Political violence and unlawful behaviour
Is criminal activity to promote a good cause acceptable?
By David Allen Green Published 29 March 2011 13:30
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.
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71 comments
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you can all yawn......
violence is absolutely essential to furthering my political ends
..............................................in order to right a wrong it is necessary to exceeed a proper limit
(with a brick)
now
For many people decades now we have had to put up with media people like you telling us how we should relate to the positive aspects of dog turds on our pavement!
Liberals still fetishising the law, I see. Good, good, nice to know there hasn't been any sort of radical change while my back was turned...
thinkov
30 March 2011 at 15:23
no but i've thought of a smack in the mouth cheaper etc feel better already.
Why don't you have a wank instead, you seem to have a great deal of frustration.
@Dillon: Thanks for that- I was needing a good laugh!
I think we need to keep the idea that acts of property damage are violent. Obviously They are violent in a different way than police violence, which is always violence done to a living person - that this is ignored and violence done to inanimate objects is news says a lot about our values.... But I digress... the violence against property conducted by protestors is very specific, it is directed at companies and institutions (the Treasury for example) who are committing economic and political violence against people. Whether in the third world, in the case of FTSE one hundred companies; in war zones; in the case of our government and attendant arms companies (perhaps arms companies and their attendant governments, it's hard to tell) ;or internally through financial privation; our government again, the damage to property is a symbolic act against the far greater damage being done to property and people by corporations and institutions above the law. The protestors show something much more powerful and 'liberal' than towing the line: they show the actual playing out of individual soverignty. The principle is clear: We cannot believe in the rule of law if it allows so much criminality to occur within the State and the business world. It ceases to appear as the source of justice and becomes instead the means of oppression.
ET; Maybe he was a policeman undercover collecting evidence against people who break the law. Was it provoking the violence .. I doubt it. There's not need for a undercover policeman to instigate violence as there are obviously plenty of others who do it : he's just collecting evidence ..and why shouldn't he? There's no need for the violence and damage .. there's a ballot box.
This is a ridiculous question because you do not seem to know if you are asking whether or not political violence is permissible on an ethical or on moral a basis. If ethical, whose ethics are we talking about? Surely this is about a clash of ethics: of one considered corrupt and the other considered rigteous. In this context, it does not matter to the insurgent whether or not their behaviour is deemed criminal since they no longer recognise the authority of the state. In this sense, your question is pointles: yes, of course their behaviour is illegal, but do you think the protestor really gives a shit?
But is it "permissible" (to which I infer that you mean 'legitimate')? Quite possibly. If the truth of the matter is that the state is no longer able to operate within the ethics that it proclaims then insurrection is perfectly legitimate. Today, it's not just the left that celebrates Paris 1968 and Italy 1977 as they are widely accepted as being events that proclaimed they universal freedom of humanity in the 20th century.
John Locke:
"the purpose of the government is to protect natural rights (liberty and the right to life, for example), but when the government breaks the terms of its contract its legitimacy evaporates and the people have the right of rebellion."
We have now reached such a point.
This is indeed an interesting discus. I think Mr. Ben-Gurion the leader of the Zionist terrorist group that bombed the King David Hotel in the late 60s or so was working on this presumption as he was latter rewarded with the position of Israeli prime minister and was latter awarded a Nobel peace prize. Whatever political violence you can undertake to get the state power, do it because you will be recognized as soon as you get there.
thinkov
30 March 2011 at 01:04. Yes, i'm yawning!!!
It's about winning the political and economic debate and the left are losing, so they smash windows. This is because many on the political-left are still in denial. No matter how often the figure are put before them, they simply aren't get their heads around the fact the cupboard is empty. The banking crisis was the catalyst. We either return to sound economic management or we go bankrupt.
@Mortmer Bloomington; Whatever makes you think we have reached 'such a point'? Was there not an election last year?
The problem with those that partake in criminal activity at demonstrations is the context not necessarily the act.
Some of the violence at the first student protest brought attention to the cause and created massive media interest that would not have been there.
The violence on Saturday actually took the media's attention away from the cause and gave the moral high ground back to the government.
You cannot legislate for this. http://bit.ly/fUDZuq
I see the police only managed to arrest and charge 11 people for 'violent' offences last Saturday. I find that number surprisingly low.
Makes me wonder who the 'rioters' were and why they were not arrested.
so luddite
Japans infrastructure gets devastated by a natural catastrophe and a man made one
it's too skint to rebuild
should we leave it alone a la haiti?
The cupboard is not fucking bare some twat has invented a imaginary deficit from overpriced financial bullshit
get everything nationalised and declare all national debt illegal
luddite you're insufferable crap really angers me
Luddite and thinkov: Oh come we can all be friends. Stop this petty bickering and shake hands.
Why don't you both apologise to one another and then resume hostilities? Start with a clean slate and then spoil it.
we're discussing violence luddite and how right it is to twat
you are an ass
It is all relative. If protests don't become mechanical, protestors will eventually be arrested for just breathing, or some other state excuse.
Chile and Argentina years ago come to mind.
links to above comment,
Chile: http://en.wikipedia.org/wiki/Caravan_of_Death
Argentina: http://en.wikipedia.org/wiki/Dirty_War
Now I am not saying state oppression will get as bad as that in this country.....
Good site here to go with this thread - The Men They Couldn't Hang,
http://www.tmtch.net
http://www.seherr.de/tmtch/downloads/ironmasters.mp3
http://www.youtube.com/watch?v=OJkWNcbmKDE
It'll all come out in the wash.
notice the little joke youtubb is having today, YouTube, est. 1911...
Very droll.
thinkov, The Japanese will bounce back it's the nature of the Japanese people, also there's nothing imaginary about New Labour's appalling deficit, and as for your 'anger' problem, have you thought about therapy.
It couldn't possibly work in criminal law.
How would inciting racial or religious hatred fare in the justice system if someone could use a political cause and commitment as a defence? What about terrorist acts, they all cite political commitment as their reasons for being and action, are we to excuse every dissident Northern Ireland terrorist or homegrown member of Al Qaeda too? On the other end of the scale, the MPs jailed for expenses could easily find a get out of jail card should criminality be excused where political commitment is concerned.
Law provides a place for mitigating circumstances to be put forward in a court. The law also allows freedom to follow a political ideology but it does not have and should never have the ad endum 'criminal behaviour is excused where political cause or commitment can be proven'.
When, slowly and surely, every avenue of protest is becoming "illegal", this question is more important than ever.
My feeling is, commit a crime for a good cause if your conscience allows you to. Fine. Be prepared however to suffer the consequences. This goes for simple civil disobedience as well. It is a sacrifice. It can bring about changes of attitude. We should be able to look back on civil disobediences of the past and their punishments and realize that a more liberal system of justice is the result. The punishment is important. It puts the action into context.
Isn't whether to prosecute or not always subject to the "public interest" test anyway? In the case of the Fortnum and Masons "sit-in" then I suspect the test should be over whether significant financial damage resulted. Personally I've always been on the side of those who are engaged in lawful activity over those who would use coercive methods to attempt to stop it.
Of course where the democratic system is highly deficient, as it was in the case of the Suffragettes or the 1960s civil rights movement, then we are in a fundamentally different game to when a group of activists feel aggrieved that the democratic process has not produced the result they would wish.
If we are talking about wrecking shop fronts and places of business for the sake of it, then yes, prosecutions are necessary and in the public interest.
But lets not forget that we don't need to look as far away as Chile or Argentina (as referenced above by EhtchTee) to find examples of agents of the state attacking and terrorising it citizens engaged in peaceful protest.
1972 Derry, Northern Ireland... the first battalion of the Parachute Regiment of the British Army shot twenty-six unarmed people, 14 died - 7 of whom were teenagers - Five of those wounded were shot in the back.
Over one hundred rounds were fired directly into the fleeing crowds by troops, in addition, defenseless people who lay wounded on the ground were shot by soldiers who stood over them.
They were marching to protest against the practise of 'Internment without Trial' in Northern Ireland.
They were killed and then labelled terrorists, a lie that lasted until 2010, when the Saville enquiry shed light on what most knew all along. David Cameron then gave an unreserved apology in the house of commons.
http://en.wikipedia.org/wiki/Bloody_Sunday_(1972)
This is what happens when those in power deem the very act of standing up and protesting illegal and authorise the use of force against its own people.
The legal system is bound to defend the status quo of economic and political hierachy. The democratic process, although ment to allow change to happen is part of this status quo. Any attempt to change it will therefore automatically be perceived as criminal. Only if it effectively and irreversbly changes something, this perception will be revisited. As in: Nelson Mandela (a violent revolutionary in his days) was put of the terrorist list, when he was president and apartheid was made history.
A very thought provoking post that can inspire important debate.
I think the main point hinges around laws with the potential to severely restrict civil liberties. If the law is used in this way (e.g. restriction of the right to demonstrate etc)then it may be necessary to break the law in order to oppose it. The civil disobedience over the Poll Tax is possibly the best example. I am not referring to the riots but the "can't pay, won't pay" protests.
That was an attempt to clog up the courts and make the Poll Tax unworkable. Would a defence of politics have helped? It may have avoided some being criminalised for their protest.
However, there are many examples where the defence could be abused. It is a debate that arises from the fact that life isn't simply black and white.
Do we have a legal system flexible enough to accomodate that fact?
Is anyone claiming exemption from the law though? If you deliberately break a law to promote a political end you do so in full knowledge and expectation that you are liable to be punished for it.
It's a moral issue. Yes the law was broken, but for a morally acceptable reason. A morally defensible action which is punished by law, makes the law look immoral and appear unjust.
In that way it undermines the reason for upholding the law.
But you have to accept that the action is illegal and be prepared to accept the punishment for it, rather than expect to be excused for this to work.
I have always assumed that those who break the law as part of a political protest do so deliberately- that they are making the statement that they feel so strongly about their cause that they are willing to put themselves on the wrong side of the law and take the consequences. Those consequences therefore effectively become part of the protest. So the question a protester should ask him or herself is not whether their political cause makes their actions legally acceptable but whether it makes them morally acceptable, despite their illegality.
@ David Allen Green
Last night, I watched 'See You In Court' and released how unfair Libel laws are to the middle class and the poor. I alway remember my fantastic Tort Lectuer saying; "If you are going to sue someone under English Libel laws, you will have to pay out of your own pocket and be prepared to make a loss."
Political violence and unlawful behaviour is beyond the pale!!! This is why I'm for Punch and Judy!
Saturday was a smokescreen for Looters looting Retailers and Pubs. Ed Miliband's Labour Party and his Unions need to say sorry!!!!
The tradition of breaking the "law" as a matter of protest is a long one - where accepting the consequences of the acts taken to highlight the issue. For example the direct actions of suffragettes. So the premise of the article that criminal acts should have no mitigation through the idea of being "political" is valid.
However, where the article fails in scope is the issue of the state criminalising protesters - as reported by Penny Red in Trafalgar Square and somewhat more prosaically the 100 odd totally peaceful protesters in Fortnum and Mason being charged.
So rather than an internal navel gazing on illegal acts and the sanctity of the temple of the law - it is the highly illiberal application of the law by the state (or at minimum an increasingly out of control Met Police - who decide that protesters must be charged - but don't touch those nice NoW journalists) that is the real issue.
By using Nelson Mandela you are demonstrating the false analogy that many have used in a UK context to justify their own actions. South Africa was simply not a democracy in any reasonable sense during the Apartheid era in that the state very explicitly denied equal rights. There simply was not democratic mechanism available.
I would also fundamentally disagree with your theory that a democratic system is incapable of reforming itself as it is locked into the status quo. There have been many changes to the UK constitution since universal suffrage, not least of which is the relationship with the EU. We have also had devolution of powers in Scotland, Wales and Northern Ireland. I'm not aware that the promoters of any of those changes were perceived as criminal unless they engaged in criminal acts (as some did with bombing, shootings and arson).
Other countries have more formal constitutional systems and almost all have some means of amending them.
To argue that democracies can only be reformed through violent acts is an excuse made by the revolutionaries for achieving through violence what they can't through reason.
after all the furoe & dust has settled regarding protests.FREEDOM OF SPEECH is what democracy is built on.DEPENDANT ON WHAT SUBJECT A PROTEST IS ABOUT,IS DEPENDENT ON THE INDIVIDUALS CONSCIENECE & STANCE.ask yourselves was it correct in poll tax riots,miners strikes.ONE WAS WON THE OTHER LOST.i rest my case
I remember that Martin Luther King told his followers that black people had the US Constitution, and Nelson Mandela reminded his followers that blacks in South Africa had no such protection. King, as we know, was shot dead, while Mandela lived to win an election.
Perhaps, as well as asking whether unlawful behaviour is justified, we should ask how we can best use the freedoms that the law has already granted us.
For a few months now, Johann Hari has been reporting on UK Uncut, saying "this is protest - it works!" (David Allen Green has blogged about UK Uncut elsewhere on this site.) When we discuss the events of last weekend, we would do well to talk about which tactics work, as well as which ones are legal.
I think Buckskins has said it all. So far as I can see the biggest lawbreakers at large public protests (reckless violence, unlawful imprisonment, ...) are the police.
Violence, the threat of violence and War are the main movers of change and progress in society. The ballot box is a sham by comparison.
Does anyone truly believe that our democracy and welfare state were created because the ruling classes thought they were a good idea.
War and violence have been causes for good in Britain from the Civil War to the Chartists, the Suffragettes and threat of revolution in the 1920's,30's and 50's.
Anyone who proclaims that peaceful demonstration and parliament brings lasting change is in a dream world.
"When is a criminal act permissible on political grounds?" Never, unless the vote is taken away.
thinkov. Sorry shouldn't have said that, you probably havn't started your erections yet.
Paul Hillyard New Labour was the ruling-class for 13 year's, they ran the country they made the laws. The only ruling aristocracy we have these days, is the new aristocracy of the public sector.
Another analogy would be these riots down my part of the way, where farmers were screwed for money from government sponsored road toll companies at their gates, when taking livestock and goods to market, or carts of lime for their fields, in the mid nineteenth century. The only solution they saw after long verbal protesting was to smash them down in a riot. The state then listened.
http://en.wikipedia.org/wiki/Rebecca_Riots
No mainstream political party in Britain has a completely non-violent history, apart from possibly the Greens. the Tories nearly provoked a Civil War in 1914, whilst their ancestors lost two in the 1640s.
http://clemthegem.wordpress.com/
According to the Home Secretary yesterday, it will soon be illegal to wear a balaclava. Barking mad! Or will it be dependent on the outside temperature, say above 5 degC and your nicked?
As for agent privocateur, this is a crap defense. It basically says you have no free will or ability to distinguish between right and wrong to think for yourself. No court on earth would.entertain that as a defense for the thugs on Saturday.
The same thugs one of the UK uncut leadership seems to be moving towards completely destroying any claims they aren’t acting as UK uncut.
See – http://thethirdestate.net/2011/03/a-message-to-critical-uk-uncut-activists/
no but i've thought of a smack in the mouth
cheaper etc
feel better already
Police are people doing a tough job, caught in the middle between rightly disgruntled people and a power elite that is running society into the ground.
It was sad to see police officers being attacked and having paint and other missiles thrown at them, these people have families, and loved ones, but when you have a parliament that seems unresponsive indeed, working against the interests of the people, then issues arise.
I think peaceful protest the most effective, if enough people get together as shown in Egypt there is next to nothing the government authority can do, people power has enormous potential. Violence will be used as justification to bring in more draconian legislation and is thus highly counterproductive.
The answer must be "Yes, if it is in the public interest". Just as it is acceptable for our government to resort to violence in pursuit of the public or national interest.
Each state sets about establishing it's own laws and rules. These are "The Law" within that particular context unless of course that state acknowledges a higher authority such as say in Europe. Over and above that we have international law which is more politically driven than most law making.
So two points from me:-
1 Does anyone else find irony in the fact that the very government that is tightening the law here is assisting "law breaking" rebels in Libya?
2 I think the key issue is mitigation. If I help a close friend or loved one in pain to end their life, at their request, I am without doubt breaking a law and I would not want it otherwise. What I would want would be the chance for the charity and love that underpinned my act to mitigate the outcome and sentence I received.
For me it comes down to whether or not this is a democracy - if your perception is that yes, this is a democracy in a meaningful sense of the word, then it would seem that following the laws handed down by representatives of the people should be followed.
But for me this isn't a democracy - not even close - and that makes the situation more fluid. This is a flawed democracy, even if you disregard that this coalition government was unannounced (and so, no-one voted for it), there is a house of lord, a monarchy and other flawed parts of the democratic process.
And the First Past The Post system at the heart of the democratic process makes it near impossible to chose between more than two parties. There are more parties, but with all-or-nothing politics, it's almost impossible for smaller parties to grow or meaningfully affect the large parties.
So we're left with a de facto two-party state which forces us to choose between politicians and parties that betray us every time, hoping desperately that they will treat us slightly better this time. That is why we are so disillusioned by politics - we only get to choose between representatives from a narrow part of the political spectrum. PR would make things different, though it's nowhere to be seen on the horizon. This, for me, means that the laws of the state - which are skewered towards upholding the status quo - should not necessarily be followed.