Political violence and unlawful behaviour

Is criminal activity to promote a good cause acceptable?

Recent tweets of my New Statesman colleague Laurie Penny have attracted considerable attention. In particular, her apparent suggestion that what would normally be "criminal damage" is not actually violent and is permissible in the context of certain protests has been widely discussed, including this analysis by CharonQC, the doyen of English legal blogging.

Of all bloggers, Laurie Penny is able to speak up for herself, and I do not propose to engage here with the details of that debate. However, there is a wider issue which warrants attention, and it is an issue on which every thoughtful and liberal person should have a view.

When is a criminal act permissible on political grounds? By criminal acts, I do not mean the simple and principled non-compliance which can be labelled "civil disobedience". I mean instead positive actions which breach criminal law, such as offences against the person or against property. It is probably clear what sort of offences go beyond simple civil disobedience, though there may be grey areas at the margins.

Many individuals seeking or exercising power would like to be excused from criminal liability on political grounds, from the terrorist and the dishonest politician, to the troublemaker throwing paint at Topshop and the racist thug. It would seem that for each of these individuals, the criminal law is just for other people. Their self-serving sense of legitimacy checks and overrides the legitimacy of the state.

However, a political excuse cannot be enough to exclude criminal activity. Profession of a cause, like ignorance of the law, cannot always be a valid excuse. If it were, then everyone subject to the criminal law would invoke it. There must be a sensible limit to which politics can be used as a defence to a criminal charge.

On the other hand, very few would maintain that there can never be, in any circumstance whatsoever, a good political reason to commit what would otherwise be a criminal act. There may be differing views on when such an action would be justified, and many would only concede that it could happen only under imaginary and extremely illiberal laws, rather than those in force at the current time. For example, helping a member of a persecuted group to escape capture and execution could feasibly be a positive criminal act, and one would hope that many would selflessly commit the crime to assist a stranger.

There may be no perfect theoretical answer to this problem. In practice, the decisions of those in the criminal justice system, from the arresting officer to the sitting jury, should be informed by common sense and proportion. Politics may not be a defence, but there should always be a public interest in pursuing a prosecution. At the extreme, and with serious offences, it should always be open to a jury to find a defendant not guilty, regardless of the dismay and frustration of the coercive powers of the State.

Such a practical approach is haphazard. It certainly does not appeal to the tidy-minded. It offers no satisfying conceptual basis to those who want certain criminal acts to not have legal consequences. But what is the alternative? Should political commitment ever be defence in criminal law? And if so, how would it actually work?

 

David Allen Green is legal correspondent of the New Statesman and a practising media lawyer.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

Daily Mail
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Who "speaks for England" - and for that matter, what is "England"?

The Hollywood producer Sam Gold­wyn once demanded, “Let’s have some new clichés.” The Daily Mail, however, is always happiest with the old ones.

The Hollywood producer Sam Gold­wyn once demanded, “Let’s have some new clichés.” The Daily Mail, however, is always happiest with the old ones. It trotted out Leo Amery’s House of Commons call from September 1939, “Speak for England”, for the headline on a deranged leader that filled a picture-free front page on David Cameron’s “deal” to keep Britain in the EU.

Demands that somebody or other speak for England have followed thick and fast ever since Amery addressed his call to Labour’s Arthur Greenwood when Neville Chamberlain was still dithering over war with Hitler. Tory MPs shouted, “Speak for England!” when Michael Foot, the then Labour leader, rose in the Commons in 1982 after Argentina’s invasion of the Falklands. The Mail columnist Andrew Alexander called on Clare Short to “speak for England” over the Iraq War in 2003. “Can [Ed] Miliband speak for England?” Anthony Barnett asked in this very magazine in 2013. (Judging by the 2015 election result, one would say not.) “I speak for England,” claimed John Redwood last year. “Labour must speak for England,” countered Frank Field soon afterwards.

The Mail’s invocation of Amery was misconceived for two reasons. First, Amery wanted us to wage war in Europe in support of Hitler’s victims in Poland and elsewhere and in alliance with France, not to isolate ourselves from the continent. Second, “speak for England” in recent years has been used in support of “English votes for English laws”, following proposals for further devolution to Scotland. As the Mail was among the most adamant in demanding that Scots keep their noses out of English affairs, it’s a bit rich of it now to state “of course, by ‘England’. . . we mean the whole of the United Kingdom”.

 

EU immemorial

The Mail is also wrong in arguing that “we are at a crossroads in our island history”. The suggestion that the choice is between “submitting to a statist, unelected bureaucracy in Brussels” and reclaiming our ancient island liberties is pure nonsense. In the long run, withdrawing from the EU will make little difference. Levels of immigration will be determined, as they always have been, mainly by employers’ demands for labour and the difficulties of policing the borders of a country that has become a leading international transport hub. The terms on which we continue to trade with EU members will be determined largely by unelected bureaucrats in Brussels after discussions with unelected bureaucrats in London.

The British are bored by the EU and the interminable Westminster arguments. If voters support Brexit, it will probably be because they then expect to hear no more on the subject. They will be sadly mistaken. The withdrawal negotiations will take years, with the Farages and Duncan Smiths still foaming at the mouth, Cameron still claiming phoney victories and Angela Merkel, François Hollande and the dreaded Jean-Claude Juncker playing a bigger part in our lives than ever.

 

An empty cabinet

Meanwhile, one wonders what has become of Jeremy Corbyn or, indeed, the rest of the shadow cabinet. The Mail’s “speak for England” leader excoriated him for not mentioning “the Number One subject of the hour” at PM’s Questions but instead asking about a shortage of therapeutic radiographers in the NHS. In fact, the NHS’s problems – almost wholly caused by Tory “reforms” and spending cuts – would concern more people than does our future in the EU. But radiographers are hardly headline news, and Corbyn and his team seem unable to get anything into the nation’s “any other business”, never mind to the top of its agenda.

Public services deteriorate by the day, George Osborne’s fiscal plans look increasingly awry, and attempts to wring tax receipts out of big corporations appear hopelessly inadequate. Yet since Christmas I have hardly seen a shadow minister featured in the papers or spotted one on TV, except to say something about Trident, another subject that most voters don’t care about.

 

Incurable prose

According to the Guardian’s admirable but (let’s be honest) rather tedious series celeb­rating the NHS, a US health-care firm has advised investors that “privatisation of the UK marketplace . . . should create organic and de novo opportunities”. I have no idea what this means, though it sounds ominous. But I am quite certain I don’t want my local hospital or GP practice run by people who write prose like that.

 

Fashionable Foxes

My home-town football team, Leicester City, are normally so unfashionable that they’re not even fashionable in Leicester, where the smart set mostly watch the rugby union team Leicester Tigers. Even when they installed themselves near the top of the Premier League before Christmas, newspapers scarcely noticed them.

Now, with the Foxes five points clear at the top and 7-4 favourites for their first title, that mistake is corrected and the sports pages are running out of superlatives, a comparison with Barcelona being the most improbable. Even I, not a football enthusiast, have watched a few matches. If more football were played as Leicester play it – moving at speed towards their opponents’ goal rather than aimlessly weaving pretty patterns in midfield – I would watch the game more.

Nevertheless, I recall 1963, when Leicester headed the old First Division with five games to play. They picked up only one more point and finished fourth, nine points adrift of the league winners, Everton.

 

Gum unstuck

No, I don’t chew toothpaste to stop me smoking, as the last week’s column strangely suggested. I chew Nicorette gum, a reference written at some stage but somehow lost (probably by me) before it reached print.

Editor: The chief sub apologises for this mistake, which was hers

Peter Wilby was editor of the Independent on Sunday from 1995 to 1996 and of the New Statesman from 1998 to 2005. He writes the weekly First Thoughts column for the NS.

This article first appeared in the 11 February 2016 issue of the New Statesman, The legacy of Europe's worst battle