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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Leader: Trump and an age of disorder

Mr Trump’s disregard for domestic and international norms represents an unprecedented challenge to established institutions.

The US presidency has not always been held by men of distinction and honour, but Donald Trump is by some distance its least qualified occupant. The leader of the world’s sole superpower has no record of political or military service and is ignorant of foreign affairs. Throughout his campaign, he repeatedly showed himself to be a racist, a misogynist, a braggart and a narcissist.

The naive hope that Mr Trump’s victory would herald a great moderation was dispelled by his conduct during the transition. He compared his country’s intelligence services to those of Nazi Germany and repeatedly denied Russian interference in the election. He derided Nato as “obsolete” and predicted the demise of the European Union. He reaffirmed his commitment to dismantling Obamacare and to overturning Roe v Wade. He doled out jobs to white nationalists, protectionists and family members. He denounced US citizens for demonstrating against him. Asked whether he regretted any part of his vulgar campaign, he replied: “No, I won.”

Of all his predilections, Mr Trump’s affection for Vladimir Putin is perhaps the most troubling. When the 2012 Republican presidential nominee, Mitt Romney, warned that Russia was the “number one geopolitical foe” of the US, he was mocked by Barack Obama. Yet his remark proved prescient. Rather than regarding Mr Putin as a foe, however, Mr Trump fetes him as a friend. The Russian president aims to use the US president’s goodwill to secure the removal of American sanctions, recognition of Russia’s annexation of Crimea and respect for the murderous reign of the Syrian president, Bashar al-Assad. He has a worryingly high chance of success.

Whether or not Mr Trump has personal motives for his fealty (as a lurid security dossier alleges), he and Mr Putin share a political outlook. Both men desire a world in which “strongmen” are free to abuse their citizens’ human rights without fear of external rebuke. Mr Trump’s refusal to commit to Nato’s principle of collective defence provides Mr Putin with every incentive to pursue his expansionist desires. The historic achievement of peace and stability in eastern Europe is in danger.

As he seeks reconciliation with Russia, Mr Trump is simultaneously pursuing conflict with China. He broke with precedent by speaking on the telephone with the Taiwanese president, Tsai Ing-wen, and used Twitter to berate the Chinese government. Rex Tillerson, Mr Trump’s secretary of state nominee, has threatened an American blockade of the South China Sea islands.

Mr Trump’s disregard for domestic and international norms represents an unprecedented challenge to established institutions. The US constitution, with its separation of powers, was designed to restrain autocrats such as the new president. Yet, in addition to the White House, the Republicans also control Congress and two-thirds of governorships and state houses. Mr Trump’s first Supreme Court appointment will ensure a conservative judicial majority. The decline of established print titles and the growth of “fake news” weaken another source of accountability.

In these circumstances, there is a heightened responsibility on the US’s allies to challenge, rather than to indulge, Mr Trump. Angela Merkel’s warning that co-operation was conditional on his respect for liberal and democratic values was a model of the former. Michael Gove’s obsequious interview with Mr Trump was a dismal example of the latter.

Theresa May has rightly rebuked the president for his treatment of women and has toughened Britain’s stance against Russian revanchism. Yet, although the UK must maintain working relations with the US, she should not allow the prospect of a future trade deal to skew her attitude towards Mr Trump. Any agreement is years away and the president’s protectionist proclivities could yet thwart British hopes of a beneficial outcome.

The diplomatic and political conventions embodied by the “special relationship” have endured for more than seven decades. However, Mr Trump’s election may necessitate their demise. It was the belief that the UK must stand “shoulder to shoulder” with the US that led Tony Blair into the ruinous Iraq War. In this new age of disorder, Western leaders must avoid being willing accomplices to Mr Trump’s agenda. Intense scepticism, rather than sycophancy, should define their response.

This article first appeared in the 19 January 2016 issue of the New Statesman, The Trump era