Billy Boys: The rampant subjectivity of the criminal law

by josieappleton

In the week when a man was imprisoned for singing the Rangers’ ‘Billy Boys’ song, we have to ask: who can say anymore what is a crime and what is not?

Since the first criminal code in 14th century BC, the world’s civilised nations have sought to define the nature of different crimes in precise, objective terms. If your horse eats your neighbour’s crop, you shall pay him back twice the quantity of grain. If your neighbour strikes you and injures your head, he shall give you 3 half shekels of silver.

The attempt to be precise led to the meticulous specification in Anglosaxon law of every conceivable kind of personal injury – one eye, both eyes, two spots of blood, a pool of blood – and the payments required for each.

The law should be objective, predictable, universal – this much was inherent in the earliest customary codes, in spite of their lack of legal theory or enforcing machinery.

Yet now – with all our complex legal machinery and coercive institutions – there is a blithe indifference to the definition of crime. No other age has shown so little interest in defining in objective, universal terms, what is a crime, and what is not, and specifying the punishment that should apply in each case.

New crimes are consciously created in order to be enforced in a subjective manner. The new terrorism offences, anti-social behaviour offences, speech crime offences – these are all described as ‘flexible’, as ‘tools’. The concept of ‘anti-social behaviour’ is not a precise one – it does not mean engaging in particular subversive activities, or belonging to particular groups. It is, at base, nothing more than the subjective experience of some form of conflict: the experience of ‘offence’, ‘distress’, ‘annoyance’, that one person’s feeling that another person had a ‘detrimental effect’ on their ‘quality of life’, or made them feel ‘uncomfortable’.

This gives crime an inherently unstable and unpredictable quality. The Welsh Parliament is currently legislating to allow tenants to be evicted if they cause ‘nuisance and annoyance’ to their neighbours or passersby. As a petition against the measure pointed out, what exactly is nuisance and annoyance? The petition gives examples of the kinds of everyday disputes between people, where the tenant could find themselves out on the street.

Increasingly, the content of a crime is nothing more than the subjective experience of the moment of conflict. Oxford’s City Council’s consultation on whether rough sleeping and begging should be banned in the city centre, asked people whether they had been ‘affected’ by this activity. There is no attempt to objectify the experience of having been ‘affected’, to say: what was the act, what kind of harm was it, what was the person’s responsibility for the harm, and so on.

Officials are equally enacting their own subjective perspective, and will seek to ban busking or homeless people if they think they look ‘messy’ or ‘undesirable’. Although they bear special coercive powers in their hands, they do not tend to think of themselves as a special kind of citizen, with a special mode of operation and restraints. Instead, they talk about powers as ‘useful’ and ‘flexible’: what is valued is the degree to which laws can give expression of their subjective perspective.

How then do we measure the degree of offence? Every criminal code had some way of measuring degrees of crime. For earlier codes, it was the literal damage to the body, or the property value of a person or object. Murder would carry different penalties according to the value of the person: this depended on their status and sex, and whether a woman was of childbearing age or pregnant. Modern criminal codes punish willful acts violating the liberty of another. The various categories of offences – GBH, theft, burglary, robbery, manslaughter, murder – is each is an objective kind of violation, involving a particular combination of intent, act and harm.

It is the claim to objectivity which distinguishes the criminal law from everyday conflicts in civil society. The realm of civil society is its own sphere, with its own modes of operation and forms of pressure and argument. Civil society is the sphere of particularity where things are open to debate and not a priori right or wrong, where likes and dislikes can be expressed and discussed. This is quite distinct from the sphere of criminal justice, where certain precise lines are drawn, and special coercive mechanisms employed.

What is occurring now is, in effect, the dissolution of the criminal justice infrastructure into civil society, into the immediacy of perspective of one person versus another. The coercive machinery starts to mediate everyday interactions and disputes between people, and between people and the state.

Any moment of conflict, any negative experience or sentiment, can now be a point for the intervention of the criminal law. Anything one doesn’t like – smoking in playgrounds, parents parking outside schools, buskers, pigeon feeding – is seen as an appropriate object for intervention. The debate about whether something should be criminalised or not depends on how much you dislike it. That is, the debate about the criminal law is not in principle different to the expression of one’s opinion in public debate.

This arbitrary and subjective character is different to past broad-brush laws – sedition, obscenity, and so on – which though on paper may have been broad, were in practice enforced tightly and specifically. A 1938 book by W Ivor Jennings, ‘The Law and the Constitution’, noted that sedition and blasphemy laws were extremely broad, but prosecutions were ‘hardly ever’ taken. Even an entirely arbitrary power such as the power of Lord Chamberlain to censor all stage plays, was enforced in a manner that attempted to be objective. In 1965, Lord Cobbard, the last Lord Chamberlain, said that he tried ‘to assess the norm of educated, adult opinion and if possible to keep just a touch ahead of it…. I have to make a positive effort to keep my own personal tastes, likes and dislikes out of the picture’ (1).

No official today would attempt to discipline themselves in this way; it is ‘likes and dislikes’ which drive the use of coercive powers.

The law is no longer predictable, enforced in the same way for everyone. A person can be locked up, like a lightning strike, where a thousand people who did the same thing would walk free. Your fate depends not on a set of rational, spelt-out principles, but on the vicissitudes of how a particular officer or your neighbours happen to be feeling on a particular day.

So we reach the worrying juncture where no one – not even legal experts – can explain why one thing is a crime and another thing is not, why one person is punished and another not; when people can be punished on little more than somebody’s subjective impulse.