Over at the American site National Review there is a call – in all seriousness – for the franchise to be restricted.
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(‘Don’t give oxygen to such things,’ demand those unaware that ‘not giving oxygen’ to Trumpism and Brexit did nothing to stop the rise of such notions – but this is a law and policy blog and it exists to offer comment on such developments.)
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The contention at the National Review moves from the fact that as there are certain restrictions on voters – for example, felons – to urging that there should be other restrictions.
The entire piece is a practical exercise in political sophistry.
Yet it was commissioned for and published on a well-known website.
It is an attempt to re-open debates that one would have thought were long settled.
It is nothing less than an effort to re-impose Jim Crow type voting restrictions.
It is a dangerous development.
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This law and policy blog is written from a liberal rather than a democratic perspective.
That is say that there are certain things – such as fundamental human rights – that should not be subject to votes.
Even if a majority of people supported the torture of one human being, that torture would still be absolutely wrong.
Such a liberal perspective is alert to and wary of the consequences of populism and demagogues and majoritarianism.
Democracy can be illiberal – and just because a thing has a democratic mandate, it would not make a thing that is fundamentally illiberal right and proper.
But.
When things are subject to democratic oversight and control, then the votes should be equal and the franchise as universal as possible, and there should not be ‘super-voters’ with more democratic power than others.
In the United Kingdom, it actually used to be the case that such privileged voters did exist – those with more of a ‘stake’ in the community would/should have a better chance of a vote – and these were bog-standard arguments in the lead up to the 1832 reform act.
In the United States, such arguments were used to in effect disenfranchise slaves and those descended from slaves.
The anti-democratic arguments now being put forward have not really been put forward so earnestly and with such force since the 1800s.
It is almost as if the ‘march of democracy’ has not only halted but is now retreating – a corrective to the simple notion of linear political progress.
Authoritarianism and anti-democracy, like illiberalism, has never really gone away – it just was not so prominent for a while, at least in the United Kingdom – making liberals and progressives complacent.
Perhaps such anti-democratic views are just a blip – and we will carry on heading towards the right side of history.
Or perhaps there is no natural line of political progression – and every generation has to win the arguments for liberalism and democracy afresh.
The post-2016 anti-democratic, illiberal turn is not over yet.
Brace, brace.
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Ten years ago this month the singer David Emmanuel – known as Smiley Culture – died under arrest during a police raid.
The cause of death was a knife wound – which the police said was self-inflcited.
Ten years ago I blogged about this extraordinary death – and so this post is a follow-on so as to see what happened (and did not happen) next.
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Smiley Culture was part of the soundtrack of those of us brought up in the 1980s.
Have a click and listen and watch.
The sneering, aggressive vocal characterisation of the officer – ‘Shut your bloody mouth. We ask. You answer’ – felt spot on for those in communities which dealt with the police.
Police Officer especially caught a certain mood about the police’s attitude.
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Here is the singer posing outside a south London police station on the cover of the single:
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The news of the circumstances of the death of Smiley Culture seemed – literally – incredible.
That someone could stab themselves fatally in the chest in the presence of police officers seemed surreal – like something akin to those lines in the Blackadder episode Dish and Dishonesty.
But this – horrifically – was real, not a fiction.
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The name of Smiley Culture is now recalled as one of a long list of name of black people who have died in police custody or in similar situations.
So what happened with his case?
Putting events together now, the main consequence of the death was a coroner’s inquest in June-July 2013.
After a two-week hearing, the jury returned a majority verdict that the cause of death was indeed suicide.
(A majority verdict, of course, means that the jury could not come to an unanimous verdict, which in turn means that at least one juror had doubt that it was a suicide.)
According to a BBC report, the inquest heard medical evidence that the fatal wound could have been self-inflicted, if the right spot was chosen:
‘Dr Nathaniel Cary, who carried out a second post-mortem examination on Mr Emmanuel’s body, said told the inquest it was possible the fatal stab wound was, as described, a self-inflicted injury.
‘But he said that on pathological grounds alone there was nothing to determine that this was the case, although it was fair to say the site chosen may be used in self-infliction.’
The majority of the jurors accepted this as the explanation.
As counter-intuitive as this verdict may seem, it must be remembered that those jurors sat through two weeks of evidence – which was cross-examined on behalf of the deceased’s family.
But another person who sat through that hearing – the daughter of Smiley Culture – was not satisfied.
‘After listening to over two weeks of evidence and having had the opportunity to test the accounts of the officers, I feel no closer to the truth than I did before.
‘I have approached this inquest with an open mind hoping to hear for myself what happened on the day of my dad’s death.
‘Despite the jury’s verdict, the inconsistencies in the evidence have only served to raise serious concerns on my part about what really happened on the morning of March 15 2011.’
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That a person in a room drinking tea with a police officer should suddenly get up, produce a large kitchen knife and plunge it in his own chest so as to kill themselves is, even accepting the jury’s verdict, an extreme fact situation.
Even if it were suicide, there are questions to be asked about how it happened, and answers to be given in the public interest.
‘Despite the suicide verdict, the jury did find that the way in which Mr Emmanuel was supervised following his arrest materially contributed to his death. In particular, the fact that a single officer was left to supervise Mr Emmanuel while also completing paperwork was felt to be inappropriate.
‘The inquest has also highlighted serious failings in the Independent Police Complaints Commission’s investigation, including a failure to attend the scene until some four hours after the event, a failure to secure all relevant evidence, and a failure to critically analyse opinions expressed by the expert witnesses.
‘Following the verdict, the Coroner, Mr Richard Travers, said that he would write to the Metropolitan Police Service, highlighting failures that contributed towards the death, making recommendations for changes aimed at preventing similar tragedies in future.’
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The (then) Independent Police Complaints Commission issued the following press release after the inquest verdict (emphasis added):
‘Following today’s conclusion of the inquest into the death of David Emmanuel, also known as Smiley Culture, IPCC Commissioner Mike Franklin said:
‘David Emmanuel’s death caused huge shock, anger and disbelief in the community and I am aware that many people, most importantly Mr Emmanuel’s family, have waited over two years for the evidence to be heard at an inquest.
‘The ongoing dynamic assessments made by officers on the 15 March 2011 were left wanting. Four experienced officers felt it appropriate to detain a suspect in the kitchen, potentially the most dangerous room in the house and afforded him a level of freedom not normally associated with an operation of this kind.
‘The IPCC has made a series of recommendations to the Metropolitan Police following this investigation presenting them with areas that should be reviewed and changed in light of the findings. These include recommendations on dynamic risk assessments, the sharing of information and use of officer personal safety equipment.
‘The IPCC made two national recommendations following this investigation. The first is that officers should always detain people in the safest part of the house. Therefore kitchens must generally be avoided at all times. The second national recommendation focused on officer safety equipment and that all officers and staff attending search operations should carry with them the appropriate personal safety equipment.
‘While the IPCC highlighted these areas of learning for the MPS, the officers’ actions did not meet the threshold for misconduct under the Police (conduct) Regulations 2008 and no disciplinary action has been recommended.
‘I hope that this inquest has provided Mr Emmanuel’s family with some of the answers they and the community have so patiently waited for. This has been a long process for all the parties involved and I would like to thank them for their patience.
‘Notes to editors
‘Mr Emmanuel died on 15 March 2011 of a single stab wound through the heart at his home on Hillbury Road in Warlingham, Surrey. Four officers from the Metropolitan Police Service (MPS) were at the house at the time, carrying out a search of the property.
‘After careful consideration and in consultation with lawyers from both the IPCC and the Crown Prosecution Service (CPS), Commissioner Mike Franklin, took the decision not to formally refer the case to the CPS as the investigation found no evidence that a criminal offence may have been committed.
‘Consideration was also given as to whether the actions of individual officers met the threshold for misconduct under the Police (conduct) Regulations 2008. The investigation found there were no individual failings which, for the purposes of the Regulations, amounted to misconduct.’
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So the conduct of the police was ‘found wanting’, somebody died under arrest, but this was an opportunity for ‘learning’ rather than any formal proceedings.
The coroner, in turn, also made recommendations.
Thanks to a tweeter, we have what appears to have a formal record of the recommendations:
Presumably this is report 208 on p39 at https://t.co/2zixUC50Q4 ? If the inquest had been 4 weeks later we could read the letter and responses.
No doubt in each of those situations there are special facts – but it is marked that the police rarely face any proceedings, let alone criminal charges for any of these deaths.
And it may well be that the close scrutiny of each case could dispel any suspicion that something wrong happened every time.
But the accumulation of deaths as set against the absence of successful prosecutions seems to be a mismatch.
Given the facts of the death of Smiley Culture, as determined by a majority of a jury, it may contested that his death is not as glaring example of this apparent trend of injustices as many others.
But like one or two of the others that have died while in the custody (or ‘care’) of the police, he happened to be more famous than the rest, and so his is one of the names that will be cited.
And even the IPCC found the conduct of the police at the time of his death to be ‘wanting’ – with both the IPCC and the coroner separately making recommendations about how such searches are conducted in future.
So even if one accepts the coroner’s inquest – and again the jury heard the relevant evidence cross-examined and a majority of those jurors were convinced it was suicide – the death followed carelessness by the police.
I am still seeking to find out if those recommendations were formally accepted by the police and the home office – though I have been told by police sources that the training for such searches now includes the need for risk assessments that would cover what happened in the death of Smiley Culture.
I will post here again on this subject when I have further information about what happened with the recommendations of the coroner and the IPCC.
It is important to follow these things through, even ten years later – especially as black people continue to die in police custody, and there are never any formal proceedings.
**
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And that, in turn, is the account of the Gloucestershire Police Federation as it is directly linked to at their website (top right).
So, yes, it is a real tweet.
A real tweet by a real chair of a real police federation.
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Having established the tweet’s authenticity, let us now look at its content.
The tweet states that the police are not public servants.
More exactly that ‘technically’ the police are not public servants.
As there is no ‘technical’ definition of the term ‘public servant’ this is a nonsense.
That a police constable is a servant of the crown – as are many civil servants – does not mean that they are also not public servants.
Crown servants – and others employed by the state in whatever legal form – are public servants.
Now look at the context of the tweet – it is intended as a correction in reply to a fair comment that the police should serve the public, not the government.
The reply denies that this is the case.
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But not only does this tweet deny that the police are public servants – it also frames the concept of ‘policing by consent’ as a ‘general principle’ but not a ‘duty’.
‘To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect.’
Indeed, each of the principles is set out as an express ‘instruction’ to constables: ‘to recognise’, ‘to maintain’, ‘to use’ and so on.
As such each of the principles is also a duty – and this is because – ahem, technically – a duty can also be a principle, and vice versa.
Especially when they are expressly framed as such, as they are in that formal definition of ‘policing by consent’.
But for our tweeter, these express instructions can be defined out of from having any actual application because they are only ‘principles’.
This, like the tweeter’s other distinction, is itself worrying and telling.
Policing by consent is not an optional nice-to-have in modern society – it is foundational.
That it can be expressly stated to not be a duty – notwithstanding the actual words of the instructions – is a disturbing insight.
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Perhaps the tweet was a just a slip, not to be taken seriously.
(Though, remember the police themselves are often not so forgiving of the slips of others.)
Perhaps there will be a clarification, or something.
Or perhaps the tweets provided an indication – an insight – into a mindset of certain police officers.
That not being public servants and that not policing by consent are both a quick distinction away from having practical application in the discharge of their important role in our society.
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And for seventy years the offence was hardly noticed, though it was reenacted from time to time as telecommunications legislation was, ahem, modernised and simplified.
Then in 2003 it was reenacted yet again, but in terms that (without any proper consideration) ended up covering the entire internet:
But it was still not really noticed.
Until one day some bright spark at the crown prosecution service realised the provision’s broad terms were a prosecutorial gift in the age of social media.
In allowing the appeal against conviction, the lord chief justice said:
In other words: the intention of the 2003 reenactment had not been to widen the scope of the offence in respect of fundamental freedoms.
(Declaration of interest: I was the appeal solicitor before the high court in that case.)
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Coming back to clause 59, it may well be that the intended effect of clause 59 is to merely restate the existing law.
Some are convinced by this view:
This is particularly so when the Bill is explicitly restating the common law. I would expect the Courts to apply the old caselaw to the new, statutory offence.
— Yet Another Tweeting Barrister (@TweetingYet) March 20, 2021
But.
What we will have, once enacted, will be an offence – that is, an arrestable and chargeable offence – which, on the face of it is in extraordinary broad terms, using such everyday language as ‘annoyance’.
It may be that the higher courts will, as any appeals come in, apply the technical meaning in property law of ‘annoyance’.
The law in practice is not that (only) of the judgments of the high court and above: it is what police officers and crown prosecution service case workers believe the law to be and see the law as it is set out.
It is also can be what zealous complainants to the police say it to be.
And none of these people will – understandable and perhaps rightly – be well versed in the case law of ‘annoyance’ in respect of the old law of public nuisance.
They will just see an arresting and charging power – and a power to set conditions.
So it should not be left to the courts ‘to apply the old caselaw’.
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Criminal offences – and their limits – need to be clear and precise to everyone involved: citizen, complainant, arresting officer, crown prosecution service case worker, busy junior legal aid solicitor giving advice on plea – as well as to erudite barristers and even more erudite judges.
And so: even taking the point about this being a mere modernisation and simplification at its highest, clause 59 currently contains worryingly wide drafting.
Most people reading clause 59 by itself will believe there is a criminal offence – with a sentence of up to ten years – for causing mere annoyance.
Even if that it not the government’s intention, that is how the current provision can be read.
And because of this, people may suffer the life-changing events of being arrested and being charged – and may even plead guilty.
Unless, of course, that is the government’s real intention.
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It did not seem a promising move: just an attempt by the government to find cover for an assault on judicial review by means of a hand-picked commission.
But.
It is sometimes strange how things turn out.
The commission has now reported – and just a skim of the report shows that the government did not get the report it was hoping for.
In large part, the report appears to be an affirmation of the current position of judicial review – with minor changes that it is hard to feel strongly about.
(A close read of the report may dislodge this happy impression – but that is this blog’s preliminary view.)
The concluding observations of the report could have even be a post on this very blog:
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In receipt of the report, the Ministry of Justice decided that it would try harder to find people to tell them what they wanted to hear.
We want to keep this conversation going.
That’s why we’re launching a public consultation to explore further measures informed by the panel’s analysis.
Like a frustrated news show producer who cannot find any talking-head expert to say the desired things, the Ministry of Justice is now resorting to a Vox Pox.
The discrepancy is between the heady rhetoric of ‘activist judges’ – a rhetoric that has a life of its own – and the mundane reality of what actually happens in courts.
The commission, to their credit, looked hard and reported on what they saw.
Yet those Ministry of Justice, to their discredit, want to keep on until they are told what they want to hear.
Perhaps the Ministry of Justice will get what they want – and then move to limit judicial review.
One can never be optimistic about law and policy for very long, and the illiberals and authoritarians are relentless.
But this report is a welcome break from the push towards populist authoritarianism in our political and legal affairs.
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Earlier this week the house of commons passed the government’s illiberal Police, Crime, Sentencing, and Courts Bill with a ninety-six majority.
So given this high majority the obvious question is what would actually stop or hinder a populist and authoritarian government from seeking to pass primary legislation that would remove or undermine basic legal protections and rights?
This is not a trivial or academic question.
The usual ‘gatekeepers’ that would prevent a government from not even proposing such things are no longer in place.
For example, the offices of lord chancellor and attorney-general are occupied by politicians who happen to be lawyers but have no credentials in protecting either the rule of law or fundamental freedoms.
And we have a government heady with ‘will of the people’ rhetoric that has developed a taste for attacking or disregarding what checks and balances the constitution of the United Kingdom has to offer.
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In constitutional theory, the next check – once legislation is proposed – is the house of commons.
But with such a large majority – and the tendency for even supposedly ‘libertarian’ government backbenchers to vote in accordance with the whip and accept limp front-bench assurances – there is no realistic way that the house of commons is any check or balance on this government.
And if the opposition do oppose – which cannot be assumed, given the official opposition’s habit of not opposing things for tactical and strategic reasons – then such opposition can and will be weaponised by hyper-partisan ministers and their media supporters.
*
Next there is the house of lords, where (fortunately) the government does not have an in-built majority.
And the house of lords can vote things down and pass amendments.
But.
When constitutional push comes to political shove, the house of lords will usually backdown once the house of commons has reaffirmed its support for a measure.
This is in part that the the house of lords has a, well, constitutional disability in respect of confronting the democratic house.
There will only be a few occasions where the house of lords will use its power to delay legislation under the parliament acts.
And that power is that: to delay.
A determined government, with the support of the house of commons, will get its legislative way in the end.
There are a very few exceptions to this: such as a bill containing any provision to extend the maximum duration of a parliament beyond five years.
But otherwise: there is nothing that can ultimately stop an illiberal bill eventually becoming an act of parliament.
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And then we come to the courts.
Here we have another problem.
Because of the doctrine of parliamentary supremacy there is nothing that the courts would be able to do – as long as the government has ensured that the statutory drafting is precise and tight.
The human rights act, for example, provides no legal basis for an act of parliament to be disapplied.
The judgments of the European court of human rights are not binding.
The European communities act, which did enable a court to disapply an act of parliament on certain grounds, is no longer part of domestic law.
‘Common law rights’ capable of frustrating an act of parliament exist only in undergraduate law student essays.
Even with the powers the courts do have, the government is seeking to limit access to judicial review by all possible means: in substantive law, by procedural restrictions, and by denying legal aid.
Before the general election of December 2019 we had the unpleasant predicament of a government that was populist and authoritarian – but at least it did not have a parliamentary majority.
Now, by reason of that general election and its result, we have a government with the same illiberal instincts but with all the sheer legal force of parliamentary supremacy at their disposal.
That the opposition parties facilitated an early general election in December 2019 was a moment of political madness.
And now – until at least December 2024 – we have a government that is able with ease to get the house of commons to pass the most illiberal legislation – and there is ultimately nothing that either the house of lords or the courts can do – as long as the legislation is precise and tight.
Brace, brace.
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The problem of political language not being tied firmly to particular meanings is not a new one:
‘From where Winston stood it was just possible to read, picked out on its white face in elegant lettering, the three slogans of the Party:
WAR IS PEACE
FREEDOM IS SLAVERY
IGNORANCE IS STRENGTH’
Indeed, it is no doubt a problem as old as political discourse itself.
But the fact that it is not a novelty does not make it any less irksome.
And nor does it mean that its instances should be left unremarked.
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Currently there is a severe dislocation between political words and things.
Those ‘free speech warriors’ who decry ‘cancel culture’ often seem at ease with a government putting forward legislation that is capable of prohibiting any form of effective protest.
There are also the ‘classical liberals’ who commend ‘free trade’ who are in support of Brexit, which is the biggest imposition of trade barriers on the United Kingdom in modern history – and has even led to a trade barrier down the Irish Sea.
And there are the champions of the liberties under Magna Carta and of ‘common law rights’ who also somehow support restrictions on access to the court for judicial review applications and sneer at imaginary activist judges.
Like a gear stick that has come loose, there seems no connection between the political phrases and the policy substance.
But the phrases are not meaningless – they still have purchase (else they would not be used).
The phrases are enough to get people to nod-along and to clap and cheer.
It is just that they are nodding-along and clapping and cheering when the actual policies then being adopted and implemented have the opposite effect.
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Can anything be done?
An optimist will aver that mankind can only bear so much unreality – and that people will realise they have been taken in by follies and lies.
That, for example, Americans will realise that politicians who seek support to ‘make American great again’ have made America anything but.
Or that those who said they would ‘get Brexit done’ have instead placed the United Kingdom in a structure where Brexit will be a negotiation without end.
Or there will be a realisation that a government is seeking greater legal protections for statues than for actual human beings.
*
A pessimist will see the opposite – that the breakdown of traditional media and political structures (with traditional political parties and newspapers seeming quaint survivors from another age) – means that it will be harder to align words with meanings.
Meaning the dismal prospect of liberals and progressives having to also adopt such insincere approaches so as to counter and defeat the illiberals and authoritarians.
Whatever the solution, it needs to come rather quickly – at least in the United Kingdom – as the current illiberal and authoritarian government is in possession of a large parliamentary majority and is showing itself willing and able to push through illiberal and authoritarian laws and policies.
While pretending to itself and others that it has ‘libertarian instincts’.
And so it may not just be the gear stick which has come loose but also the brakes as well.
Brace, brace.
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There is currently a bill before parliament that will, among other things, create a new statutory offence of ‘public nuisance’.
This new offence – as currently set out in the bill – is itself causing annoyance and distress.
Why is it being proposed?
And what should parliament do about it?
*
Like a lamp in Aladdin – it is a new offence for an old one.
If the new offence is enacted then the current ‘common law’ (that is, non-statutory) offence of public nuisance will be abolished.
The current offence is ill-defined and rarely used – and it has been the subject of 2015 reform proposals from the Law Commission – see here.
(Of course, the fact that the Law Commission proposed reform in 2015 is not the reason why the home office have chosen to propose changes in 2021.)
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On the face of it, reform and simplification are good things.
Who could possibly oppose something as laudable as reform and simplification?
And the Law Commission does have a point – the current law is somewhat vague and archaic.
The current law is usually stated as:
‘A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.’
The bill before parliament proposes that old offence to be replaced by this:
As you will see there are elements of the current offence copied over to the new offence – and that although this is an exercise in ‘simplification’ it also happens to be rather longer.
Words like ‘annoyance’ are added.
But the new offence has not plucked the word ‘annoyance’ out of the air: annoyance can be a component of the current offence, and it has featured in case law.
The word ‘annoy’ (and its variants) is mentioned thirty-seven times in the Law Commission report.
The Law Commission summarises their view as (at paragraph 3.12):
‘One question is the nature of the right or interest which public nuisance seeks to protect. In our view, its proper use is to protect the rights of members of the public to enjoy public spaces and use public rights (such as rights of way) without danger, interference or annoyance.’
Whatever ills can be blamed on the home secretary and the home office, the content of this proposed provision is not entirely of their creation.
*
But.
Each and every piece of legislation needs to be scrutinised on its own terms – and neither parliamentarians nor the public should just nod-along because the magic words ‘reform’ and ‘simplification’ are invoked.
Never trust the home office.
And if one looks through clause 59 carefully and trace through how it works, it is potentially a chilling and illiberal provision.
For example (with emphasis added):
‘A person commits an offence if— (a) the person— (i) does an act […] [which](b) the person’s act or omission […] (ii) obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and (c) the person […] is reckless as to whether it will have such a consequence. […] (2) For the purposes of subsection (1) an act or omission causes serious harm to a person if, as a result, the person […] (c) suffers serious distress, serious annoyance, serious inconvenience or serious loss of amenity,or (d) is put at risk of suffering anything mentioned […].
The offence is thereby made out not if a person is caused ‘serious annoyance’ but only if there is a ‘risk’ of them suffering it.
And there does not need need to be any directed intention – mere recklessness will suffice.
The maximum sentence for simply putting someone ‘at risk of suffering’ serious annoyance is imprisonment for a term not exceeding ten years.
Of course, maximum sentences are maximum sentences, and in practice the penalties will be lower.
Yet, the creation of such an offence in these terms will have a knock-on effects on the powers of police to arrest and to set conditions.
And it is in the day-to-day exercises of such powers by the police that the real chill of any offence is most keenly felt – and not the ultimate sentencing power of a court.
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This provision and other provisions in the bill before parliament have the potential to greatly restrict the rights of individuals to protest – or even go about their everyday activities.
As such, such provisions should receive the anxious scrutiny of parliamentarians.
Despite the Law Commission origins of the proposed reform – there may be plenty here that the home office have added – and for various illiberal reasons.
Members of parliament are not there to nod-along – and this particular proposal should not just be nodded-through.
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A recent court of appeal case has provided an insight into how the United Kingdom state both authorises people to commit criminal offences and then protects them from prosecution.
To show how this is done is not necessarily to condemn – or endorse – such governmental practices.
You may well believe that it is right that in certain covert operations those acting on behalf of the state should be able – as part of their cover – be able to break both the criminal and civil law for the greater good.
Or you may believe it should not be legally possible and that such things have the effect of placing state agents above the law.
In either case there is value in understanding just how it is done.
The first stage is to determine whether there is sufficient evidence against a defendant – this is called the evidential test.
The second test – treated as a routine formality in most every-day cases – is whether, distinct from the evidential test, there is a public interest in a prosecution – this is called the public interest test.
The notion is that there is a presumption that a prosecution is in the public interest unless there is a reason why such a prosecution was not in the public interest.
And it is at this second stage that state-authorised criminals are protected from prosecution.
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But it is important to note that this protection is not a legal immunity.
Oh no, not at all, definitely not, how could you think such a thing?
The contention is that because in theory a prosecution can still occur then state agents are not technically above the law.
And placing state agents above the law would be a bad thing, and such a bad thing would never happen.
An authorisation for a state agent to break the law does not confer immunity from prosecution – it instead provides a factor which a prosecutor takes into account when making the decision whether a prosecution is in the public interest or not.
In this elaborate – and for some, artificial – form the state has both its cake and a file inside it.
State agents are protected from prosecutions for their criminal acts – but are not given immunity.
It is just that the prosecutions will not happen.
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The court of appeal case is the latest (and perhaps last) stage in an important public interest case which, among other public benefits, has led to the disclosure of hitherto secret guidance on authorising state agents to commit criminal effects.
The judgment at paragraph 14 even published a redacted version of the guidance.
One paragraph of that guidance describes the legal effect and consequences of an authorisation (which I break up into smaller paragraphs for flow):
‘9. An authorisation of the use of a participating agent has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution.
‘Rather, the authorisation will be the Service’s explanation and justification of its decisions should the criminal activity of the agent come under scrutiny by an external body, e.g. the police or prosecuting authorities.
‘In particular, the authorisation process and associated records may form the basis of representations by the Service to the prosecuting authorities that prosecution is not in the public interest.
‘Accordingly, any such authorisation should, on its face, clearly establish that the criteria for authorisation are met, in terms which will be readily understood by a prosecutor.
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To a certain extent the court of appeal case is of historic interest, because the government has now legislated to place part of this system on a statutory basis.
This inserts the glamorous-sounding ‘section 29B – Covert human intelligence sources – criminal conduct authorisations’ into the Regulation of Investigatory Powers Act 2000, including this definition:
‘A “criminal conduct authorisation” is an authorisation for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source.’
You will note – perhaps worryingly – that there is no limit on what criminal actions may be authorised.
(And those circumstances explain why the Pat Finucane Centre were one of the groups bringing the legal challenge.)
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On the face of it: murder and other serious criminal offences can be authorised by the state: there is no express limit.
But, of course, such things would never happen.
Ahem.
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Paragraph 113 of the judgment also reveals something interesting:
‘The undisputed evidence generally was that the Security Service works closely with the police in counter-terrorism operations. The evidence also reveals that there is, for example, a Memorandum of Understanding between the Security Service, the police and the Counter Terrorism Division of the Crown Prosecution Service.’
This memorandum of understanding, of course, does not seem to be in the public domain.
As a ‘memorandum of understanding’ this would be a formal, legal-looking document – complete with pompous earnest language and paragraph numbers – but it is as much an imposter as any covert agent.
The purpose of a memorandum of understanding between government entities is to have the effect of a binding agreement – but without any of the inconveniences of it actually being a legal instrument, such as transparency.
There are memorandums of understanding all over the state (and between the United Kingdom and other states) – many of which are secret – but all of which are crucial in the conduct of government and public affairs.
The court of appeal’s helpful mention of the existence of this memorandum of understanding tells us how – as a matter of process – the authorisations are in practice converted into decisions not to prosecute.
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Again: you may take the view that all this is not something to worry about and that government is doing what it has to do so as to keep us all safe.
Nothing in this post should be taken to gainsay such an entirely valid view.
The purpose of this post is to use information in the public domain so as to show how the state goes about doing what it does.
And there is even a reason to welcome the 2021 act even if one is a liberal or progressive.
The more of what the state does that is placed on a public statutory basis the better in any democratic society that values the rule of law.
So although the various public interest groups failed in their appeal, their dogged-determined litigation has led to certain things becoming public knowledge and perhaps being placed on a statutory footing that were not public knowledge before.
Just because some things should be covert it does not mean all things have to be covert.
And there is not a good reason why the ways and means by which the state authorises criminal conduct and then protects its agents from prosecution should not be in public domain – and in a democratic society that values the rule of law there is a good reason why it should be.
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EDIT
The first version of this post had a mention of the Criminal Injuries Compensation Scheme – but the point I made now appears to be incorrect – so I have deleted that section so I can consider it again.
Apologies.
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As the year 2016 recedes there will be a temptation to think that the politics of 2016 will eventually recede too.
Things come and go, and human affairs often move in circles – a period of illiberalism will surely be followed, soon enough, by a liberal spring.
The days will start getting lighter, and so on.
But what if that does not happen – and the days stay just as dark, and perhaps get even darker.
What if Trump and Brexit were not low-points but preludes?
Such have been the various social, economic, technological and media dislocations of the last couple of decades, there is no particular reason to believe that we will have a happy return to the certainties of a previous political order.
In the United Kingdom, for example, we still have the government gaming legality and threatening – again – to break the law to the claps and cheers of the easily impressed.
In the United States, Trump may have (temporarily) gone – but Trumpism certainly has not.
Certain politicians know that appealing to and motivating a particular illiberal constituency will be sufficient to keep them in or close to power.
And this sort of politics will mean that constitutional norms will continue to be contested and politicised.
If this dismal prospect is in the offing, then what is there to do from a liberal constitutionalist perspective?
From the point of view that there is a balance between the rights of an individual and the powers of the state, and that each element of the state – and especially the executive – should be subject to checks and balances.
What should one do if things do not, eventually, settle down?
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This is a serious problem – as liberal constitutionalism is not well suited to hyper-partisanship.
Liberal constitutionalists who react with outrage or despair are the ‘owned libs’ whose adverse reactions are validation of the provocations.
And those who seek to avoid confrontation run the unpleasant risks of quietism.
Perhaps, as one Victorian politician put it: not all problems have solutions.
Perhaps it is now the lot of liberal constitutionalists just to try to protect what they can in the face of illiberal onslaught.
That is: in describing the world that is passing away.
It is a depressing predicament.
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All this said, there is some scope for optimism.
Even taking Brexit and Trump at their highest, both were checked by constitutionalism.
There was no hard Brexit – and the two Miller cases and the Benn Act ensured that there was both a withdrawal agreement and a trade and cooperation agreement.
There was not a successful coup in the United States of America – the electoral college was not subverted.
Liberal constitutionalism has taken a substantial bashing in both the United Kingdom and the United States – as well as elsewhere – but it has not (yet) collapsed, and indeed it has shown marked resilience.
Liberal constitutionalism is perhaps turning out to have been stronger than those of us at the time realised.
And so there is still a role for liberal constitutionalism in the post-Brexit and post-Trump age.
The huffs and puffs have not (yet) blown the liberal constitutionalist house down.
We may be in in a post-Brexit and post-Trump age – but we not (yet) in a post-liberal and pst-constitutionalist age.
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Each post on this blog takes time, effort, and opportunity cost.
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*****
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