Notes on Freedom

Tag: courts

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.

Footnotes:

(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

Chelsea fans: The return of the show trial

What punishment should be given to the Chelsea fans who pushed a black man off a Paris train and chanted a racist song?

What is striking is that calls for the ‘strongest possible punishment’ are based less on a weighing of the acts committed, than as a way to show others that ‘such behaviour is abhorrent and has no place in football or society’.

In football as in other areas, criminal punishment is increasingly taking on a didactic function, as a way of ‘sending a message’ that a particular behaviour is ‘unacceptable’. It has become common to treat criminal trial and judgement as a sort of pubic press release about social mores. For example:

  • Upon evicting a man from his home, police announced: ‘We hope that our actions send out a clear message that we will not tolerate any sort of behaviour that has such a negative impact on the quality of people’s lives’.
  • The prosecution of men for homophobic leaflets was heralded as sending ‘out a message that Derbyshire Constabulary will not tolerate any form of hate crime’.
  • The jailing of a man for an antisemitic tweet was welcomed by the communities minister: ‘This ruling sends out  a message to all those who use social media to send out antisemitic, anti-Muslim, homophobic and racist  comments that it is unacceptable’.
  • Scottish police said that football banning orders are imposed to ‘send a message to those who use football as an excuse to create disorder that this anti social behaviour will not be tolerated’.

In a civilised jurisdiction, the only thing that should matter is the objective value of the harm committed, and the degree of personal responsibility for that harm.

Yet the prosecution and punishment of crime today has taken on elements of the show trial. The punishment of a criminal act is no longer seen as an exact weighing of the harm committed to person and property, and the degree of responsibility of the actor. Instead, punishments of all kinds are held to have a didactic or demonstrative value.

In these terms, the judicial process is being used to make an example out of somebody. The person being judged is therefore not being entirely respected: they become an object for the judicial process, a vehicle for the transmission of messages to others. Their body, their liberty, is used for the purposes of public communication.

This is a feature of primitive legal systems, where courts and the rule of law are not sufficiently independent and well-developed, and criminal justice is a tool for the cohering of social authority.

For example, the prosecution and punishment of treason was demonstrative, a form of communication. The performance of hanging, drawing and quartering was not intended as a measured punishment to fit the crime. There was no weighing involved. The king was using the tortured body of the offender as a means of sending a message to others: the offender’s body was being used to perform a didactic function.

It seems that we are well aware that Egypt’s recent mass trials were being used for an ideological purpose, and so are unjust. Yet a not dissimilar logic is being employed in our own system without a blink.

Indeed, overt miscarriages of justice become acceptable. One litter charity welcomed the prosecution of a woman for throwing a straw wrapper out of the car window, though she protested her innocence, on the grounds that it ‘got people talking about the issue’. Whether she did it or not – and if she did, whether her actions merited a £400 fine – were seen as less essential than the opportunity to make a point.

When punishment takes on a didactic function there is no gradation of harm, no increment of misdemeanour which at a certain point becomes sufficiently severe to classify as a criminal offence. Instead, there is ‘zero tolerance’: any manifestation of a particular misdemeanour, whether serious or not, will be punished equally. Therefore, there is a sort of equivalence in councils’ treatment of someone dropping an apple core and someone fly tipping, since both provide the same communication opportunity.

Several people have been fined £900 pounds for dropping a cigarette butt; in every case the council promptly press released the verdict, saying that the prosecution would ‘send a message’ about the council’s ‘zero tolerance’ approach to littering. The question of proportionality – £900 for a cigarette butt – is not entertained. For the authorities, the trial is not really about that individual but about the council’s policy for public space.

The notion of ‘zero tolerance’ was also found in legal systems of the past which punished crimes for didactic reasons. The full-on guts-ripping punishment for treason was used equally on those who merely speculated about alternative heirs to the throne, as well as for those who actually committed regicide. The slightest step in the direction of treason could not be tolerated: there was no gradation between speech and the act of murder. Similarly, the eighteenth century’s bloody criminal code punished every theft with the death penalty, equally for a bread roll as for an armed robbery. The slightest theft, however small, would not be tolerated.

At these points, a central state was attempting to impose order and ideological rules upon an unruly or out of control population; the criminal law was used as a rough tool for social integration and discipline. With the development of public institutions and the stabilisation of the state, the criminal law was no longer required to be an overt agent of socialisation and discipline: the ‘bloody code’ was reformed at the start of the nineteenth century.

In a developed and rational criminal justice system, the didactic role of punishment is fulfilled by the simple enforcement of the law. An individual is judged only for their responsibility for causing harm; they are in the dock for their actions alone, and the punishment is concerned with them. The ‘message’ sent by open and fair justice is not a separate element, laid on top of the trial, but only the trial itself.

The return to making an example of people – and using their punishment to communicate social mores – shows that our criminal justice system is again assuming barbaric and irrational elements. This suggests an underlying institutional weakness and ideological uncertainty: criminal justice is used for the purpose of socialisation when other methods fail.

Whatever its causes, the show trial tendency should be resisted in the strongest possible terms. The individual in the dock is a citizen whose acts should be carefully weighed: they are a person, not the subject for a press release.

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