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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Where are the moderate Tories condemning Zac Goldsmith’s campaign?

Conservative MPs are reluctant to criticise the London mayoral candidate’s dogwhistle rhetoric.

Very few Conservative politicians have criticised Zac Goldsmith’s campaign to be elected London mayor. And, amid repeated accusations of racial profiling, Islamophobic undertones, and patronising London’s Indian communities, there has been plenty to criticise.

Ever since describing his rival, Sadiq Khan, as having “radical politics” at the end of last year, Goldsmith’s campaign has come under fire for attempting to sound a dogwhistle to voters for whom racial politics – and divisions – are a priority.

You may feel it’s naïve of me to expect Tory MPs to join in the criticism. Presumably most Tory MPs want their party’s candidate to win the mayoralty. So it is unlikely that they would condemn his methods.

But I’d argue that, in this case, we can’t excuse dodged questions and studied silence as good clean tribalism. Granted, Conservatives only want to see their party make electoral gains. And that is understandable. But trickier to explain away is how willing all of the party’s MPs – many of whom are as moderate and “cotton-wool Tory” (in the words of one Labour adviser) as we once assumed Goldsmith was – are to ignore the campaign’s nastier side.

Why aren’t the Cameroons (or neo-Cameroons) who wish to further “detoxify” the party speaking out? There are plenty of them. There is more enthusiasm on the Tory benches for David Cameron than is generally assumed. Many of the 2015 intake are grateful to him; those in marginal seats in particular see him as the reason they won last year. And in spite of the grumbling nature of the 2010-ers, a number of them are keener than appears on Cameron. After all, plenty wouldn’t be in parliament without his A-list and open primaries (a time when the party was supposed to be opening up to candidates of different backgrounds, something Goldsmith’s rhetoric could threaten).

And we know it’s not just Labour whining about Goldsmith’s campaign. It makes Tories uncomfortable too. For example, the Conservative Group Leader at Watford Council Binita Mehta, former Conservative candidate Shazia Awan, and Tory peer and former minister Sayeeda Warsi have spoken out.

And it’s not just non-MPs who are riled by Goldsmith’s rhetoric. Behind the scenes, Conservative MPs have been muttering for weeks about feeling uncomfortable about the campaign.

“There has been a sense that this is a bad dogwhistle, and it’s a bit of a smear,” one Tory MP tells me. “I don’t think Sadiq Khan’s a bad man at all – I think his problem is, which happens to all politicians, is some of the platforms in the past and the people he shared them with, and maybe he didn’t know – I mean, the number of times David Cameron or Gordon Brown or Tony Blair were shown at some fundraising thing, or just visiting somewhere, shaking hands with somebody who turns out to be a crook; that’s the nature of mass politics.”

There is also a mixed view among London’s Tory MPs about the tone of Goldsmith’s campaign generally. Some, who were frustrated in the beginning by his “laidback, slightly disengaged” style, are simply pleased that he finally decided to play dirty with the more energetic Khan. Others saw his initial lighter touch as an asset, and lament that he is trying to emulate Boris Johnson by being outrageous – but, unlike the current London mayor, doesn’t have the personality to get away with it.

One Tory MP describes it as a “cold, Lynton Crosby calculation of the dogwhistle variety”, and reveals that, a couple of weeks ago, there was a sense among some that it was “too much” and had “gone too far and is counterproductive”.

But this sense has apparently dissipated. Since Labour’s antisemitism crisis unfolded last week, moderate Conservative MPs feel more comfortable keeping their mouths shut about Goldsmith’s campaign. This is because racism in Labour has been exposed, even if Khan is not involved. Ironic really, considering they were (rightly) so quick to condemn Ken Livingstone’s comments and call on Jeremy Corbyn and Labour MPs to speak out against such sentiments. It’s worth noting that Labour’s moderates have been significantly less reluctant than their Tory counterparts to call out such problems in their own party.

There is also the EU referendum to consider. Tory MPs see division and infighting ahead, and don’t want to war more than is necessary. One source close to a Tory MP tells me: “[Goldsmith’s campaign] is uncomfortable for all of us – it’s not even considered a Conservative campaign, it’s considered a Zac Goldsmith campaign. But [we can’t complain because] we have to concentrate on Europe.”

So it makes sense politically, in the short term, for Tory moderates to keep quiet. But I expect they know that they have shirked a moral duty to call out such nasty campaign methods. Their calls for Labour’s response to antisemitism, and David Cameron’s outrage about Jeremy Corbyn’s “friends” in Hamas and Hezbollah, are simply hollow attack lines if they can’t hold their own party to higher standards.

Anoosh Chakelian is deputy web editor at the New Statesman.