Counter-terrorism and counter-law

Quick one: here are the title, abstract and references of a paper I’ve just submitted for publication. (Fuller, Hegel and Bhaskar, together at last!)

Terrorism: that obscure object of counter-law

Contemporary counter-terrorist legislation is characterised by inchoate, preparatory and possession offences, which make it possible to convict individuals without proving that harmful acts have taken place. Following Richard Ericson, this tendency is analysed as a form of ‘counter-law’: law making designed to circumvent legal principles and erode the rule of law. It is argued that contemporary counter-law, unlike the Schmittian ‘state of exception’ model to which it is often related, is a purely conservative tendency, routing around the law to preserve order. The paper calls for counter-law tendencies to be identified, justified where possible and, if not justifiable, reversed.

Agamben, G. 2005. State of Exception. Chicago: University of Chicago Press.
Bhaskar, R. [1975] 2008. A Realist Theory of Science. Abingdon: Routledge.
Cameron, D. 2011. Statement to House of Commons. HC Deb 3 May 2011 cc 461, 473.
Cameron, D. 2013. Statement to House of Commons. HC Deb 3 June 2013 cc 1235, 1245.
Carter, H. 2011. “Jihad Recruiters Jailed After Anti-Terror Trial”. Guardian 9 September
Cole, D. 2001. “‘An Unqualified Human Good’: E.P. Thompson and the Rule of Law”. Journal of Law and Society 28(2): 177-203.
Crown Prosecution Service 2011. CPS Statement on R V Farooqi and Others.
Crown Prosecution Service 2012. The Counter-Terrorism Division of the CPS: Cases Concluded in 2011.
Dodd, V. 2014. “Soldier Jailed for Making Nailbomb Avoids Terror Charge”. Guardian 28 November.
Edwards, J. [no relation] 2010. “Justice Denied: The Criminal Law and the Ouster of the Courts”. Oxford Journal of Legal Studies 30(4): 725-748.
Elmer-Dewitt, P. 1993. “First Nation in Cyberspace”. TIME International 49.
Ericson, R. 2007a. Crime in an Insecure World. Cambridge: Polity.
Ericson, R. 2007b. “Rules in Policing: Five Perspectives”. Theoretical Criminology 11(3): 367-401.
Fuller, L. 1964. The Morality of Law. New Haven: Yale University Press.
Guinness, S. 2009. “The Universal Soldier”. Dublin Review 36, Autumn.
Hegel, G. W. F. [1820] 1991. Elements of the Philosophy of Right. Cambridge: Cambridge University Press.
Hodgson, J. and Tadros, V. 2009. “How to Make a Terrorist out of Nothing”. Modern Law Review 72(6): 984-1015.
Kostakopoulou, D. 2008. “How to Do Things with Security Post 9/11”. Oxford Journal of Legal Studies 28(2): 317–342.
Schmitt, C. [1922] 2004. Politische Theologie. Berlin: Duncker & Humblot.
Simmonds, N. 2007. Law as a Moral Idea. Oxford: OUP.
Waldron, J. 2008. “The Concept and the Rule of Law”. Georgia Law Review 43(1): 1-61.
Zubrinic, D. 2010. “481 Foreign Volunteers from 35 Countries Defended Croatia in 1991-1995”. Croatian World Network.

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Many a deed and vow

Getting to the march wasn’t easy. There was a long wait for the bus into town; when it came it stopped at every stop. After three or four stops a small boy, whose family had got on – complete with home-made placards – at the stop after mine, started tugging at his mother’s sleeve and asking urgently, Was that the first stop? Was that the first stop? Mum… Mum, was that the first stop? She tried to ignore him, possibly because (like me) she couldn’t work out what he was asking or why. Ignoring him didn’t help; fortunately, about five minutes later the bus stopped and we all had to get off. I measured the distance we had to walk to get to the march afterwards; it was the best part of a mile.

The route of the march itself was a mile and a half, give or take; it took us about an hour to get round, ‘us’ meaning me and the people I happened to be walking alongside. There was a contingent there from my local Labour Party, which – having just joined – I was hoping to find, but I never saw them. More by luck than judgment I’d ended up towards the head of the march. At one point, feeling a bit exposed out at the front, I stopped and let the march go by for ten minutes or so before rejoining it, but even then I was well up towards the head of the march, relatively speaking. When I decided to knock it off and go home, two hours after I’d first got to the end of the route, there were still people arriving. I stood and watched them for a while, thinking I was seeing the last few stragglers; a knot of people representing the chiropodists’ and podiatrists’ union seemed to be bringing up the very end of the march, which seemed fitting. Then I noticed, a hundred yards behind the podiatrists, a group of a couple of hundred marching under the usual assortment of union and SWP placards, with no indication that they were the last. I gave it up and went for a drink. I don’t think anyone knows how big the march was; I’d be surprised if it was less than 100,000 strong (the police estimated 60,000).

The march itself was orderly and peaceful, whatever else you may have read; things didn’t kick off, nobody got kettled or baton-charged, and hardly anyone even got arrested (there were four arrests – out of 60-100,000 – including one for being drunk and disorderly). It wasn’t a fun march, though; it didn’t have a carnival atmosphere, despite the entertainments laid on along the way (here a performance artist, there a samba band, and at the end of the route an extraordinary band playing a fusion of jazz-funk and traditional folk). This was partly because of the purpose of the march, which was antagonistic: it was a march against austerity and against the Tories, whose conference in the middle of Manchester has caused serious inconvenience to a lot of people (and bear in mind that there hasn’t been an elected Conservative councillor in Manchester since 1996, or a Conservative MP since 1987). The mood was defiant, and not defiant in a playful, “Tubthumping” kind of way – more a matter of defying authority, and defying people who think they’ve won. Pig pictures, slogans and masks abounded; one woman walked alone in a full-face pig mask, carrying a placard saying “I prefer apples”. (Think about it.) And this level of ridicule goes along with the mood of defiance – as if to say, why should we listen to you? The old “they say cutback we say fightback” slogan got an outing near where I was walking; the chanting was a bit feeble, but ‘fightback’ was very much the way people seemed to be feeling. This was particularly evident when we got close enough to the conference centre to make some noise in its general direction. For some people all the noise-making was probably energising, but I have to say I found it all a bit wearing; if I never hear a vuvuzela again I’ll be heartily grateful.

Back in the 80s, I remember the BBC taking notice of the peace movement (then in its second prime) by broadcasting a god-awful drama called “The Big March”. The big march in question was ostensibly a peace march, but what were the real motivations of the shadowy left-wing group organising it, eh? What indeed. In one scene the central character – a sincere but ill-informed peacenik – is marching (on a smaller march) alongside a seasoned veteran who periodically calls out “It’s coming yet!”, to cheers and echoing shouts from his fellow activists. She, the peacenik, naturally asks him what it is that’s coming yet, and what it has to do with getting rid of nuclear weapons. He launches into an explanation of how he and his co-conspirators are working within the peace movement for a much bigger goal: the goal of realising the unfulfilled revolutionary hopes of, er, Robert Burns:

For a’ that, an’ a’ that,
It’s coming yet for a’ that,
That Man to Man, the world o’er,
Shall brothers be for a’ that

Terrifying stuff, I think we can all agree. But probably not written by anyone who’s ever been on a march, and not only because slogans aren’t usually written in code. Perhaps I was just in a particularly disorganised part of the march, but the chants and slogans of my fellow activists were more reminiscent of that kid on the bus: I struggled to hear what they were saying, and then struggled to work out why. (What was that – “whose speech? free speech!”? No, hang on – “whose streets? our streets!”. Well, OK.) It just wasn’t that unified; there wasn’t a single revolutionary message that brought us all together (although I have to admit “Tory scum” was pretty popular).

If we weren’t being ruthlessly welded into a weapon of subversion, we didn’t conform to the opposite stereotype either; we weren’t a lawless rabble (although some of the dancing to that folk-funk band was pretty out there). If you’ve followed reports of the march in the press – never mind Twitter – you’ve probably formed the impression that spitting, egg-throwing and close-range intimidation was very much the order of the day. It wasn’t; these stories are so unrepresentative of the march as to be basically false. It’s like the old ‘black sheep’ joke: don’t say “all left-wing protesters are thugs”, say “in one section of one march there were a number of protesters, who may or may not have been left-wing, one of whom spat on Michael Crick at least once”.

Let’s be clear: there was no great failing in the march that ‘allowed’ those individuals to ‘become the story’. On one hand, what is the march supposed to have failed collectively to do? I can’t imagine any feasible mechanism that could have stopped those people from joining the march (as I did), or from doing what they did once there. On the other – more important – hand, that story didn’t just happen: it was written, by people who chose to write it that way and knew (or could have known) that they were grossly misrepresenting the march. And there are reasons why they did this. Often, I think, the reason why right-wing journalists write about violence and thuggery on the Left is that, when they look at the Left, that’s what they see. Whether violent acts are widespread or sporadic, major or minor, real or very largely imaginary is secondary: any actual violent incidents are simply outward confirmation of the violence inherent in the Left. An extreme example: in the late 90s I was on the Steering Committee of the Socialist Society, which involved attending monthly meetings in London. The meetings weren’t eventful; 10-15 people would turn up, we’d get through the agenda by lunchtime, and sometimes someone would give a paper or there’d be a guest speaker. I was pretty chuffed to have got on to the Steering Committee (although it wasn’t actually a contested election) and, before my first meeting, made the mistake of telling someone at work about it. On the Monday morning, another of my colleagues greeted me: “Have a good time in London? Kick many coppers, did you?” I was startled and genuinely confused. “Did you kick many coppers?” she repeated, as if for the hard of hearing. “On your demonstration.” I explained earnestly (clearly there’s been some misunderstanding) that there hadn’t been a demonstration, I’d gone down for a meeting… “Yeah, your socialist meeting – same thing. That’s what you lot do, isn’t it?”

Well, no, it’s not; we know that, and (judging from their firm but low-key presence, and those four arrests) the police know it too. But the Right believe it is, and the Right will always believe it, or affect to believe it. After all, what incentive have they got for not believing it? Define violence as illegitimate – as the mark of political illegitimacy – and then find reasons to denounce the Left as violent: there’s no reason this should ever stop working for them. And the way it works is to put us on the back foot, set us wringing our hands and writing earnest articles about how this sort of thing has no place on the Left. It’s divisive, demobilising and above all endless: they will always come back for more.

The ultimate example of this (so far) is the Tweet in which Dan Hodges announced

The fact delegates to the 2015 Conservative party conference can’t enter without feeling intimidated is a national disgrace.

Now, work with me here: what’s Hodges actually saying? Is protest illegitimate? (Not Hodges’s word, but if something’s a ‘national disgrace’ I think we can assume that whatever brought it about isn’t a legitimate thing to do.) Surely not. Might different considerations apply to protest in large numbers? I think most of us would be reluctant to go down that road, if only from familiarity with the sorites paradox. Is protest only legitimate if it’s targeted at the people directly responsible for the problem in question (viz. the government) rather than ordinary decent people with no direct responsibility (viz. Tory party members)? That won’t work, because the problem people were protesting about was, precisely, the power and prestige of the Conservative Party, in which individual members have a small but definite stake. (If Labour were in power and doing things many people disagreed with, I’d take “Labour scum” as fair comment – it’d be unwelcome and hurtful, clearly, but I’d know where it was coming from and accept that I’d laid myself open to it.) Is protest not legitimate if it hurts people’s feelings? Is it not legitimate if anyone hears? Or is it just flat-out not legitimate, what with the Tories having won the election?

Hodges’s position seems to echo Peter Ramsay’s theory of ‘vulnerable autonomy’, which Ramsay used to explain the rationale of the ASBO; the idea seems to be that making somebody feel unhappy is itself an illegitimate exercise of coercion, against which the previously-happy person has the right to be protected. Carried into politics, and into the field of political protest in particular, this essentially amounts to redefining speech as violence – and, as we’ve seen, violence is the border-post of political illegitimacy, the point where politics ceases. These are deep and dangerous waters, and I recommend my friends on the left to get out of them pronto.

This was a big march; it was a big, well-organised march that went off peacefully; it was a big, successful march. That’s what we need to hold on to, and the message we need to put out. It’s not as if a march like that is going to get a fair depiction in the press or on the BBC. Not in the short term, anyway – in the longer term I’m hopeful, despite all the evidence. It’s coming yet for a’ that.

Dangerous decisions? (1)

On the face of it, the Supreme Court judgment in Moohan and the Divisional Court decision in the case of Unison (No.2), R (on the application of) v The Lord Chancellor don’t have a lot in common, other than both being delivered in the last couple of days. In one case, a prisoner challenged the legality of the Scottish Independence Referendum (Franchise) Act 2013, on the grounds that its exclusion of prisoners from voting in the referendum was counter both to Article 3 of Protocol 1 of the European Convention on Human Rights and to the (putative) common law right to vote. In the other, the union Unison challenged the imposition of fees on would-be employment tribunal claimants, claiming that this denied any effective access to justice to many – or most – potential claimants, while also discriminating indirectly against some (poorer) groups. In both cases the decision went against the claimant.

I think they do have something in common, both in the way they were decided and in the reasons why they were brought. In this and the next couple of posts I’ll be explaining why I think both of these were bad – and dangerous – decisions. (Background and discussion: Mark Elliott on Moohan; Lauren Godfrey on Unison (No.2), R (on the application of) v The Lord Chancellor.)

Moohan first. The Supreme Court was divided in Moohan, but the majority drew a fairly straightforward distinction between the Scottish referendum and the ECHR’s

free elections [to be held] at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature

and thereby carried out one of the least lovable but, arguably, most important functions of the courts: telling claimants that, however good their case might seem, they can’t win it that way. (Lords Kerr and Wilson argued that the referendum was, potentially, the first stage in the formation of a new legislature and hence did in fact engage the people’s right to free expression in the choice of legislature. This seems like a stretch.)

Anyway, so far so uncontroversial – a disappointing outcome for believers in prisoners’ votes, but a reasonable one. The problems start, for me, with the subsidiary ‘common law’ argument. I’ll quote from the case report. Have patience; I’ve cut the quotes down as far as possible, but no further.

Lord Hodge:

I do not think that the common law has been developed so as to recognise a right of universal and equal suffrage from which any derogation must be provided for by law and must be proportionate. … for centuries the right to vote has been derived from statute. The UK Parliament through its legislation has controlled and controls the modalities of the expression of democracy. It is not appropriate for the courts to develop the common law in order to supplement or override the statutory rules which determine our democratic franchise. … [A] common law right of universal and equal suffrage … would contradict sections 2(1)(b) and 3(1) of the 1983 [Representation of the People] Act. … the appellants’ proposition has to be tested against the provisions of the 1983 Act. So tested, I am satisfied that there is no common law right of universal and equal suffrage

While the common law cannot extend the franchise beyond that provided by parliamentary legislation, I do not exclude the possibility that in the very unlikely event that a parliamentary majority abusively sought to entrench its power by a curtailment of the franchise or similar device, the common law, informed by principles of democracy and the rule of law and international norms, would be able to declare such legislation unlawful. The existence and extent of such a power is a matter of debate … But such a circumstance is very far removed from the present case, and there is no need to express any view on that question.

Lady Hale:

It would be wonderful if the common law had recognised a right of universal suffrage. But, as Lord Hodge has pointed out, it has never done so. The borough franchise depended upon royal charter. The “40 shilling freehold” county franchise appears to have been the creation of Parliament. Every subsequent expansion of the franchise, from the great Reform Act of 1832 onwards, has been the creation of Parliament. It makes no more sense to say that sentenced prisoners have a common law right to vote than it makes to say that women have a common law right to vote, which is clearly absurd.

Lord Kerr (who dissented from the majority decision):

The common law can certainly evolve alongside statutory developments without necessarily being entirely eclipsed by the latter. And democracy is a concept which the common law has sought to protect by the incremental development of a system of safeguarding fundamental rights. … It is therefore at least arguable that exclusion of all prisoners from the right to vote is incompatible with the common law. … I acknowledge, however, the force of the point made by Lord Hodge that, insofar as a claim to a common law right to vote conflicted with sections 2(1)(b) and 3(1) of the Representation of the People Act 1983, it could not succeed.

Lord Hodge’s argument is, surprisingly, both crude and incoherent. Crudity in legal argument isn’t necessarily a bad thing – sometimes “you can’t do that” is all there is to say – but incoherence is more of a concern. The question at issue is whether a common law right can take precedence over a specific statutory provision. Hodge’s reply is that this can’t happen, because if it did the result would be… to give a common law right precedence over statute: “the appellants’ proposition has to be tested against the provisions of the 1983 Act”; “a common law right of universal and equal suffrage … would contradict sections 2(1)(b) and 3(1) of the 1983 Act”. You can’t do that, in other words, because that is a thing that you can’t do.

It’s a circular argument – and a tight circle at that – but that’s not to say that it’s invalid. The argument gets more difficult – and, I would say, incoherent – when Hodge argues that, while the common law cannot extend the franchise, it could if necessary prevent its curtailment. But if, for example, a Disenfranchisement (Females) Act had been passed into law (and it wouldn’t have much effect until it had), then to “declare such legislation unlawful” would be precisely to “extend the franchise beyond that provided by parliamentary legislation”: parliamentary legislation would have provided that women should not vote. Hodge could argue that the ‘curtailment’ argument referred specifically to drastic measures in resistance of a parliamentary coup, and make the distinction with the prisoners’ votes issue that way: nobody would argue that the clauses in the 1983 Act debarring prisoners from voting represent “a parliamentary majority abusively [seeking] to entrench its power by a curtailment of the franchise”. But then the question is back with Hodge: why should “the common law, informed by principles of democracy and the rule of law and international norms” not have a voice when less extreme encroachments on democracy are at issue? Hodge’s argument seems to be that the common law should be like King Arthur and lie sleeping until England’s hour of need; I don’t see how he justifies this assumption.

Lady Hale’s argument is more coherent, but coherence is bought at rather a high price. She argues that voting rights are, have always been and will always remain a creature of statute; this has the slightly alarming implication that (contra Hodge) there would in fact be no common law case against the Disenfranchisement (Females) Act. Faced with a conclusion like this, it’s worth asking where the argument went astray. It’s certainly true that there was no common law right of universal suffrage until universal suffrage had been established by statute; however, I don’t think this entitles us to conclude that there is now no such right. The assumption in Hale’s argument seems to be that the common law is some sort of pre-statutory substrate dating back to King John, by now very largely paved over by successive efforts to legislate and codify. Hodge’s argument suggests a very different way of thinking about the common law: as a body of shared and more or less clearly articulated assumptions; a framework in which to think about, and debate the limits of, socially-responsible law-making and interpretation of laws. As far as universal suffrage is concerned, in any case, the line between the arbitrary inventions of statutory enactment and the realignment of legislation with common law principle cannot be drawn as clearly as Hale would like. If 1832 and 1867 redefined the franchise, it could be argued that the franchise extensions of 1928 and 1969 represented reactive vindications of the principle of universal suffrage, in the light of changing understandings of the meaning of ‘universal’. Lady Hale’s argument suggests that there is no particular reason why the franchise was extended to all 18-year-olds in 1969, and not to (for example) only those 18-year-olds whose parents had at least one higher degree, or all 18-year-olds plus 17-year-olds whose surname began with a P. Common law principles articulating themselves through statutory enactment? Perhaps that would be a mystification, but Hodge’s model of “common law, informed by principles of democracy and the rule of law and international norms” seems relevant here. Certainly it would seem to fit the bill better than a kind of sawn-off positivism, which declares that all there is to say about (electoral) law is that it is what the executive happens to have declared to be law.

Lord Kerr’s argument, lastly, is more subtle than Lord Hodge’s but even less coherent. He acknowledges that the common law has developed pari passu with statute, and that it may represent a resource of principles by which to judge, and potentially disqualify, statute-made law. He even floats the possibility that the common law might judge the exclusion of prisoners from voting and find it wanting. His argument comes back to earth with a bump, however, with a qualified acknowledgment of Hodge’s argument, that a common law principle cannot overrule a statutory provision. And, of course, if that’s the case there’s no argument to be had here. (Except that Hodge himself acknowledged that it’s not invariably or necessarily the case…)

We’re used to legislation being ‘read down’ to comply with the European Convention on Human Rights; the provisions of the ECHR are treated, if not as a hard limit, certainly as a hard reference-point, any conflict with which needs to be managed down and (as a last resort) flagged up. What this means is that there is a stock of individual rights which (it is generally acknowledged) government action and statutory law-making are expected to respect, however imperfectly these rights may be vindicated in practice. This isn’t the only way to vindicate citizens’ rights against the law and government, and may not be the best; it involves a reliance on (on one hand) the text of the Convention and (on the other) the specialised jurisprudence of its professional interpreters, with the alternate risks of treating the text as holy writ and reading contemporary assumptions (not to mention contemporary debates and contemporary jargon) into it. Personally, I have a temperamental sympathy with the idea of deriving such rights and safeguards from common law; it chimes with my Fullerian views on the law as an inherently moral project. But Moohan, and these rather scrappy comments from three Lords of Appeal in Ordinary, suggest that this may be a utopian prospect.

The Court paid little attention to the current government’s entrenched opposition to giving prisoners the vote, and rightly so. The roadblock in the way of asserting common law rights is not political but statutory, even constitutional: the idea of statute law as bedrock runs through all three comments, and its effects are, if possible, even more conservative than outright deference to the executive would have been. The trouble is, common law rights would mean nothing unless they could be asserted against statute. Lord Hodge, to his credit, recognises that there may be situations in which common law rights must be asserted against constitutionally legal decisions, but he defers any such activist role for common law lawyers to a distant and catastrophic future – just as Lady Hale relocates the common law to a distant and almost pre-legal past. From this decision there seems little hope of the common law playing any sort of safeguarding role in the present tense, as ECHR jurisprudence currently does. Good job there’s no realistic prospect of Britain repudiating the ECHR, eh readers?

Update 21st December

One enterprising visitor yesterday found their way to a previous post on this topic (which I’d completely forgotten), The barren weeks. In that post, written in 2011, I quoted Lord Wilberforce’s dictum from 1982 – “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” and described this as a statement of ‘the common law position’. What I didn’t do in that post was to acknowledge that the vote was one of those rights which had been ‘expressly’ taken away: prisoners’ voting rights in England and Wales – always circumscribed – were removed in the Representation of the People Act 1969, and this ban was restated in the 1983 Act.

In the 2011 post I denounced the voting ban as running flatly counter to the position expressed by Wilberforce. This was hasty; a more attentive reading shows that Wilberforce’s statement is entirely compatible with prisoners being statutorily deprived of the vote – or any other identifiable right, for that matter. In fact, the apparent contradiction between Wilberforce’s statement and the relevant legislation demonstrates how accommodating the common law can be, and will tend to be. I asked yesterday whether common law could take the activist role envisaged by Lord Hodge in relatively normal conditions. Perhaps it’s also worth asking whether even a catastrophic governmental assault on the rule of law would rouse the common law from its complaisance – and whether we would recognise such an assault in time.

WIP 2: Public nudity and the future of the ASBO

Then, back in October, I wrote a short piece for The Conversation. I recommend it: they were an absolute pleasure to work with, and it meant my work reached a four-figure audience with very little effort on my part. Here it is:

How the end of the ASBO could make naked ramblers of us all

By Philip Edwards, Manchester Metropolitan University

Stephen Gough – widely known as the Naked Rambler – has lost his case at the European Court of Human Rights in Strasbourg, which disagreed that his repeated convictions and jail terms violated his rights to private life and freedom of expression.

It’s just the latest in a series of setbacks for Gough, who had just seven days of liberty between May 2006 and October 2012. Earlier in 2014, he was arrested as he left the prison where he had just completed a 16‑month sentence for public nudity. A police officer approached him, wearing his signature outfit of socks, boots and rucksack, and offered him a tracksuit to put on. When he refused, he was arrested and remanded pending trial.

On October 6 he was sentenced to two and a half years in prison. If, at the end of his current sentence, Gough once again walks out of prison au naturel, the same thing will presumably happen again.

Given the Court’s decision, Gough’s nudism seems likely to confine him to prison and police cells indefinitely – odd, given that public nudity is not a crime. There is a criminal offence of “disorderly behaviour”, and Gough has previously been found guilty of it. But that wouldn’t get him locked up, since the maximum penalty is a fine.

There is also an offence of “exposure” (maximum sentence two years) – but to be found guilty of this you have to have displayed your privates with the intention of causing alarm or distress, and Gough has shown no such motivation.

Why, then, is he serving a sentence longer than any he would have got for being a flasher? Because of an ASBO.

Clampdown

Gough is under an anti-social behaviour order banning him from appearing in public with his buttocks and/or genitals exposed (considerately, the order makes an exception for nude beaches). The sentence for breaching an ASBO can be as high as five years in custody; if there are repeated breaches, it’s expected that each new sentence will be higher than the last. So: 16 months last time, this time 30.

An ASBO can be given to anyone acting in a way that causes, or is likely to cause, harassment, alarm or distress. We do not know that Gough’s nudity had offended anyone, but his ASBO could be justified on the basis that somebody was likely to take offence sooner or later.

Once the ASBO was imposed, on the other hand, Gough was in trouble the moment he breached it; the question of how much offence he was causing (if any) became irrelevant. In effect, appearing naked in public is now illegal, for one person – the one person most committed to doing it.

And given Gough’s sincere personal commitment to going naked, it’s hard to see a way out.

His ASBO has no time limit, as do many of those currently in force. ASBOs are sometimes lifted, but usually on the basis that the problematic behaviour has ended. Gough has had no success appealing against earlier convictions, including one case in which a district judge declared that public nakedness was not only disorderly but met the standard of “insulting, abusive and threatening” behaviour.

Unless Gough can persuade his next jury that his beliefs are a reasonable excuse for breaching his ASBO, another conviction is inevitable.

The good news, on the face of it, is that ASBOs are on the way out. An act replacing the ASBO was put before Parliament in 2013 and became law in March 2014, meaning the new injunction powers should finally be available early in 2015.

The bad news, though, is depressing indeed: the new regime offers little hope for people in Gough’s situation. Not only will existing ASBOs remain in force, but the new injunctions for anti-social behaviour will be even easier to impose – and their power will arguably be even more controlling.

Contempt and contrition

An injunction can be served on someone who “threatens to engage” in anti-social behaviour. In the residential context, the bar is set still lower, with anti-social behaviour defined as “conduct capable of causing housing-related nuisance or annoyance”. The new injunctions can also included positive requirements as well as prohibitions.

Unlike an ASBO breach, breaching the new injunctions is not a criminal offence; rather, it is contempt of court. That means that instead of standing trial, an individual who breached an injunction would face a committal hearing. If contrition was expressed, the contempt would be “purged”; if not, the judge would pass sentence, which could be anything up to two years in prison. Contempt does not create a criminal record, but this is cold comfort.

For a nonconformist like Gough, or anyone else whose behaviour might be deemed anti‑social, the new powers are alarmingly draconian. Jury trial for an ASBO breach at least offers the remote possibility of acquittal; a judge, sitting alone, will have no reason to look beyond the facts of the conduct amounting to contempt.

The ASBO is widely agreed to have outlived its usefulness. Unfortunately, its replacement looks set not just to retain most of the ASBO’s negative features, but to add some more of its own.

From 2015, individuals whose harmless and legal behaviour causes offence will start to be subjected to lifelong packages of personally-tailored coercion, including positive requirements as well as prohibitions, all under the ever-present threat of a prison sentence.

Stephen Gough’s situation might seem extreme today – but in a few years, it might be all too familiar.

This article was originally published on The Conversation.
Read the original article.

A dry season

1. It’s great when you’re straight, yeah

I have a beer most nights – just the one, usually. I’m fairly conscientious about my intake; I have one dry day every week and often two, and tot up my weekly units every so often (the number’s never been at all alarming). But a low level of regular alcohol consumption is a normal feature of my life, and has been for some time. I don’t think I’ve gone as long as ten days without a drink since an ill-advised ‘detox’ attempt back in the 90s (three long weeks of muzzy caffeine withdrawal); before that you’d probably have to go back to my teens or early 20s.

I’m not a heavy drinker, though, and never have been; I’ve never worried I was overdoing it, never felt I ought to cut down, never been tempted by a ‘dry spell’ like Alcohol Concern’s ‘Dry January’ teetotalism-for-charity initiative. That said, if I did try and abstain for as long as a month I think I’d find it tough. Beer writer Pete Brown has written a couple of times about his own personal ‘dry January’ routine (“I try to go dry for January every year, and have done so for years – since long before it became a piece of nonsense to beat people with”). His account makes it sound – as Guy Debord wrote of his own alcoholism – émouvant mais difficile:

In the first few days, you notice the better sleep, the higher energy, the greater clarity of thought. … After a couple of weeks, you realise you’re thinking differently. You’re more in the moment, more thoughtful, more connected. This is not always pleasant. But like the physical benefits, it does feel like it’s doing you some good. … By the third week, you start to notice that everything is bright and shiny and hard. Perhaps a little TOO bright. It’s natural and healthy to sometimes want to fuzz the edges and turn the lights down to mood. I’ve missed that.

Whether that ‘you’ would include me – whether somebody who averages (say) a pint a day is limescaling his sensorium by doing it, such that three weeks’ abstention would give his system a hard reset and make the world turn dayglo – is an interesting question; I tend to think the answer’s No, but I’m not in a hurry to find out.

That small point aside, it’s clear from Pete’s post that it was quite a long month. Which is no surprise – alcohol is a normal part of most adults’ lives: in a 2011 government survey, two-thirds of men and 54% of women claimed (admitted?) to have had a drink in the previous week. For anyone other than a very occasional drinker, I think a month would be plenty. Admittedly, alcohol is less normal that it has been – in 1998, a similar survey found that 75% of men had had a drink in the previous week; while, in another recent survey, only 39% of under-16s reported ever having drunk alcohol, the lowest figure this survey has ever recorded. But it’s normal for all that; after all, giving up alcohol for a month wouldn’t be something you do for charity if it were something you’d do anyway.

So how about giving alcohol for four months?

People who repeatedly commit alcohol-related crime will be forced to wear ankle tags that monitor if they are still drinking, under a year-long pilot scheme. The “sobriety tags”, to be worn around the clock, will enforce abstinence by measuring a person’s perspiration every 30 minutes and testing to see if it contains alcohol. If any trace is found, an alert will be sent to the offender’s probation officer and they can then be recalled to court, where they may be resentenced or face sanctions such as a fine.
…
It is anticipated that up to 150 offenders will be fitted with the tags. They will be banned from drinking alcohol for up to 120 days, and the tag will test them to see if they flout the ban. Offenders will be screened before being tagged, and the scheme will not be used on people who are alcohol-dependent and require specialist support. The scheme, being introduced by the mayor of London, Boris Johnsons, builds on a similar scheme in the US and aims to reduce alcohol-related reoffending, ease pressure on the police and courts, and make streets safer.

A salutary initiative which will help some potentially dangerous problem drinkers clean up their act (the view of Deborah Orr in the Guardian)? Or should we be more sceptical?

2. Your weakness is none of my business

The London pilot was provided for in section 77 of LASPO; on its completion the scheme will either be rolled out nationally or repealed altogether. (Section 77(7) is an interesting bit of drafting; I don’t remember seeing an “if this doesn’t work, let’s just forget about it” clause in an Act of Parliament before.)

There are two ways of reading the pilot: it depends whether you see it as having a good chance of success, or as being highly likely to fail. My initial reaction was the latter. If you put me (or, I venture to suggest, most adults) on a total four-month alcohol ban, the result would be a foregone conclusion; inflicting a scheme like this on repeat alcohol offenders is setting them up to fail sooner rather than later. Repeat offenders tend to be people with problems – you don’t make a habit of putting yourself at risk of arrest if you’ve got lots of other, safer options. Repeat alcohol-related offenders, specifically, are likely to have a problematic relationship with alcohol, which is likely to involve compulsive activity and impaired judgment – which in turn means that people with alcohol problems are highly likely to breach controls imposed on them. (Although if candidates for this scheme do have drink problems, they’ll have to deal with them on their own: the scheme excludes anyone whose problems rise to the level of dependency, qualifying them for support as well as for control measures.)

The role played by the probation officer in this scenario is particularly saddening. Probation was once a coherent alternative to a custodial sentence, based on the belief that a supportive relationship with a responsible citizen, outside prison walls, can help an ex-offender go straight. Over the last thirty years there has been a stronger and stronger insistence on portraying law-breakers as both wicked and dangerous, and hence on the necessity of both punishing and controlling them. The result has been a growing presumption, both that prison is the right place for a convicted offender, and that ex-offenders in the community should be treated no differently from those inside – treated, in other words, as dangerous wrongdoers in need of both punishment and control. With suspended sentences replacing discharges, and community sentences replacing probation as an alternative to sentencing and then having custodial strings attached, the result has been a gradual annexation of probation by the prison system. The role of the probation worker in this scenario is not to “advise, assist and befriend” (the original mission of the probation service) but to monitor ex-offenders, control them and where necessary return them to court for sentencing.

If the scheme works as described – if an alarm goes off every time a tagged offender has a drink, leading automatically to the decision that the offender’s alcohol abstinence order has been breached – the scheme will “reduce alcohol-related reoffending [and] ease pressure on the police and courts” by one means only: by making 150 offenders’ lives a bit less pleasant, subjecting them to stress and anxiety for a while, then recalling them to court and rubber-stamping a prison sentence. (Admittedly, the scheme does not mandate prison sentences for breach; alternative sentences are available, for example a fine. But if you think that repeat alcohol-related offenders will be deterred from reoffending by a fine, I’ve got news for you about human nature.) So its net effect on those 150 people will be to interfere with their lives, imposing technologically-mediated humiliation and harassment, before stigmatising them as failures and disrupting their lives still further. This isn’t rehabilitation, it’s sadism.

If the scheme is intended to work as it is described here, it is being undertaken either naively (in which case it will fail horribly) or cynically. And if it is being undertaken cynically, it represents a peculiarly debased and unlawlike use of the criminal justice system: the imposition of behavioural conditions on an offender, in place of a punitive sentence, in the expectation that the offender will breach them and incur a punitive sentence for the breach. This use of criminal penalties will be familiar to anyone who recalls the history of the ASBO: we remember cases where rowdy youths were barred from particular streets, a graffiti-sprayer from using public transport, a suspected drug-runner from sitting in the front passenger seat of a car – in each case, with the force of a criminal offence. In each case, the offender has (ostensibly) had the option of modifying his behaviour and walking free, but only by avoiding behaviour which is legal and normal for other citizens, and which can’t be avoided without greatly reducing his freedom to lead a normal life. And, in each case, the offender is held responsible for any breach and for the penalty attached to it, thus incurring the stigma of recidivism as well as that of law-breaking. Barring repeat drink offenders from drinking – by law – is only a more direct and straightforward version of the same logic. The inference is that problem drinkers – like anti-social youths – are now seen as a subject population, a minority group needing to be controlled for the sake of the majority, and whose own rights can be disregarded.

3. Computer says No

If the scheme is intended to work as described here… That may be a big If. The Alcohol abstinence and monitoring requirement was added to LASPO after lobbying from a group of American professionals with experience of a similar scheme in South Dakota; one member is Keith Humphreys, a Stanford professor of mental health policy and former White House drug advisor. (Humphreys’s paper on the lobbying process (presented to the International Society for the Study of Drugs Policy) is a fascinating account of how policy transfer works.) In the South Dakota scheme, Humphreys writes,

[alcohol-related repeat offenders were sentenced] to mandatory sobriety coupled with daily testing. Those who tested positive were arrested immediately and given a modest sanction, such as a night in jail. In the 24/7 sobriety model, a slow, inconsistent and capricious system of monitoring offenders was transformed into one that provided swift, certain and fair sanctions for drinking.

The effects were dramatic. A stunning 99.4 per cent of the over five million breathalyser tests administered to offenders have been negative. Despite the punishment for drinking being modest, its certainty and swiftness motivated many previously recalcitrant offenders to change their ways.
…
Research by the RAND Corporation – a US-based non-profit global policy think tank – found that 24/7 sobriety dropped repeat drink driving arrests by 12 per cent. The same study also yielded a pleasant surprise: domestic violence arrests dropped by 9 per cent, despite not being a focus of the programme. … This week, under the leadership of Mayor Johnsons and his team, a pilot of the programme will be launched in South London. Leaping the pond will come with some challenges, particularly around delivering sanctions swiftly within the constraints of British law, but local tailoring of innovations is always an essential part of making them spread.

It works, in other words. The figures are in: not only do offenders comply with the stay-straight provisions more than 99% of the time, the effects can be seen in the crime figures.

What should we make of this? I’ve got three comments, of increasing generality; let’s say, one technical, one analytical and one philosophical. The technical comment is this: I can’t believe it. I’ve looked at the South Dakota 24/7 Sobriety Program Evaluation Report (dead links removed – PJE, 2021); it tells me that, when 4,009 drink driving offenders were ordered to report to a judge twice a day to be breathalysed, for periods averaging three months, 98.1% of those tests were negative and only 0.3% positive (1.3% of tests did not take place because the participant was excused; 0.3% of tests were unauthorised no-shows). Pace Humphreys, this isn’t “a stunning 99.4 per cent of … over five million breathalyser tests”, for two reasons. Firstly, the 4,009 offenders in the sample took 817,926 tests (an average of 204 apiece); if it’s a representative sample, we can infer that that rate would apply across the programme as a whole, but we haven’t got that data. Secondly, the figure of 99.4 per cent includes the 1.3 per cent of tests ‘excused’ and excludes the 0.3 per cent of no-shows; the real positive rate is the total of positive tests as a proportion of the tests taken, or 98.1/(98.1+0.3), which works out as a (stunning) 99.7% pass rate. In the course of their participation in the programme, 2,659 of the 4,009 participants – slightly less than two-thirds – had no negative tests at all. (These are convicted drink drivers, remember, being breath-tested twice a day for a period of months.) Of the remaining 1,350, between 584 and 802 (between 14% and 20%) had precisely one negative test; the number who had four or more negative tests is somewhere between 131 (one in 31) and 267 (one in 15). (The published figures lump together unauthorised missed tests and negative tests as ‘Failures’, making it difficult to derive the exact number of participants who had a certain number of negative tests.)

These figures seem to represent a level of behaviour modification which I find incredible. The programme’s advocates will say that the novelty of this outcome is related to the novelty of its key innovation, the use of those “swift, certain and fair sanctions” – if people know that one drink will infallibly earn them a night in the cells, they’re strongly motivated to stay clean. Maybe so (I’ll say a bit more about this approach further down). Even so, purely based on my knowledge of human nature, I find it very hard to imagine any combination of rewards and incentives having a 99.7% success rate in modifying entrenched behaviour, in any population (imprisoned populations included). Then again, based on my knowledge of British (European?) human nature. I have just as hard a time imagining the participants in such a scheme meekly turning up to be breathalysed 98.4% of the time, but that certainly appears to have happened in South Dakota. It’s a cultural difference, perhaps; when it comes to criminal justice agencies, the British (and British law-breakers in particular) just don’t respect their authority – or not the way that South Dakotans do.

In any case, with regard to the London pilot the point about showing up is moot – the testing is to be carried out by an ankle bracelet, replacing the stigma and inconvenience of twice-daily reporting with the stigma and humiliation of wearing an ankle shackle that spies on you. But the point about the near-as-dammit 100% negative test rate, and the seemingly total behavioural transformation brought about by the programme, is absolutely key – and I think there’s a genuine case for saying that, like a Communist bloc election result, these figures are just too good. A clue of sorts is provided by the RAND research referred to by Humphreys – presented, in the form of a paper by Beau Kilmer, to the ISSDP conference mentioned earlier. In the published version of the paper, Kilmer and his colleagues (Nancy Nicosia, Paul Heaton and Greg Midgette) write:

More than 17,000 individuals participated in the 24/7 Sobriety Project between 2005 and 2010 and their tests indicated that there were approximately 2.25 million days without a detected alcohol violation. This does not mean that there was absolutely no drinking on those days. Rather, it provides support for a reduction in the incidence of heavy drinking among a population with a history of problem drinking.

Emphasis added. Perhaps the South Dakota breathalysers weren’t all that sensitive; perhaps the scheme operated, in practice, like a benign version of the Philadelphia Lie Detector, scaring offenders into cleaning up their act without, for the most part, actually detecting whether they had done or not. The tiny minority of negative tests might be accounted for by the tiny number of occasions when participants turned up with a really substantial amount of alcohol in their system, e.g. still drunk from the night before. The use of breathalysers to carry out the twice-daily test raises the question of what level of blood alcohol concentration constituted a positive result; if the standard DUI level of 0.08% was being used, this would be entirely compatible with participants maintaining a relatively normal level of consumption of alcohol – which in turn would make that 99.7% pass rate considerably less surprising.

This kind of approach is not planned for the London trial, however. The Alcohol Abstinence Monitoring Requirement Toolkit produced by the Mayor’s Office (dead link removed – PJE, 2021) notes:

[LASPO] allows the court to specify that the offender cannot drink more than a specified amount of alcohol (expressed as the proportion of alcohol in any one or more of the offender’s breath, blood, urine, sweat or by some other means); thus allowing for the possibility of minimal drinking rather than abstinence. For the purpose of the pilot, this provision will not be used and complete abstinence will be enforced.

Sure enough, the statement to be signed by participants in the London trial states baldly “I must not drink any alcohol until my requirement ends.” This, however, raises the question of evidence. The most widely-cited figures for the South Dakota scheme appear to be based on a sample of 4,009 participants who submitted to a twice-daily breath test, which (according to Kilmer et al) did not return a positive result for low levels of alcohol. Generalising these results from South Dakota to South London – a vastly different setting both culturally and legally – is problematic enough. Using a ‘low consumption’ success story to justify a ‘total abstinence’ trial – in a different country, with a different legal system – is problematic in a more fundamental sense; it’s not comparing like with like.

4. He’s got ’em on the list

Still, the effectiveness of the South Dakota pilot is proven; there’s that 12% drop in repeat DUI arrests that we heard about, and the 9% drop in domestic violence arrests. (According to Kilmer et al, after being implemented the programme was rapidly extended to cover arrests for offences other than DUI – specifically including domestic violence – so it’s not quite correct for Humphreys to describe the fall in domestic violence arrests as a ‘pleasant surprise’, a side-benefit of a programme focusing on drink driving.) You can’t argue with the numbers.

Well, maybe not. But on reading the Kilmer et al paper it turns out that the ‘12% drop’ isn’t anything like as simple as a comparison between year 1 and year 2 in area A, or for that matter between area A and area B in year 2. Although the initial five-county pilot of the scheme might have lent itself to the second approach, analysis was made more complicated by the rapid and uncontrolled adoption of the scheme in other counties. The writers’ approach was to make a virtue of necessity, taking arrest data from the 66 counties of South Dakota – all of which had adopted the scheme by the end of 2010 – and calculating the overall extent to which the arrest rate was affected by the introduction of the scheme. The scheme was defined as having been introduced at the point where the numbers in the scheme in a given month first equalled 25% of the county’s average DUI arrests. The much quoted 12% drop is actually an incident rate ratio of 0.883 (p < 0.05), derived from a Poisson regression of five parameters. The outcome (arrest rate) for a given county and time period is assumed to be given by the sum of α, the effects of the scheme itself; β, other known factors associated with the county; γ, “unobservable characteristics of each county that are fixed over time”; δ, “fixed effects for each month in the sample”; and a dummy variable ε.

More data is better than less; in principle a 0.883 regression coefficient is actually more reliable, and hence more informative, than an eyeball comparison of two figures showing a 12% drop. (If you find this counter-intuitive, join the club.) The authors’ approach is also an ingenious way to get round the muddying of the waters brought about by the wide adoption of the scheme. But the method is still somewhat opaque (what difference might alternative estimates for ‘county’ and ‘month’ effects (β and δ) have made?), and concerns remain about the results, particularly given their relative weakness (repeat DUI and domestic violence arrests are not the only variables tested for, but the only ones where programme-related results rose to the level of p < 0.05).

Notably, the authors report “no statistically or substantively significant effect of [the programme] on first-time DUI arrests” and “suggestive evidence that it may have reduced reported traffic crashes involving men aged 18 to 40 years”. The coefficient for crashes involving 18- to 40-year-old males is 0.956 (95% CI 0.909-1.006); the figure for first-time DUI is 1.062 (0.955-1.181). One may be positive or null but is probably weakly negative; the other may be negative or null but is probably weakly positive; and neither of the two is statistically significant. In other words, the evidence for an effect on first-time DUI is no weaker than the crash-related evidence, but the effect in this case is positive – which is to say that this is, strictly speaking, “suggestive evidence” that the programme may have increased first-time DUI arrests. The single strongest result reported has nothing to do with the programme: according to the data, the Sturgis Rally (an annual motorcycle rally held in and around Sturgis SD) has an effect on repeat DUI arrests of 1.477 (1.330-1.641) and on crashes of 1.642 (1.293-2.086), in both cases with p < 0.001.

But let’s assume for the sake of argument that the figures are good. Let’s take it as given that Kilmer et al have shown that the effect of introducing twice-daily-breathalyser-monitored sobriety in county X in month m will be that county X‘s repeat DUI arrest figures, averaged over months m+1…m+n, are 12% lower than they were when averaged over months m-n…m-1. Now what? Or rather, now why? What’s the mechanism?

I ask this not because failure to specify a mechanism would invalidate the effect  – it wouldn’t – but because Kilmer et al do in fact seem to have a mechanism in mind. Consider the threshold used to define when the programme had been implemented – when the numbers in the scheme in a given month equalled 25% of the county’s average monthly DUI arrests – and the alternative threshold suggested later in the paper, five scheme participants for every 10,000 population. South Dakota has a population of 825,000, of whom 17,000 were on the programme between 2005 and 2010. This is over 2% of the entire population, and a considerably higher proportion of the population typically involved in DUI offences; Kilmer et al note that, in some counties, more than 10% of men aged between 18 and 40 participated in the programme at some point. And consider the expansion of the programme following the passage in 2007 of South Dakota House Bill 1072:

The unanimous passage of House Bill 1072 dramatically expanded the 24/7 program. The bill went into effect July 1, 2007, and provided funds to counties that wanted to adopt the program. The new law allowed judges to order anyone they believed had an alcohol problem, pre- or post-conviction, to participate in the program. The law also changed rules for those who lost their license for a repeat DUI offense. It had previously been possible for some of these individuals to receive a permit to drive only to and from work, but these permits were now conditional on 24/7 participation.

So participation could be ordered by a judge without the individual involved being convicted of anything. Moreover, continuing participation could be made a condition for holding a (restricted) driving licence, making participation in the programme more or less a life sentence.

My first reading of the Kilmer et al paper made me wonder if longer-term outcome effects were being confused with direct programme effects. In other words, I wondered if the reduction in repeat DUI arrests might not be a sign of problem drinkers taking the (enforced) opportunity to turn their life around – as in Orr‘s optimistic account – but merely of drinking being temporarily suppressed by the imposition of a stressful and demeaning reporting requirement. On re-reading the paper, I’m not convinced that the authors are even thinking in terms of outcome effects. Got an alcohol problem? Right – you’re on the programme. You’ll get off the programme eventually; if you start causing trouble then, guess what – you’re back on the programme. Alcohol problem solved!

5. As sloshed as Schlegel

Technically, I think the individual test data can’t possibly show what it appears to show, and hence that it doesn’t give reliable guidance for the London pilot. Analytically, I think the programme as described by Kilmer et al is one of mass behaviour modification rather than criminal justice – the idea seems to be, not to use the programme to help former offenders reform, but to put as many people as necessary through the programme for as long as necessary to bring crime down. And these points are separate from my philosophical concerns about the programme – concerns which remain even if we assume the validity of the test data and the crime drop figures.

Humphreys describes the scheme as delivering “swift, certain and fair sanctions for drinking”; Kilmer and colleagues describe the South Dakota programme as combining “frequent monitoring with swift, certain and modest sanctions for violations”. Swift and certain: you test negative, you’re off to the cells, no ifs, no buts, no phone call, no duty solicitor. What’s the problem? Maybe there isn’t a problem at all – maybe the problem’s with our way of thinking, or the presuppositions of our system?

The key principle in disposals like this is certainty: offenders need to know that a breach will result in instant and decisive penalty. Our criminal justice system resists such practice. The pilot’s weakness is that it could take weeks for action to be brought against offenders who drink while tagged. If an offender breaches the sobriety order, they will first have to be returned to court where further sanctions can be imposed. Imprisonment is only likely to result from persistent non-compliance. This isn’t swift and sure justice, but neither is it the Mayor’s fault – it’s a fundamental weakness in our system of probation which needs fixing.

Opinion polling for the GLA in 2011 found that sobriety orders were popular with the public (well over two thirds supported the idea). Doubtless some will disagree. I recall the horror of a prominent politician, partial to a shandy, on being told that an electronic device might be used to monitor someone’s alcohol consumption. And I wonder how long it will be before the civil libertarians complain that sobriety tags are an egregious breach of human rights…

Thus Nick Herbert MP (Con). I think this line of argument needs to be resisted. It’s fundamental, not to “our criminal justice system” but to the rule of law, that the law governs us as free individuals. The law is a system of rules which we can freely choose to follow; when we choose to obey the law (as we generally do), it is because we know that everyone is being asked to obey the same law, and because freedom and fairness can be maximised by everyone choosing to live by the same rules. We obey the law because the law is worth obeying, not because we have personally been commanded to do certain things – still less because we have been directly threatened with adverse consequences if we do not. To break the law is also a free choice, and one which may be made on rationally justifiable grounds; the choice of breaking the law may even be made under conditions which (rationally and/or morally) left no alternative course of action.

To be put on trial is thus to enter a field of judgment: are we guilty of committing a criminal offence or can our action be justified? To be put on trial is precisely to have our actions ‘tried’ (tested) against the standard of the law, and the possibility always exists – however remote it may be in the day-to-day operation of the courts – that it will be the law that blinks. However clear and unambiguous the law may appear to be, the outcome of a trial is never certain; a judge’s guidance may be overruled by a jury verdict; the law itself may be amended by an appeal court judgment. At its best, the criminal justice system respects the freedom and rationality of the law-breaker as well as the law-abiding citizen.

To say that we are governed by law, then, is to say two things. The first is that the law is a system of rules with certain characteristics – universality, comprehensibility, followability – which make it possible for each one of us to arrange our lives so that we obey it: the law respects our freedom. The second is that those who break the law are not only brought to account but allowed to put their case, protected by certain fundamental safeguards – the rules of procedural justice – which exist to ensure that nobody is unjustly criminalised. The law respects us as free and rational citizens, when we break it as well as when we obey it.

This scheme is unlawlike twice over. On one hand, the idea of “fair sanctions for drinking” tends to suggest that drinking per se should be sanctioned. At best it suggests that drinking should be sanctioned for certain, arbitrarily chosen people – as unlawlike a proposal as you could wish for, effectively substituting the rule of individual law-enforcers for the rule of law. On the other, contra Herbert, closing the gap between infraction and sanction is not “swift and sure justice”, or not for any meaning of the word ‘justice’ associated with the rule of law. Any kind of automaticity in declaring somebody a law-breaker – including but not limited to the technological automation delivered by alcohol shackles – subjects the law-breaker to the law, without defence or excuse, in a way that is corrosive to respect for the law.

Perhaps the most telling part of Herbert’s comment is his sneering reference to a critical politician being “partial to a shandy”. Herbert himself may be a teetotaller, but he must be aware that the great majority of his fellow-citizens are, in fact, “partial to a shandy” – and as such might have well-grounded concerns in response to the development of technology that enforces total abstention. The unstated minor premise, underlying Herbert’s complacency, is that alcohol shackles will never be a threat to us. Herbert’s confident that these measures will only be applied to them, that unruly minority whose behaviour needs controlling – and that we can trust law-enforcers to identify the people to control and modify their behaviour in the right way. (Deborah Orr’s message is much the same, dressed in more liberal language.)

But this isn’t the rule of law. It’s using the law, but using it as an instrument for controlling a deviant population (in this case problem drinkers). It’s using it – in Hegel’s image – like a man raising a stick to a dog.

A threat presupposes that a man is not free, and its aim is to coerce him by the idea of an evil. But right and justice must have their seat in freedom and the will, not in the lack of freedom on which a threat turns. To base a justification of punishment on threat is to liken it to the act of a man who lifts his stick to a dog. It is to treat a man like a dog instead of with the freedom and respect due to him as a man. But a threat, which after all may rouse a man to demonstrate his freedom in spite of it, discards justice altogether.
– Hegel‘s Philosophy of Right, thesis 99.

When strangers were welcome here

There’s a particular move in populist politics which I think of as the Death Spiral. (I was going to call it the Death Spiral of Hate, but – while indubitably more precise – that wording is probably cranking it up a bit too high for the first paragraph of a post.) It’s a bit like conjuring a folk devil and a bit like a political bidding war; it’s more contained and predictable than the folk devil phenomenon, though, and it’s unlike a bidding war in not needing a partner (although others can certainly join in).

It goes like this. First, somebody in government (or in friendly media) stokes up hatred against a particular group. Then the government responds to public concern – well, you’ve got to respond to public concern, haven’t you? – and takes action against the group. Here’s the twist: the action that the government takes doesn’t lead the hatred to subside; the angry mob doesn’t put down the pitchforks and douse the torches, satisfied that somebody’s finally listened to them and done something. The government’s action leaves the well of popular hatred very much undrained; it may even top it up. Because then, after all, the public can once again express its very real concerns – and that will give the government something to respond to (you’ve got to respond to real public concerns). Once started, the process can go round and round indefinitely: the government and its supporters sing an endless call-and-response of resentment and self-righteous severity, opposition parties are wrong-footed or forced to tag along, and everybody’s happy – except the poor sods who are getting interned, denied benefits, etc.

For example: five years ago Louise Casey – then working for the Labour government as a consultant on ‘community’ issues – argued that community sentences should be made both tougher and more visible. People carrying out unpaid work as part of a non-custodial sentence should do it out in public where people can see; to make sure people do see, they should wear those orange boiler-suits out of Misfits, or hi-viz jackets, or both. So people doing ‘Community Payback’ would become a familiar sight; instead of thinking of community sentences as a soft option, people would see the reality of ‘community punishment’ and think… well, what? Would they think, those kids picking up litter are really suffering – that looks just as bad as prison to me! It seems more likely that they would see people in orange boiler suits who weren’t working particularly hard (they might be chatting among themselves, they might even be stopping for a fag) and think, I used to think community service was a soft option – now I’m sure!. Five years on, the perception of non-custodial sentences as a soft option certainly doesn’t seem to have gone away.

My son brought another example to my attention the other day. You know this proposal to deny benefits to immigrants until they’ve been here for three months? Won’t that make them more likely to take any job that’s going, even below the minimum wage, even working cash-in-hand? “Mmm, yeah,” I said. And won’t that… I caught up. “Won’t that create more competition with the very lowest-paid British workers, thereby creating even more resentment of immigrants and even more pressure to get tough on immigration, again? Yes, I think it will.”

Whatever else I could say about Louise Casey and David Cameron, I don’t think either of them is stupid; as PM, Cameron even has a kind of intellectual praetorian guard, responsible for making sure that his ideas are in working order (as well as for preserving him from contact with any ideas from the outside world). I think he knows what he’s doing (as did Casey); I think he’s identified an appetite that will grow with feeding, and he’s making sure it’s fed.

It’s sometimes argued that populism is directionless and reactive, subject to lurches in any number of directions; it’s sometimes even argued that populism can or should be used by the Left (“where’s the Nigel Farage of the Left?” and so forth). On this way of thinking, ‘Death Spiral’ effects emerge when populism just happens to lurch in the direction of giving an unpopular minority a kicking. They may be no more than an unfortunate side-effect of giving the people what they think they want, in other words. Ed Miliband’s intervention gives the lie to this argument and throws the Death Spiral into relief, by demonstrating that it’s not the only way to address people’s worries about immigration. While it doesn’t necessarily go as far as Mike would have liked (and certainly isn’t framed in his terms), Ed’s statement takes on those who attack economic immigration and effectively calls their bluff. After all, the problem of low-paid immigrants – to the extent that there is such a problem – is by definition a problem of employers choosing to (a) employ immigrants to the exclusion of native workers and, not unrelatedly (b) to pay immigrants less than native workers; constrain those choices (whether from above, as Ed prefers, or from below) and a material source of conflict between two groups of workers disappears. (Those two groups may still hate each other on the basis of free-floating prejudice, but those feelings tend to fade over time – at least, they do if they aren’t reinforced.) Marxists know that the important antagonisms start with material interests, and that that’s where the changes need to be made. And so does Ed.

Another group which is supposed to take a grown-up view of immigration are the economic liberals, and particularly the intellects vast and cool and unsympathetic of right-libertarianism. Bryan Caplan certainly sets the right tone at the outset of his 2012 Cato Journal paper (PDF), arguing that there are no relevant differences between a Haitian being denied entry to the US and a US citizen going to Haiti on a relief mission and then being denied re-entry. (Oh, very well, a US citizen and all of his/her family went to Haiti to help out, and they were all denied re-entry. Happy now?) But we needn’t join Caplan in his helicopter to appreciate the force of his arguments against restrictions on immigration. Caplan addresses four arguments against free immigration, focusing on its effects on low-waged workers, welfare spending, cultural cohesion and the political sphere; he argues in each case that the costs may not be as high as they’re made out to be, and that any costs which are incurred can be mitigated at a lower overall cost than the cost currently imposed by restricting immigration. He concludes:

there are cheaper and more humane solutions for each and every complaint. If immigrants hurt American workers, we can charge immigrants higher taxes or admission fees, and use the revenue to compensate the losers. If immigrants burden American taxpayers, we can make immigrants ineligible for benefits. If immigrants hurt American culture, we can impose tests of English fluency and cultural literacy. If immigrants hurt American liberty, we can refuse to give them the right to vote.

There’s a lot to like about this paper (I’ve always considered myself a libertarian Marxist), but two aspects of Caplan’s argument gave me pause. One, exemplified by the passage quoted above, is the nonchalantly instrumental use made of some fairly sweeping restrictions on citizenship. It seems to me that to declare that any member of a defined category of individuals will be denied the vote – or denied welfare benefits, or taxed at a higher rate on equivalent income – is to institutionalise inequality, making members of that category significantly unequal to the majority in their enjoyment of the benefits of citizenship. In other words, Caplan is entertaining the possibility of addressing the lack of liberty involved in shutting people out from a given country by letting those people in as second-class citizens. (I don’t say Caplan is proposing doing so, as the main argument of his paper is that the disadvantages of free immigration are either non-existent or much less significant than we imagine. The second-class citizen solution is put forward as a subsidiary argument.)

I find this troubling on a number of levels. Firstly, if we’re talking in terms of nation states – as we plainly are if we’re talking about taxation and welfare benefits – I think it’s legitimate to treat the question of who is allowed to enter a country quite separately from the question of how people are treated within the country. Ultimately I’m for a world with no border controls and no borders, but ultimately I’m for a world with no wage labour. In the mean time, I think that making everybody within an arbitrary area on the map a full citizen, but making it difficult to enter that area, is a more equitable solution than making the border permeable but introducing gradations of citizenship within it. If that’s the only way to get to open borders, in other words, then I’m not so keen on open borders as I was. Secondly, I value citizenship as a good in itself, and I believe that universality (within a given political unit) is one of its key attributes; I’m unhappy with any solution (to any problem) which turns on instituting different categories of citizenship. (Needless to say, I’m opposed to this even – or especially – in cases where it is actually being done: I believe that people who don’t look for work should not be denied unemployment benefit, that visitors to the UK should not be made to pay for healthcare, that prisoners should not be deprived of the vote, and so on.) Thirdly, I wonder what the introduction of graduated citizenship for non-natives would do to citizenship as an experienced social category: would it accustom people to the idea of multiple citizenships, making it possible for further gradations to be introduced and for full citizenship to be restricted to a smaller group? Lastly, I’m particularly troubled by the thought of living in a country where second-class citizenship is imposed on a recognisable and unpopular minority – or, to put it another way, being ruled by a government which imposes second-class citizenship on such a minority. I wouldn’t like to live under a government like that for precisely the same reason that I wouldn’t want to live under a government that closed the borders: in both cases, the government would be differentially imposing restrictions on people disliked by most of its voters. It seems to me that there’s a certain political tone-deafness about Caplan’s paper when he floats these proposals. Immigration restrictions might be enacted by an anti-immigrant government courting immigrant-hating voters, but the same would surely be true of restrictions on benefits or voting rights for immigrants. Even if they were enacted in the purest spirit of right-libertarianism, they would be received as blows against an unpopular minority – and those who welcomed them would soon grow hungry for more.

Secondly, there’s an odd passage in the section in which Caplan addresses the effects of free immigration on the political sphere. The worry here – more of a worry for right-libertarians than for me, or indeed most of us – is that immigrants might bring a ‘statist’ political culture with them and shift their host country’s political spectrum to the Left. After noting that there isn’t much evidence of this happening (for good or ill), Caplan moves on to the effect of ethnic diversity on social solidarity, as expressed in support for a redistributive state. He cites research to the effect that the relationship between the two is inverse – more diversity, less solidarity – and comments:

Social democrats may find this tension between diversity and solidarity disturbing. But libertarians should rejoice: increasing foreigners’ freedom of movement may indirectly increase natives’ freedom to decide who deserves their charity.

Ahem. We weren’t actually talking about charity as such in fact that’s rather the point. (Sorry, just had to say that.) Anyway, there’s more where that came from:

Immigrants are the ultimate out-group. Even today, Americans publicly complain about “immigrants” in language they would never use for blacks or gays. If the knowledge that foreigners attend “our” public schools and seek treatment in “our” hospitals does not undermine support for government spending on education and health care, nothing will.

OK… what just happened? Right-libertarians should support free immigration, not only despite widespread hatred of immigrants but, in part, because of it? The thinking seems to be that right-libertarians should welcome a proprietary, in-group-based attitude to public services, because the extension of those services to immigrants will undermine that attitude and hence discredit the public services themselves. Pride in public services is all to the good, as long as it comes into conflict with the reality of public provision and generates disillusion; and hatred of immigrants is all to the good, as long as its main effect is to undermine social solidarity. Unrestricted immigration may lead to the development of a society of endemic self-centredness and mistrust (by multiplying the objects of distrust and fear), but this in itself should be welcomed: a cohesive, high-trust society is a society where people tend to support public provision of services.

What Caplan is expressing, or – what’s the word? – adumbrating here is the logic of the Death Spiral. If you start pointing out how public money is being spent on the wrong services (and especially) for the wrong people, that won’t lead to a trimmed and rationalised set of public services which everyone can be happy with – it’ll lead to an endless whittling away of those services, as more and more occasions for outrage are unearthed. What’s interesting about Caplan’s argument is that the Death Spiral is set out quite openly and frankly: the more immigrants are seen to be using public services, the more pressure there will be to reduce those services – and the less tolerance there will be for immigrants using them.

The underlying logic of the Death Spiral is cynical and simple: there is an out-group, there are people who will be satisfied by seeing it get a kicking, and their satisfaction can be exploited – either for political support or to further a larger objective, as in Caplan’s argument. We’re dealing here with what John Rawls called “other-directed preferences”. Rawls argued that a just political order should give equal weight to all citizens’ preferences, but only their “self-directed” preferences: my desire to have the vote, a decent education and opportunities in life should be recognised, but not my desire to deprive you of those things – even if there were a lot of ‘me’s and only a few ‘you’s. I think it’s definitive of populism that it valorises, and orchestrates, other-directed preferences: populism isn’t always socially reactionary, but even the mildest, most herbivorous populism expresses preferences directed at politicians (generally binding and restricting their actions). With Marxism, other-directed preferences aren’t part of the package, the odd revenge fantasy about bankers excepted; in action, Marxism is all about universal needs and generalised empowerment to achieve them. As for right-Libertarianism, Caplan’s unconcern for universal citizenship and his willingness to turn his hand to a Death Spiral argument both make me wonder. Certainly we shouldn’t judge the whole tribe by the Randians, with their grim relish in the come-uppance of the second-handers. Maybe right-Libertarianism isn’t just about dismantling public services, replacing citizenship entitlements with a cash nexus, and be damned to anyone who happens to be dependent on public provision when it all comes down; maybe at its core it’s a genuinely universalisable creed, which can be grounded in my, your, his and her own preference for liberty in just the same way that Marxism can be grounded in our shared preference to eat. But I wonder.

True crime

The government’s consultation on “Transforming Legal Aid” closes today (4th June). I’d urge everyone with any interest in the criminal law to take a few minutes to reply to it, especially if you’ve got some (any) relevant organisational affiliation.

There is also a petition on 38 Degrees, created by Maura McGowan QC:

We are calling on the Ministry of Justice to reconsider its plans to introduce Price Competitive Tendering for criminal legal aid. We believe that people should be entitled to choose a lawyer to represent them based on quality, not just be allocated one on the basis of whoever can do the job for the lowest price.

As the Chairman of the Bar Council, I know that we have a legal system which is respected all over the world. These proposals will damage that beyond repair and hit the diversity of the legal profession hard. Cut price justice is no justice at all.

At the time of writing it has 45,529 signatures. Add yours.

There is a petition on the government’s own epetitions Web site, which currently has 75,469 signatures; if it reaches 100,000 it will be debated in Parliament. It’s short and to the point. It reads:

The MOJ should not proceed with their plans to reduce access to justice by depriving citizens of legal aid or the right to representation by the Solicitor of their choice.

Sign it.

Here’s why.

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. (Correction: the number of firms accredited for each area is pre-determined, but the numbers vary from four up to a maximum of 38 (London West and Central). Fifteen of the proposed 42 areas have been allocated the minimum of four.) 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 for fraud 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. Defence lawyers want what’s in their client’s best interests, but what that means in practice is that they want to aim for – and they want their client to aim for – the best result they can realistically hope to achieve. In many cases, quite irrespective of questions of factual guilt, this may well mean advising a guilty plea: someone who 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 by the client will mean that the lawyer 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 much less time is spent on case preparation, much less scrutiny is given to materials that may hold vital evidence, and 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.

Update 30/5/13: more on this from Francis FitzGibbon in the LRB, drawing out some unpleasant aspects of the proposals which I haven’t focused on (there are plenty to go round). There are many more links here.

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.