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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What it’s like to fall victim to the Mail Online’s aggregation machine

I recently travelled to Iraq at my own expense to write a piece about war graves. Within five hours of the story's publication by the Times, huge chunks of it appeared on Mail Online – under someone else's byline.

I recently returned from a trip to Iraq, and wrote an article for the Times on the desecration of Commonwealth war cemeteries in the southern cities of Amara and Basra. It appeared in Monday’s paper, and began:

“‘Their name liveth for evermore’, the engraving reads, but the words ring hollow. The stone on which they appear lies shattered in a foreign field that should forever be England, but patently is anything but.”

By 6am, less than five hours after the Times put it online, a remarkably similar story had appeared on Mail Online, the world’s biggest and most successful English-language website with 200 million unique visitors a month.

It began: “Despite being etched with the immortal line: ‘Their name liveth for evermore’, the truth could not be further from the sentiment for the memorials in the Commonwealth War Cemetery in Amara.”

The article ran under the byline of someone called Euan McLelland, who describes himself on his personal website as a “driven, proactive and reliable multi-media reporter”. Alas, he was not driven or proactive enough to visit Iraq himself. His story was lifted straight from mine – every fact, every quote, every observation, the only significant difference being the introduction of a few errors and some lyrical flights of fancy. McLelland’s journalistic research extended to discovering the name of a Victoria Cross winner buried in one of the cemeteries – then getting it wrong.

Within the trade, lifting quotes and other material without proper acknowledgement is called plagiarism. In the wider world it is called theft. As a freelance, I had financed my trip to Iraq (though I should eventually recoup my expenses of nearly £1,000). I had arranged a guide and transport. I had expended considerable time and energy on the travel and research, and had taken the risk of visiting a notoriously unstable country. Yet McLelland had seen fit not only to filch my work but put his name on it. In doing so, he also precluded the possibility of me selling the story to any other publication.

I’m being unfair, of course. McLelland is merely a lackey. His job is to repackage and regurgitate. He has no time to do what proper journalists do – investigate, find things out, speak to real people, check facts. As the astute media blog SubScribe pointed out, on the same day that he “exposed” the state of Iraq’s cemeteries McLelland also wrote stories about the junior doctors’ strike, British special forces fighting Isis in Iraq, a policeman’s killer enjoying supervised outings from prison, methods of teaching children to read, the development of odourless garlic, a book by Lee Rigby’s mother serialised in the rival Mirror, and Michael Gove’s warning of an immigration free-for-all if Britain brexits. That’s some workload.

Last year James King published a damning insider’s account of working at Mail Online for the website Gawker. “I saw basic journalism standards and ethics casually and routinely ignored. I saw other publications’ work lifted wholesale. I watched editors...publish information they knew to be inaccurate,” he wrote. “The Mail’s editorial model depends on little more than dishonesty, theft of copyrighted material, and sensationalism so absurd that it crosses into fabrication.”

Mail Online strenuously denied the charges, but there is plenty of evidence to support them. In 2014, for example, it was famously forced to apologise to George Clooney for publishing what the actor described as a bogus, baseless and “premeditated lie” about his future mother-in-law opposing his marriage to Amal Alamuddin.

That same year it had to pay a “sizeable amount” to a freelance journalist named Jonathan Krohn for stealing his exclusive account in the Sunday Telegraph of being besieged with the Yazidis on northern Iraq’s Mount Sinjar by Islamic State fighters. It had to compensate another freelance, Ali Kefford, for ripping off her exclusive interview for the Mirror with Sarah West, the first female commander of a Navy warship.

Incensed by the theft of my own story, I emailed Martin Clarke, publisher of Mail Online, attaching an invoice for several hundred pounds. I heard nothing, so emailed McLelland to ask if he intended to pay me for using my work. Again I heard nothing, so I posted both emails on Facebook and Twitter.

I was astonished by the support I received, especially from my fellow journalists, some of them household names, including several victims of Mail Online themselves. They clearly loathed the website and the way it tarnishes and debases their profession. “Keep pestering and shaming them till you get a response,” one urged me. Take legal action, others exhorted me. “Could a groundswell from working journalists develop into a concerted effort to stop the theft?” SubScribe asked hopefully.

Then, as pressure from social media grew, Mail Online capitulated. Scott Langham, its deputy managing editor, emailed to say it would pay my invoice – but “with no admission of liability”. He even asked if it could keep the offending article up online, only with my byline instead of McLelland’s. I declined that generous offer and demanded its removal.

When I announced my little victory on Facebook some journalistic colleagues expressed disappointment, not satisfaction. They had hoped this would be a test case, they said. They wanted Mail Online’s brand of “journalism” exposed for what it is. “I was spoiling for a long war of attrition,” one well-known television correspondent lamented. Instead, they complained, a website widely seen as the model for future online journalism had simply bought off yet another of its victims.