to envisage a world in which nobody spent their time endeavouring to destroy or subdue one another. But what I think Hobbes does put his finger on, almost in passing, is scarcity: even if nobody owns anything, there will still be a book you’re reading that I want to read, an artwork I’ve been given that you would have liked on your wall. Most of the time we’ll be able to sort everything out amicably – probably through some of those interminable meetings that communism is going to be so good for – but at some point there will be differences of perspective that can’t be resolved; at some point there will be conflict.

And what do you want to deal with conflict? What you want, it seems to me, is a book that reminds us how we deal with certain kinds of conflict, and somebody who’s good at reading that kind of book. Obviously it can all be opened up – the role of book-reader can rotate, or be open to whoever wants it, or be open to recall; the book can be updated, if we can agree on an update (and if we can agree on the conditions under which an update is applied, and for that matter on the conditions under which a discussion like this can be halted before we end up in a game of Nomic). Perhaps you don’t even need a reader. But you’ve still got a book that embodies elements of the experience of a community, in the form of statements that the community now defers to. You’ve still got law.

If I try to imagine a community without law, in this strong sense, I can only imagine a community without a past: a community whose life was made up as it went along. It sounds like a nice place to visit, but could you really live there?

Just to keep you from danger

An open-and shut case?

The charge alleges the force “failed to conduct its undertaking, namely the investigation, surveillance, pursuit and detention of a suspected suicide bomber, in such a way as to ensure that the person not in its employment (namely Jean Charles de Menezes) was not thereby exposed to risks to his health or safety”.

Apparently not.

In a statement released after the hearing, the Met said the prosecution was based on actions taken by officers facing “extraordinarily difficult circumstances” on that day. It said they were “not criminal acts” and that the officers had the support of the force.It went on: “The decision to defend the case has been reached after the most careful consideration. It is not about diminishing the tragedy of Jean Charles de Menezes’ death.

“We see it as a test case not only for policing in London but for the police service nationally. It also has implications for the general public in that it concerns the ability of the police service to protect the public at large when carrying out armed operations.

“We also profoundly question whether health and safety at work legislation, originally designed over 30 years ago to protect employees in the workplace or those affected by commercial enterprises, is the right ‘vehicle’ for evaluating the actions of an emergency service in relation to decisions made during fast-time, life-at-risk anti-terrorist policing operations.”

There are a couple of interesting aspects to this. One is the apparent absence of wiggle room in the charge brought by the Crown Prosecution Service. Whether ‘criminal acts’ were committed, whether officers faced difficult circumstances or whether the individuals responsible enjoy the support of the force: these are not issues. The CPS isn’t even asking whether the risk to the public posed by police action was avoidable, let alone whether it was in some sense acceptable. The question is whether the Metropolitan Police, collectively, conducted anti-terrorist operations in such a way as to avoid endangering the life of Jean Charles de Menezes. Defending the Met against that charge isn’t a brief I’d like to take.

That said, it seems unlikely that the Met’s defence case will rest on the claim that they didn’t put de Menezes at risk. One line of defence is hinted at by the (otherwise baffling) comment that the case concerns the ability of the police service to protect the public at large. As a member of the public at large, that’s very much my own view of the prosecution, and one reason why I’d like it to succeed. The police statement presumably intends a different inference: to convict the people responsible for de Menezes’ death, by implication, would make it harder for the police to protect the public at large. We shouldn’t hold one death against them – after all, another time that guy running for the train with a Metro under his arm might actually be a suicide bomber, and if they couldn’t shoot him down like a dog we’d all be sorry. Well, maybe.

The Met’s other line of defence concerns the appropriateness of Health and Safety legislation. I’m in two minds about this. On one hand, you can see their point – this isn’t legislation that was drafted with police work in mind, and to have it apply to anti-terrorist policing seems particularly incongruous. On the other, the argument against having it apply seems shaky. Should the police be exempted from a duty of care towards the public – or at least, a duty not to put the public’s lives at risk? Should armed police? It’s not an appealing thought. As for this specific case, criminal charges against the officers responsible a prosecution for corporate manslaughter would be more conventional – but, since that isn’t likely to happen offence doesn’t exist in English law, a Health and Safety prosecution is hard to argue with. [Thanks to Chris for pointing out the obvious problem with my initial thoughts. It was late.]

So it’s an odd case, but I think the charge is fundamentally sound – and, as it stands, unchallengeable. My only real misgivings concern what happens when it gets to court (not until next January); I hope for the best and fear the worst. In particular, I fear that the Met and its allies in the press will play up the novelty of a Health and Safety prosecution – conveniently ignoring the absence of any other prosecution – and harp on the vital importance of anti-terrorist work. At worst, the Met could end up laughing the case out of court – and securing themselves a Get Out Of Jail Free card in the process, against the day they screw up again and kill another innocent passer-by.

Mind how you go.

There’s a party somewhere

I’m not much of a raver; actually I’ve never raved in my life, with the possible exception of a couple of hours at a hotel near Preston, one night in 1988. (I was there for a systems analysis course. I said I wasn’t much of a raver.)

All the same, I remember smiley-face music, and I remember how things heated up a few years later, with the CJA and ‘repetitive beats‘ and so forth. So I probably shouldn’t have been too surprised by this:

Police are desperately trying to find out details of a “mega” illegal rave expected to take place in the coming weeks, as forces across the country begin to report a significant resurgence in the free party movement.
[...]
Forces admit there has been a surge in activity, including one party in north Cornwall that was attended by more than 5,000 revellers. Officers are warning landowners and the public to be on their guard after receiving intelligence that large raves may be being planned for weekends in August, particularly over the bank holiday.
[...]
On a national level forces are working hard to make sure they share information about raves in the pipeline. Thames Valley police is using Asbo legislation to try to take out prolific rave organisers, while police in Norfolk, another rave hotspot, this week urged landowners to make sure ravers cannot get access to prime party sites.
[...]
Over May bank holiday this year hundreds of VW and custom car fans headed to Newquay in north Cornwall for an annual Run for the Sun rally. The police did not notice that among them were many hundreds much more interested in sounds systems than air-cooled engines. Officers watched helpless while as many as 5,000 people partied at a well-organised but illegal rave on a disused airfield at Davidstow, near Camelford. Once thousands of people are on site the police tend to monitor and contain the event rather than try to break it up.In other parts of the country police have managed to stop big raves. One which had attracted as many as 2,000 people in Northamptonshire was halted; a week later Avon and Somerset police got wind of a planned rave at an old firing range and managed to blockade it. Chief Inspector Richard Baker of Devon and Cornwall’s contingency planning unit accepted the Davidstow rave had not been on the police’s radar but said the force was now better prepared. Intelligence specialists were monitoring websites and party phonelines to try to pick up word of further free parties and festivals.

But I was mildly surprised, not by what’s in this story so much as what’s not there: any reference to why the police are so keen to stop people dancing on airfields. The last time things were kicking off, I’m pretty sure that the news coverage was all about how dangerous these scary new wild parties were: the neighbours would be deafened, the sites would be left knee-deep in litter, the countryside would be trashed… As for anyone foolhardy enough to actually go to a rave, they’d be lucky to escape with their lives, what with the dangers of being crushed, trampled underfoot, overheated, dehydrated or unknowingly taking a lethal cocktail of drugs. As time went by it became clear to anyone who bothered to look into it that the organisers of free parties were generally pretty responsible when it came to trashing the environment; that remarkably few people were getting crushed trampled overheated, etc; and that even the drugs people were taking were, by and large, non-lethal. But by that time the legislation was in place and the scene had gone into an enforced decline.

So it’s not entirely surprising that, faced with a new wave of rave (sorry, please nobody use that), the relevant police forces are ready and waiting to stop it in its tracks. What is interesting is the absence of any kind of justification – or, in the case of our man at the Guardian, any sense that there ought to be some kind of justification – for these operations, which seem to be a fairly massive clampdown on activities which don’t appear to be doing anybody any harm.

Of course, there are laws against raves, passed by the Tories in the mid-90s (with the assistance of the then Shadow Home Secretary, Tony Blair). It’d be understandable if the police were making a case for impartial law-enforcement (we don’t have opinions about the law, sir, we’re just here to make sure it’s obeyed), although obviously there would be room for arguments about priorities. But what’s going on at the moment appears to go further. Note the reference to anti-social behaviour:

Thames Valley police is using Asbo legislation to try to take out prolific rave organisers

According to the 1998 Crime and Disorder Act (which introduced the ASBO), ‘anti-social behaviour’ equals behaving ‘in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household’ (emphasis added). Picture yourself a rave organiser up before the court. How do you fancy your chances of persuading a magistrate, not only that your activities were not illegal, but that they were not likely to cause harassment, alarm or distress?

I’m old enough to remember acid house; I’m also old enough, just about, to remember this. It looks as if that’s where we’re heading.

It happened before

I hate it when my doctoral thesis gets topical. Here are some figures:

1975	1976	1977	1978	1979	1980	1981
333	282	277	190	103	33	81
92	169	460	1110	802	258	141
3	8	5	28	21	25	15

Take a moment to read across the rows and get a feel for the shape of the series. Row one starts pretty high – almost one of these things per day – then declines year on year, plummets to almost nothing in 1980 and makes a weak recovery in 1981. Row two starts low-ish (about one every four days) then rises continuously and rapidly as the first series falls; it peaks in 1978 at the extraordinary value of 1110 (three of these things per day) then declines quite steeply, although the 1981 value is still higher than the 1975 starting point. As for the third row, it starts low, jumps to a higher value at the time of the 1978 peak, then stays close to that higher level for the next few years, even while the second series declines.

The figures all relate to Italy. Row one represents the number of mass radical protests (strikes, demos, occupations, mass shoplifts, rent strikes, etc). It’s an approximate figure in all sorts of ways, but everything I’ve read suggests that the trend is valid.

Row two is the number of actions by radical ‘armed struggle’ groups.

Row three is the number of people killed by those groups.

And here’s Anjem Choudray, self-described spokesman for the banned organisation Al-Ghurabaa:

We have been functioning here for the last 10 or 15 years and nobody has ever been arrested for any terrorism-related offences. What this will do is it will militarise many people, because if you stop people propagating their thoughts and ideas, then you will push them underground and after that you have no control over them.

Nice one, Dr Reid.

Your complaint is my mandate

So, if you aren’t going to vote Labour (and I really hope you aren’t), who does that leave?

For myself, I’m not voting Liberal Democrat. On the national level the party remains some way to the Left of Labour, but that’s not saying very much. At the local level their campaigning is truly abysmal. The last councillor they got elected around here did a lot of old-style pavement-level campaigning before he was elected. The current councillor-elect, though…

I am returning this questionnaire uncompleted. As a disaffected left-wing Labour voter, I have been tempted to give the Liberal Democrats my support on a number of occasions.However, I have been deeply disappointed in recent communications from your party, this questionnaire included. Firstly, the ‘personal details’ section of the questionnaire has been pre-completed, with the names of both the adults living at this address and our phone number. While I realise that this information is in the public domain, we have not given it to the Liberal Democratic Party and have no wish for it to be held on the party’s database. Please remove our details.

The questionnaire itself is a really dreadful piece of work, full of leading questions and generally calculated to produce a public endorsement of the local party’s existing positions. Questionnaires of this type are thoroughly dishonest; I’ve complained to the local Labour Party before about their use of this form of sharp practice, but nothing they’ve circulated has been as bad an example as this one.

Lastly, this questionnaire suggests that the Liberal Democrats have given up on opposing the two major parties in the area of law and order, just when a principled opposition is most needed. Labour, in particular, are currently proposing some startlingly reactionary and authoritarian policies on crime and ‘anti-social behaviour’. In the past the Liberal Democrats have raised a voice of sanity, tolerance and liberalism against these developments. It’s deeply disappointing to see the party trying to compete with Labour for the Daily Mail vote.

I sent them this letter on Tuesday. They phoned up today to ask if they could count on my vote. Joined-up campaigning!

I won’t be voting RESPECT, either; I’d find it very difficult to vote for them in any circumstances, but they’ve saved me the trouble by not standing in my ward. Or, indeed, in any of Manchester’s 32 wards, with the exception of one: Rusholme. As Andy Newman says in the piece I quoted yesterday,

Respect’s strategy outside East London is to throw all their resources at a limited number of target seats. This is a viable and rational strategy, if not necessarily the only one. In some areas like Manchester this has caused local controversy, as the tactic has been poorly applied. Respect are standing in a ward never contested by the left before and are abandoning the admittedly small base they had established elsewhere in the city. And they are standing against one of the very few Labour Left candidates.

Meaders dismisses the idea that RESPECT is running any kind of ‘communalist’ campaign – but it’s difficult to see what other justification there could be for focusing on Rusholme. (Rusholme is currently represented by three Lib Dems; the Labour candidate this time out is John Byrne, who has in the past gone unchallenged from the left.)

I can forgive RESPECT a lot for the consternation they’re causing New Labour and its sympathisers. Patrick Wintour‘s efforts to avoid mentioning the elephant in the room were particularly amusing:

Labour is expected to hold on to Greenwich, Barking, Hackney, Newham, Lewisham, and Haringey, but Tower Hamlets is unfathomable. In the west of London, Hammersmith and Fulham, Hounslow and Ealing all look vulnerable. Croydon and Merton in the south, which were once deemed marginal, are now gone.But much will depend on turnout. The Tories are confident about voting intention thanks to David Cameron, Labour’s activists are thin on the ground, and much effort is being put into black church congregations, who are regarded as likely to vote. Mr Blair has held big, successful rallies with black Christians. In Brent and Harrow the Hindu vote is loyal to Labour. But elsewhere the traditional Labour vote is likely to stay home, or go elsewhere.

(Black Christians, Hindus, who does that leave? OK, never mind.)

But ultimately if you vote RESPECT you get the SWP, and I’ve been on the Left long enough to find that a really distasteful prospect. Meaders is a good bloke, Mark Steel has some good lines and even Richard has his moments, but I can’t put any trust in the party. So RESPECT wouldn’t get my vote even if they were standing in my ward, which of course they aren’t. (And we’re back with the reasons I don’t trust the blighters.)

And I’m not spoiling the ballot. This isn’t on principle – I respect the old Bennite argument about keeping faith with the people who fought for the vote, but I don’t think casting a vote to maintain the status quo really qualifies. I think I can keep faith with them better by doing something that stands a chance of bringing about change. So a mass NOTA campaign would have been good – but it hasn’t happened, has it? In the absence of concerted ballot-spoiling, I’m not going to risk my vote getting filed under ‘apathetic’ – or ‘too contented to bother’ (one of Prescott’s, if I remember rightly).

I guess it’s the Greens again, then.

We could crawl

I had a letter recently from this young fellow, claiming to be my MP. Which was odd, as I’d understood that the job was held by this guy. It turns out that constituency boundaries are in the process of being redrawn, so that my ex-MP when Parliament is next dissolved will in effect be him rather than him – but until then he can hold his horses. (Opportunistic and misleading campaign literature, from a Liberal Democrat? Surely not!) Anyway, thanks to the people at TheyWorkForYou for sorting that one out, and when I say ‘people’ I actually mean Chris. Small world.

As it happens I also had a letter from my MP – the real one – the other day, complete with a copy of a letter from Hazel Blears, no less. Here’s what I’d written:

I am alarmed and disgusted to read of the latest proposal to expand the use of automated number-plate recognition (ANPR) systems on British roads. This is nothing other than an extension of intrusive surveillance for the benefit of the police. It is even being argued for in these terms: quoted in today’s Guardian, Robert Gifford of the Parliamentary Advisory Council for Transport Safety said, “One of the good things about ANPR is that people are often multiple offenders so it would provide useful intelligence,” adding that “expanding the use of technology for tracking the movements of cars could lead police to people who had committed other offences”. You’ll note that Mr Gifford made no attempt to justify this proposal in terms of benefit to road users, which is ostensibly his brief.The police forces of England and Wales are an institution like any other: they would rather have more power than less. However, the business of government is not to give the police (or any other institution) everything they ask for, but to stand up for the interests of the people of the country – including our interest in going about our daily business unmolested by intrusive and speculative surveillance. This proposal was not a manifesto pledge and runs counter to decades of Labour Party policy on surveillance and the police. It deserves to be thrown out. I trust you will oppose it to the best of your ability.

And here’s Ms Blears’ reply (addressed to my MP):

ANPR has been used by the Police Service for a number of years with the primary objective of denying criminals the use of the roads. It targets terrorism and other serious and organised crime, and volume crime such as burglary and vehicle crime. In addition, it is used to detect vehicle documentation offences such as uninsured driving and road tax evasion. It has been proved that many of those who are stopped for committing routine road traffic offences by the Police are themselves likely to have been involved in more serious offending.I am grateful to Mr Edwards for bringing these issues to the attention of the Home Office. Please let me assure you that this technology is being used to support record numbers of police on the street and is proving crucial in reducing crime. A great deal of care is being taken to ensure that its use of this technology [sic] is cognisant of both Human Rights and Data Protection legislation. ANPR is not a ‘Big Brother’ technology – it is designed to target those who choose to use our roads illegally and allows law-abiding citizens to go about their business uninterrupted.

The idea that an extension of intrusive surveillance for the benefit of the police might be, you know, a bad thing in some sense seems to have got lost in translation. Beyond that… well, I haven’t got the time or energy for a proper fisking now, but I’ll suggest one question: if ANPR systems are designed to make it possible to watch the entire population of road-users and target a sub-group which is defined and identified by the police, in what sense are they not a ‘Big Brother’ technology?