Notes on Freedom

Category: criminal justice

The corruption of punishment

There is a degree of corruption in Anglo-Saxon criminal justice which has not been seen for several centuries. Because the use of power is neither governed by law, nor by systematic elite interests, the door is left open for punishment to be driven by personal material interests of officials themselves.

The on-the-spot fine provides a base pecuniary motive to punishment. Some council departments now subsist in large part from their fines income, meaning that an environmental department issuing fines starts to have a private, parasitic interest, apart from the public interest of the local authority. The department becomes a private business with its own circular and self-interested economy: wardens go out to issue fines, to pay for more wardens, to go out and issue more fines. The fine is the way in which they earn their salary; they subsist from their power to punish.

(This is an extract from Officious – Rise of the Busybody State, by Josie Appleton)

Such local authority departments become interested not in the most serious offences but in those which can yield the most fines, which are generally the minor offences which are most common and easiest to catch (the very easiest to catch are the cases where the person does not know they are doing anything wrong). The fine is no longer a necessary form of punishment to encourage lawful behaviour: officials need to fine, and so need the offence, and if there are no offences they need to invent them in order that they can continue to issue fines.

Wardens start to engage in low-life practices, tailing or following people, hiding around corners, chasing or intimidating them. Their relationship to the public is one of overt hostility and economic parasitism. One warden described the situation: ‘We spent our time stalking people who were smoking cigarettes… we were filming them. I have seen colleagues chase behind people to issue tickets, go into shops after people and take them out… They [his employers] started pushing for any sort of ticket.’

This corrupt aspect is even more pronounced when councils employ private companies to fine on a commission basis, as around 46 UK councils currently do. When a council contracts these wardens they are basically calling in the mercenaries against their own residents. Perversely, the local authority often sees the number of fines as a question of ‘performance’, citing an increase in fines as an ‘improvement in performance’. The fine – a tax and drain upon the public – is transposed into a form of public service and a measure of state efficiency.

In the USA open-ended confiscation powers have been used to bring in the budget for police departments or to settle personal scores. Cases abound of people being stopped and in effect robbed by the police, with the officer seizing cash or valuables from a car in lieu of a court case. Paul Craig Roberts called this a new age of ‘robber barons’, bare-faced theft by the authorities which leaves property rights in a tenuous position.

What is significant is the base and erratic quality of this parasitic punishment. There have been previous societies in which elite corruption and rent-seeking were carried out in a systematic manner, such as systems of patronage or local pork-barrel politics. In these cases, payments were based on self-interest but they also regulated and contributed to social order. By contrast, the self-interest of officious punishment is privatised and random, working not to social order but to the anarchy of robber barons or pirates. In failed states power belongs to any man with a gun; in officious states power lies with any person with an official badge that endows the power to fine.

This has been shown by several instances of conmen posing as wardens. They wore fake uniforms and badges, watching the public for minor misdemeanours for which they issued a ‘fine’ and marched them to the cash machine. Councils and the private security company criticised this fraud, but the uncomfortable fact is that the conmen revealed the actual substance of their public service to be nothing more than private profiteering. The conmen’s actions were not substantially different in content or consequences to those of the authorised officers. In both cases, wardens were looking for people to fine in order to earn a salary. The criminal act showed the truth of state activity.

(This is an extract from Officious – Rise of the Busybody State, by Josie Appleton, Zero Books. I discussed this issue last night on BBC’s Panorama)

French ‘state of emergency’: the irrationalities of arbitrary power

The thing that separates a gendarme with a tricolour on his shoulder from a militia member with a gun, is that the gendarme is supposed to represent the law.

The thing that separates a modern state like France from pre-modern or retrograde political authorities is that the French state is supposed to embody rational principles: it acts where necessary to preserve the state of liberty.

Now the French state is responding to a terrorist attack – the embodiement of irrational force – by extending the arbitrary powers of state authorities. As with America and Britain before it, the ‘security’ agenda in response to terrorism amounts to the extension of arbitrary powers as an end in itself.

There appears to be a notion that the more latitude given to police authorities – the more latitude to enact surveillance, to put electronic tags on people, to confine them to residences, to ban events – the safer everyone will be.

President Hollande’s declaration of a ‘state of emergency’ was a performance in reassurance, the gesture of asserting state authority. By extending powers he says: I am in charge, things are under control.

Yet all that has actually happened is that the administrative parts of the state have been unleashed to use their force as they please. For the next three months suspects can be confined to their homes by an administrative order, searches and raids can be carried out without legal authorisation, and local prefects have summary powers to restrict the movement of groups or particular individuals, banning local events or declaring curfews.

‘In another context, I would be the first to condemn such a proceedure’, said the socialist president of parliament’s legal commission. There were some murmurs of dissent but a general view that this was not the time for questioning or for argument. The vote on the enactment of the state of emergency was 551 votes for, 6 against, and one abstention. Such majorities achieved without debate indicate the rubber stamping of administrative edicts not the enacting of laws.

An article on the leftist magazine Rue.89 argued that this amounts to ‘legalisation of arbitrariness’, and noted that ‘state of emergency’ powers were used in the Algerian war to arrest thousands of supporters of Algerian independence and inter them in camps.

The Rue.89 article points out that Hollande’s law allows someone to be confined to their home on the basis of ‘serious reasons to think that their conduct constitutes a threat to security and public order’, a condition which is ‘much vaguer’ that the Algerian war version which targeted ‘activities’ rather than conduct. Which radical political protesters could not be targeted under these powers?

Indeed, a Le Monde investigation of some of the 118 people confined to their homes finds that one man’s fault lay mainly in the fact that he had twice driven a radical Islamic preacher to the airport. The man describes how 12 police officers arrived at his house and said: ‘We have something for you to sign.’ The documents seen by Le Monde included a mix of correct and incorrect facts about the person’s ‘connections’, but were mainly based on the simple assertion that the person represents a risk to national security and is intent on joining jihadist forces in Syria.

‘They are taking people randomly to make examples of them’, said one confined man. Another said ‘They didn’t have anything to write, they charged me for the sake of charging me, to be able to tell people, “look, we’re doing something”.’ The lawyers who accepted these unfavourable cases said that the reasons for confining people to residence were ‘often obscure, or indeed unfounded’, and that the ‘rush to punishment plunges us increasingly in a zone of non-droit where we risk conducting ourselves like our aggressors’.

Now there are parts of France where people live under curfew, or where demonstrations are banned (though some are going ahead in spite of the prohibition). Events that have been cancelled on mayoral order include Lyon’s Festival of Light and Nancy’s festivities of Saint Nicholas.

Yet the French state’s inability to prevent the Paris attacks appears to lie in the failed use of existing powers, rather than for want of new ones. Several newspapers have criticised intelligence agencies’ failure to pick up on movements of the key suspects – many of whom were known Islamic extremists, and not because they once drove an iman to the airport – and indeed authorities were tipped off by an Islamist in August that Abaaoud (the Paris ringleader) had asked him to ‘attack a concert hall’.

The pressures of today are not, in fact, those of the time of the Algerian war. There is no civil war or threat of a coup, and the powers of state are not threatened. Dealing with terrorist action falls within the normal domain of police function. Perhaps the police need different skills, or more resources, but their task remains one of normal police function and not dealing with a crisis of state. Therefore they can perform this task with the normal judicial equipment.

The French Declaration of the Rights of Man and of Citizens provides a ringing statement of the proper function of modern criminal law:

‘The law ought to prohibit only actions hurtful to society. What is not prohibited by the law, should not be hindered…No man should be accused, arrested, or held in confinement, except in cases determined by law… All who promote, solicit…or cause to be executed arbitrary orders, ought to be punished’.

Bien dit!

It is worth remembering that these controls upon state power do not only protect public liberty, but also guide state action towards effective ends. That is, legal protections exist not only to protect the public from arbitrary sanctions, but also to guide law enforcement down rational and effective lines. This applies for the pursuit of terrorists as much as for other areas of public service.

When 12 police officers are employed to deliver unsubstantiated accusations to an innocent person – who then has to report to the police station four times a day, taking their own and officers’ time – this represents the use of state force for a gesture, for the sake of it, which in fact distracts from the apprehension of terrorists or the routing of future attacks.

Why Magna Carta should still be our constitution

The distinctive thing about Magna Carta is that it is a constitution owned by society rather than the state.

That is, the meaning of Magna Carta is not stamped in official parchment and interpreted by the courts, who then say, you have this right or you don’t. Rather, since the seventeenth century Magna Carta has been something for people to pick up and wield to their own purposes, against state authority. In the Civil War a person being arrested by the king’s agents would carry or read aloud from the charter, as if the document in itself had the power to ward off illegitimate authority. Magna Carta provided a point of authority outside the state from which to appeal.

Magna Carta became a modern constitution when the feudal rights and duties described in the text had long since dissolved: when there was no longer scutage, castle guard, reliefs upon the knighting of your eldest son or inheriting an estate. In the thirteenth century, Magna Carta was a precise legal document: the text stated exactly what was owed by the various categories of vassals to their lords. With the dissolving of these feudal relations, the clauses that affirmed the principle of limited power in the application of feudal law took on the broader significance of the protection of the citizen against state authority.

Now, Magna Carta played the role not so much of a legal document as an allegory. The allegory of Magna Carta is quite different to that of other constitutions and accounts of the founding of states, such as a founder-hero giving the people good laws, or a group of citizens sitting down and agreeing to form a state on certain terms. Magna Carta was a deal extracted, with the barons and knights camped as an occupying army and the king escaping every night to sleep in safety elsewhere. State authority was forced to agree terms and limit itself.

The rationality of any claim invoking Magna Carta lay not in legal reasoning, but the social legitimacy of the claim. The question was not whether the text could actually be proven to have x or y reasoning, or whether learned judges or antiquarians found this to be so. The force of a claim invoking Magna Carta lay in the individual’s certainty and assertion of their rights, and in the crowds following behind in support.

This is why Civil War rebel John Lilburne quoted Magna Carta first against the king, then later against parliament; why it could be used by both the suffragettes and colonies demanding independence. The meaning of the text was grounded in the subjectivity of civil society: it was civil society that provided the content for the legal form.

It is for this reason that Magna Carta has now vanished so completely from social and political life. While the constitutions of France or the USA continue to have a juridical-administrative life, and structure fundamental aspects of social life, Magna Carta has vanished without trace. It is no longer quoted or invoked.

Magna Carta has disappeared because civil society has ceased to defend itself against the state. There is no longer that sense of tension between state authorities and citizens; there is no longer a principled separation of domains, or the notion that the use of coercion is an incursion on a prior realm of freedom, and must be subject to very strict conditions.

Our new constitution – the Human Rights Act – has emerged as a reflection of this predicament. This is the antithesis of Magna Carta: in its origins it is not the assertion of society against the state, but the pure legalism of an act of international diplomacy.

The Human Rights Act is a statement of rights which seems to come entirely from without, from elsewhere. Nobody thinks of themselves as having a ‘right to life’ or ‘right to a family life’. The language is odd, foreign, not because it is not British but because it is abstracted from the categories and relations of social life, the points of actual tension between individuals and the state. When you read a human rights judgement it feels as if you have never experienced this thing that is being spoken about.

The fact that rights are now conceived largely in terms of this document shows that the question of the limits on state power is now decided entirely within the terms of the state. The question of the division of the domains of state and society occurs entirely within the formal-legal sphere, as with the negotiation between government departments. Those who wish to challenge a measure must do so on these terms and in this language.

Bringing a case under the Human Rights Act is rather like going to see an oracle: you are not asserting a right but going on bended knee, to ask whether you do indeed have this right. Has one of the articles been infringed? The judgement reads like an occult revelation, as something secret revealed. The QC or judge has gone off to consult the sacred texts and they have found that, yes, rights have been infringed, or no, they have not.

Whether they rule in your favour or not, the action has confirmed your subject status. The ‘rights’ being given in a Human Rights case victory are not something claimed, in one’s own voice, but rather are a revealed gift. The judge may say, yes, this police search was an infringement of your ‘right to privacy’, but this judgement is not a concrete recognition of the private domain of your home; your freedom is given back to you as something else.

With Magna Carta, a legal document became the allegory for civil society. With the Human Rights Act, civil society becomes the allegory of a legal document: society’s own autonomy, its own sphere, is sold back to it in an estranged, foreign form. The question of the legitimate domain of state power is now owned entirely by the state alone.

This is why people’s rights can be violated, without their ‘human rights’ being touched. A mother who had her child forcibly adopted is found to not have had her ‘right to a family life’ infringed; the Scottish government’s appointing of a ‘state parent’ for every child is not, apparently, an infringement of their ‘right to privacy’; buskers’ right to ‘free expression’ is not affected by the requirement that they buy a licence from the council before playing in the streets.

At the same time, human rights are commonly seen as a means to defend the undeserving and dubious: reflected in stories that a criminal claimed to have a ‘human right’ to KFC, or a prisoner to hard-core pornography.

It is notable that the invoking of ‘human rights’ tends to have the opposite effect to that of invoking Magna Carta in the past: rather than endowing the claim with authority, it seems to delegitimise it. If someone mentions human rights people tend to see it as an effete and irrelevant claim. If a person says, ‘an infringement of my human rights’, people groan; they immediately lose sympathy. Those seeking to use the Human Rights Act have to spend a lot of time defending it from negative public perceptions. It is unusual for bills of rights to have to be defended against the public.

In the period ahead, what is needed is not so much a new code, or more legal cases, but a development of the conflicts that are presenting themselves between social life and the state. Every skirmish between civil society and the state – whether it is buskers defending their right to play in public space, or skateboarders their rights to skate in a park – does something to re-establish the autonomy of the realms, and the principle of limited power. If we have a document in our hands then let it be Magna Carta.

Extremism Disruption Orders: state officials become outlaws

For centuries, kings’ coronation oaths included a pledge to serve justice and maintain the laws. Indeed, the English state was unified by law: England formed as a country not through the spread of state administrators, but through the spread of a legal jurisdiction (1). The growth of national courts from the 12th century – overtaking private feudal jurisdictions – was the result of their ability to deliver speedy and fair resolutions to injustices and disputes. England was one country under one law; the authority of the state stood on the fact that it represented the law.

We are now in the unique position where law proper plays a vanishing role in the uses of state power. Officials today seek to escape legal rules specifying the course of action in any particular case; they no longer even claim to be ‘representing the law’.

We see this most clearly with the growth of summary powers to issue ‘orders’. The prime minister recently argued that ‘extremism disruption orders’ were necessary to ‘bring our country together’: for too long, he said, the government had told citizens ‘as long as you obey the law, we will leave you alone’.

Extremism disruption orders would allow for coercion to be exercised outside the application of the law. A person could be prohibited from broadcasting and would have to seek police approval before posting on social media. It would be a crime to violate the order, even if their publishing were entirely anodyne.

This is the latest in a long list of powers to order, including: Football Banning Orders, Dispersal Orders, Control Orders, Anti-Social Behaviour Orders, Community Protection Orders, Public Spaces Protection Orders, Designated Public Place Orders, Eviction Orders, Closure Orders….

In these terms, the state doesn’t specify a rule; it doesn’t lay out a domain of prohibited activity, or specify procedures for the resolution of conflict. Instead, it makes it a crime to disobey the specific order of a specific official. It makes the official’s word in itself the law.

It henceforth becomes a crime to go to a football match (if one has been issued with a football banning order), to stand in a public place (if issued with a dispersal order), to enter one’s own house if that house has been subject to a closure order. The use of coercion loses any systematic basis, but is simply whatever officials find to be expedient in a particular case.

Officials are gaining the power to issue precise on-the-spot directions to individuals. In Newquay the council is issuing buskers with ‘community protection orders’, which can impose certain limits on the busker as the official believes to be necessary. This could be ‘you must not play in the town of Newquay’, or ‘you must not use amplification’, or ‘you must not play for more than an hour in the same spot’. It will then be a crime for that person to violate this specific direction of their musical activity.

Some of these orders go through a court, some do not, but this distinction is not great because the condition being tested is not the relation of this case to a defined body of rules, but rather whether the order meets the conditions under which an order can be made. Normally, a power can be invoked on the basis of authorities’ ‘suspicion’ or ‘belief’ that somebody’s behaviour ‘may lead to’ or ‘may be associated with’ some condition such as ‘harrassment, alarm or distress’; or that the order is necessary ‘in order to prevent’ or ‘reduce the likelihood of’ these things occurring.

The role of the court, then, is not to enforce the law, but to establish the conditions under which officials can make up the law.

This represents a fundamental constitutional shift. AV Dicey argued that the difference between English and French law was not that English law was more lenient, but that it was more predictable: it was defined by the ‘rule of law’ (2). The ‘rule of law’ precluded arbitrary actions on the part of officials. The law specified certain crimes, and anything outside of these specific areas was allowed. If officials were to use their powers in ways unspecified by the law, then it was they who were the criminals: they could be sued for trespass or theft in the ordinary courts.

Indeed, the current disdain for legal principle disrupts the very basis of a modern state. The sociologist Max Weber argued that the ‘calculability of the functioning of the coercive machinery’ is one of the essential conditions for the development of a modern state and market economy (3). Yet now, the rules can be changed overnight: people wake up and there is a new crime.

Suddenly it is a crime to sleep rough on the streets of Hackney, after the council passed a ‘public spaces protection order’ prohibiting this and a host of other activities such as ‘loitering’. This order appears like a revelation: there was no public consultation or prior discussion, and the exact text of the order appears only towards the back of a Hackney council magazine.

Councils including Lincoln have passed public spaces protection orders prohibiting ‘legal highs’; nightclubs and private homes are issued with closure orders on the basis of disorder ‘associated’ with the premises. In other areas, councils have banned the sale of high-strength alcohol or certain brands of alcohol, leading to losses of hundreds of thousands of pounds for small retailers.

Here, somebody has set up a business or purchased stock on the basis of a certain legal state of affairs. Overnight, they find their shop closed because an official has decided that their activities have or might lead to anti-social behaviour in the vicinity.

You might say: they are just legal highs; this person was a nuisance to their neighbours. But this is important. These are legal highs, they are within the domain of permitted activity, so a person sets up a business and invests money. Within weeks, the council declares this activity illegal. Worse, it threatened one shop with a ‘closure order’ before it passed the ban, and issued another shop with a Community Protection Notice before the ban came into force.

The council says that the shop or nightclub is ‘anti-social’ and fostering disorder, but in this case it is the legal high seller who represents the principle of the law, and the council who represents the principle of disorder and arbitrary will.

The enforcement of the law through the prosecution of a criminal returns social life to an axis: it affirms the fundamental principles of the operation of social life. The application of an order disrupts the idea of orderliness: it states that the only rule is the contingent, arbitrary will of officialdom.

These summary orders make it difficult to organise your affairs, because you do not know what you can do and what you cannot. More fundamentally, they make the question of right and wrong entirely contingent and based on arbitrary will.

A raid on a legal high shop or nightclub is not just an infringement against that individual, it is an assault on the whole idea of law in state and society. This is far more disruptive and fostering of chaos than any shop or club ever was.


(1) The French state was unified through administration – through a central state administrator in every region – while the English state was unified much earlier through the development of a common legal system. (The State and the Rule of Law, Blandine Kriegel, Princeton UP, 1995.)

(2) AV Dicey, Introduction to the Study of The Law of the Constitution

(3) Max Weber On Law In Economy and Society, HUP, 1954, p72

Billy Boys: The rampant subjectivity of the criminal law

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.

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