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.)

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Brexit Big Brother is watching: how media moguls control the news

I know the Daily Mail and the Daily Telegraph well, and I don’t care to see them like this.

It would take a heart of stone now not to laugh at an illustration of Theresa May staring defiantly out at Europe from the British coast, next to the headline “Steel of the new Iron Lady”.

Those are, however, the words that adorned the front page of the Daily Mail just five months ago, without even a hint of sarcasm. There has been so much written about the Prime Minister and the strength of her character – not least during the election campaign – and yet that front page now seems toe-curlingly embarrassing.

Reality has a nasty habit of making its presence felt when news is remorselessly selected, day in and day out, to fit preconceived points of view. May and her whole “hard Brexit” agenda – which the public has now demonstrated it feels, at best, only half-heartedly enthusiastic about – has been an obsession of several British newspapers, not least the Daily Mail and the Daily Telegraph.

I know these papers well, having spent the best part of a quarter-century working for them, and I don’t care to see them like this. When I worked there, a degree of independent thought was permitted on both titles. I joined the Telegraph in 2002; at the time, my colleagues spoke with pride of the paper’s tolerance to opposing views. And when I was at the Mail, it happily employed the former Labour MP Roy Hattersley.

Would I be able to run positive stories about, say, my mate Gina Miller – who successfully campaigned for parliamentary scrutiny of the Brexit process – in the Telegraph if I were there today? Or at the Daily Mail? Dream on: it’s two minutes of hate for that “enemy of the people”.

Morale in these newsrooms must be low. I am finding that I have to allow an extra half-hour (and sometimes an extra bottle) for lunches with former colleagues these days, because they always feel the need to explain that they’re not Brexiteers themselves.

Among the Telegraph characters I kept in touch with was Sir David Barclay, who co-owns the paper with his brother, Sir Frederick. Alas, the invitations to tea at the Ritz (and the WhatsApp messages) came to an abrupt halt because of you-know-what.

I don’t think Sir David was a bad man, but he got a Brexit bee in his bonnet. I was conscious that he was close to Paul Dacre, the editor of the Daily Mail, and both had cordial relations with Rupert Murdoch. It became clear that they had all persuaded themselves (and perhaps each other) that Brexit suited their best interests – and they are all stubborn.

It seems to me unutterably sad that they didn’t sound out more of their factory-floor staff on this issue. We journalists have never been the most popular people but, by and large, we all started out wanting to make the world a better place. We certainly didn’t plan to make it worse.

People used to tell me that papers such as the Daily Mail and the Telegraph changed because the country had but, even in the darkest days, I didn’t agree with that premise. We are in the mess we’re in now because of personalities – in newspapers every bit as much as in politics. The wrong people in the wrong jobs, at the wrong time.

Would the Daily Mail have backed Brexit under Dacre’s predecessor David English? It is hard to imagine. He was a committed and outward-looking Europhile who, in the 1970s, campaigned for the country to join the EU.

I can think of many Telegraph editors who would have baulked at urging their readers to vote Leave, not least Bill Deedes. Although he had his Eurosceptic moments, a man as well travelled, compassionate and loyal to successive Conservative prime ministers would never have come out in favour of Brexit.

It says a great deal about the times in which we live that the Daily Mirror is just about the only paper that will print my stuff these days. I had a lot of fun writing an election diary for it called “The Heckler”. Morale is high there precisely because the paper’s journalists are allowed to do what is right by their readers and, just as importantly, to be themselves.

Funnily enough, it reminded me of the Telegraph, back in the good old days. 

This article first appeared in the 22 June 2017 issue of the New Statesman, The zombie PM

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