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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Green party calls on Labour, Lib Dems, and Plaid Cymru to form a "progressive alliance" next election

Will Jeremy Corbyn, Tim Farron and Leanne Wood agree to meet for talks?

The Green party leadership have called upon Labour, the Lib Dems and Plaid Cymru to work together to challenge the Tories at the next election. In an open letter, the Green leaders stress the exceptional circumstances occassioned by the vote to leave the EU:

“In a spirit of openness and transparency, we are writing to you as leaders of parties which oppose Brexit, to invite you to a cross-party meeting to explore how we best rise to the challenge posed by last week’s vote to Leave the EU.  

“We have a UK Government in chaos, an economy facing a crisis and people up and down the country facing serious hardship. There is an urgent need to make a stand against any austerity and the slashing of environmental legislation, human and workers’ rights, that may come with Brexit. 

“With the growing likelihood of an early General Election, the importance of progressive parties working together to prevent the formation of a Tory-UKIP-DUP government that would seek to enact an ultra-right Brexit scenario is ever more pressing.

Caroline Lucas shot down a rumour that she would be joining Corbyn’s shadow cabinet. But her party has decided to call for a progressive alliance and an early general election. 

Key to such cross-party talks would be the demand for electoral reform, as the leader Natalie Bennett added in a statement:

“Central to such a progressive alliance would be a commitment to proportional elections for the House of Commons and an elected second chamber.”

The call for a more plural politics follows a post-referendum surge in Green party membership, with up to 50 people joining per hour.

Here’s the letter in full:

Open letter to: Jeremy Corbyn, Tim Farron, Leanne Wood on behalf of Green Party of England and Wales,

In a spirit of openness and transparency, we are writing to you as Leaders of parties which oppose Brexit, to invite you to a cross-party meeting to explore how we best rise to the challenge posed by last week’s vote to Leave the EU.  

Britain is in crisis and people are scared about the future. Never have we had a greater need for calm leadership to be shown by politicians.  

We have a UK Government in chaos, an economy facing a crisis and people up and down the country facing serious hardship. There is an urgent need to make a stand against any austerity and the slashing of environmental legislation, human and workers’ rights, that may come with Brexit. 

With the growing likelihood of an early General Election, the importance of progressive parties working together to prevent the formation of a Tory-UKIP-DUP government that would seek to enact an ultra-right Brexit scenario is ever more pressing.

This is an opportunity to recognise that a more plural politics is in both the Left’s electoral and political interests. This crisis exposes the absurdity of our first past the post electoral system.  Just 24 per cent of those eligible to vote elected the government that called the referendum. The only fair way to proceed is to have a proportional voting system where people can back the politicians who they believe in, rather than taking a gamble and not knowing who they will end up with.  

The idea of a progressive alliance has been floated for several years, and proposals have once again been put forward in the context of the current crisis.  We believe that the time has come to urgently consider such ideas together in the context of a Westminster Government. We recognise the very different political situation in Scotland, given the strongly pro-EU majority there. We hope that co-operation between progressive parties their can ensure that this mandate is respected, and we will support them to keep all options open.

We look forward to your response,

Natalie Bennett, Leader of The Green Party of England and Wales

Steven Agnew MLA, Leader of the Green Party of Northern Ireland

Alice Hooker-Stroud, Leader of Wales Green Party

Caroline Lucas, MP for Brighton Pavilion

India Bourke is the New Statesman's editorial assistant.