The great con trick of the politics of criminal law and policy

 6th April 2021

Anyone who knows and cares about the criminal justice system in England and Wales knows that the system is collapsing – and that the word ‘system’ is itself hardly still applicable.

On the face of it, however, this presents a paradox.

For we have a government – with loud and shouty political and media supporters – committed to ‘Law and Order!’.

You would think that a government with such a stated priority would ensure that the substance of policy would have some correspondence to the rhetoric of its politics.

You would be wrong.

For, as this blog has averred elsewhere, there is a distinction – a dislocation – between the politics and the actuality of the criminal justice system.

It is easy for a politician to get claps and cheers with demands for ‘tougher penalties’ and ‘crackdowns on crime’!

Time-poor political reporters will type easily about ‘new laws’ and ‘longer sentences’ and so on.

And voters will nod-along, as they are fooled into thinking some useful thing is being done.

But there is no point having tougher and tougher penalties, and longer and longer sentences, and more and more laws, if the criminal justice system itself is not working.

As the former attorney general Dominic Grieve sets out in this article, the reality is that the system is halting and crashing.

Part of the problem is lack of cash – and for the the reasons Grieve submits.

But another part of the problem is a lack of policy seriousness – an assumption that it ultimately does matter that the criminal justice system comprises a motley of inadequate court buildings, demoralised staff, badly let contracts, ancient IT systems, health and safety horrors, a general lack of safety for everyone involved, and a general drift of the system towards discharging greater re-offending, and not less.

If you invited a demon to devise the worst possible state of affairs in the criminal justice system the current situation is pretty much what you would get.

But: ‘new laws’ and ‘longer sentences’ and ‘tougher penalties’ and ‘crackdowns on crime’!

Slogans that are like loose gear sticks and brakes, not attached to any other part of the vehicle.

Perhaps the only consolation is that such an absolute system failure tells against England and Wales becoming, in practice, an authoritarian state.

But it is not only authoritarian states that need a functioning criminal justice system – modern liberal democracies need working criminal justice systems too.

And so we have a system that should satisfy nobody – other than of course, dishonest purveyors of easy criminal justice solutions: fraudsters of modern politics.

***

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‘We are not public servants’ and ‘policing by consent is not a duty’ – the disturbing and telling views of a police officer

27th March 2021

Here is a tweet.

The tweet purports to be from the chair of the Gloucestershire branch of the Police Federation.

This description must be true, because a tweet from that account was RTd just hours before by the account of the Gloucestershire Police Federation – and it can be assumed that they would not RT an imposter.

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.

*

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.

*

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’.

Here the tweeter errs again.

If one actually reads the once-famous Peelite principles of policing, you will see this as the second principle:

‘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.

*

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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The performative nastiness of the Home Secretary

24th March 2021

The office of home secretary is one that often does not bring the best out of its occupants.

Indeed, for a while the phrase ‘former Labour home secretary’ was one of the most illiberal phrases in the political lexicon.

Once could think of exceptions – Roy Jenkins, of course, and to a limited extent William Whitelaw and Douglas Hurd (though the latter two only seem more ‘liberal’ by comparison).

On the whole, however, just as certain experiences bring out the worst in human nature, being home secretary can bring out the worst in any politician.

But.

At least former home secretaries had the grace to pretend otherwise.

Remember the grave sorrowful face of, say, Jack Straw as he solemnly warned of the need of some ‘tough new measures’ – enticing you to nod-along with his sense of national emergency.

And Theresa May as home secretary even once stunned the police federation with a full-on speech about police reform.

In essence: the home office was a tough-old job, but some politician had to do it.

But what home secretaries did not do – at least not in public – is revel in the capacity of the office to cause harm and upset.

And so we come to the current home secretary.

Today’s news is typical of their approach:

Before May was home secretary there was a famous conference speech – framed in cautionary terms – about the Conservative Party becoming the ‘Nasty Party’.

For the current home secretary that speech has instead become a manifesto.

And as someone has averred on Twitter, this is not exceptional to the United Kingdom:

The Cruelty Is The Point.

(See here.)

What an unpleasant vista this is on our current politics.

The important thing to note, however, is not so much (yet) that the powers and objectives of the home office have profoundly changed.

These are just about the sort of policies that other home secretaries may have adopted – and not only Conservative politicians.

What seems novel (at least to me) is the sheer glee which accompanies the announcement and promotion of each policy announcement.

One shudders to think what the current home secretary would do publicly if the office still have the power to (not) commute a death penalty.

And rhetorical change can have substantial consequences: each great office of state is subject to and can shape public expectations – that the chancellor, for example, can and will do things in respect of the economy generally, and with taxation and spending in particular.

The more the home office is loudly deployed as a vehicle for nasty policies, presumably the more the demand for more such policies.

And so the approach of the current home secretary cannot be written-off as just vile verbiage: it may and perhaps will lead to more repressive policies.

*

All this is an example of a more general problem with the current political arrangements of the United Kingdom.

The lack of political and constitutional self-restraint – and the removal of the gate-keepers.

There has never really been anything before – other than custom and decency – that has prevented a home secretary exploiting their office in this way.

Just as there was nothing which stopped the prime minister from using the prerogative powers in various unfortunate and unwise ways.

What the home secretary and some other ministers are now doing is showing openly what the constitution of the United Kingdom has long been capable of permitting.

And so what is demonstrated by this exercise of performative politics is not just the politics of the current home secretary – but that there is nothing in place that can prevent such things.

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Clause 59 and ‘TwitterJokeTrial’ – a warning from history

Spring Equinox, 2021

 

Some of those defending clause 59 of the Police, Crime, Sentencing, Courts and Anything Else the Government Can Get Away With Bill point out that one purpose of the provision is to set out in statute the old common law offence of public nuisance.

The view is that the enactment is merely an exercise in modernisation and simplification – that there is nothing for us to worry our heads about.

And as this blog has already explained, part of the origin of the proposal is a Law Commission report from 2015.

But.

There is a law more powerful than any statute or common law right, more powerful even than any great charter.

And that is the law of unintended consequences.

*

Here is a story.

There was once an obscure provision in the Post Office (Amendment Act) 1935 that, in turn, amended the Post Office Act 1908:

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.

This resulted in the once-famous TwitterJokeTrial case and its various appeals, which ended with a hearing before the lord chief justice.

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.)

*

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: 

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’.

*

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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‘Not giving the Home Secretary’s assessment the respect that it deserves’ – some initial thoughts on the Shamima Begum decision of the Supreme Court of the United Kingdom

26th February 2021

This morning the Supreme Court of the United Kingdom handed down its decision in the appeal case of Shamima Begum.

The judgment is detailed and lengthy, dealing with three distinct appeals, and is 137 paragraphs long.

With a decision of this scope and complexity one can only form indicative impressions on the day it is made public.

The decision will take time to digest and to comprehend.

But.

That said, and with the proviso that immediate impressions can often be dispelled, here are some views from the perspective of a liberal commentator on law and policy.

*

The first impression comes from the decision being unanimous.

This is not a judgment where some justices with a more liberal perspective have their say and their more conservative counterparts say something else.

A basis for a judgment was found to which all supreme court justices who heard the case was content to put their names.

This is similar to what happened in the second Miller case – on the prorogation of parliament – and on the Heathrow expansion case.

Perhaps it is a mere coincidence – but the supreme court is at now at least in the habit of putting on a united front in cases that (can be said to) involve issues of high policy and the public interest – even if it is not a deliberate policy.

This is no doubt sensible – if the judicial element of the state is to check and balance another element of the state (or to not check or balance another element of the state) then it is better for it not to be seen as something on which senior judges disagree between themselves.

It also perhaps indicates that there is more going on behind the scenes in seeking to obtain unanimous judgments, rather than a laissez-faire attitude of just publishing what each judge thinks.

*

The second impression is that, as well as being unanimous, the judgment is executive minded.

For example, here is how the court of appeal described the background of Begum:

But in contrast, in the supreme court judgment these same personal details – such as where Begum was born – are expressly presented from the perspective of the home secretary’s desk:

What we know about Begum in the supreme court judgment is expressly framed as being the content of a submission before the home secretary.

We are not directly told Begum was born in the United Kingdom other than that this is an incidental detail in an assessment on national security.

For the details of the individual to be put in such terms in a judgment in respect of their rights is not wrong, but it is quite the tell.

The supreme court judgment also starts in a robust, no-nonsense way about the home secretary’s decisive action:

Nothing rides on it, of course, but note how we are told that the home secretary is both a privy councillor and a member of parliament (gosh, fancy that) and nothing at all about Begum.

That the court is seeing things from the home secretary’s perspective is also perhaps indicated by an unfortunate choice of words at paragraph 134:

The court of appeal has been told off by the unanimous supreme court for not giving ‘the Home Secretary’s assessment the respect which it should have received’.

It is not only an unfortunate choice of words, it is also somewhat chilling in a court which is in effect the final guarantor of our basic rights and freedoms either under the common law, human rights law, or otherwise.

The job of the courts is not to ‘give respect’ to assessments of the home secretary – but to approach such determinations with anxious scrutiny.

Perhaps the use of words here is a slip – but one fears instead it is again a tell.

*

The third immediate impression is that it is a defeatist judgment.

The court of appeal found a compromise which balanced the rights of Begum with those of the executive.

It was an impressive and elegant judgment, and I did a video for the Financial Times:

The supreme court was to have none of this.

For the supreme court justices it is not the job of a court to indulge in such elaborate balancing exercises between the executive and the individual.

Instead, in such a dilemma, there is no judicial compromise:

Not every legal problem, it seems, has a neat legal solution – and the supreme court is averring that courts should not affect otherwise.

*

The overall first impression is that the supreme court has made a firm turn away from liberalism – liberalism being the general notion that the rights of the individual are to be balanced against those of the state.

(As opposed to the notion that the rights of either side will always trump the other.)

If this first impression is affirmed on careful examination of the judgment then the considered reaction will have to be one of disappointment.

For if the supreme court is taking an illiberal turn, then they will be failing – to invoke a phrase – to accord individuals the respect they deserve.

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Legal words v everyday words – how can the killing of six prisoners between the presidential election and inauguration not be a ‘cruel and unusual’ punishment?

27th January 2021

Over at Prospect my column this month is on the grim topic of capital punishment and how former President Trump revived federal executions in the last seven months of his presidency – for my article click and look here.

In this post today I want to expand on the issue I touch on in the introductory paragraphs of that article: what is a ‘cruel and unusual punishment’?

*

The reason this matters, of course, is the eighth amendment to the constitution of the United States, the relevant text of which provides: 

‘nor cruel and unusual punishments inflicted.’  

So if a punishment is cruel and unusual (and note it is ‘and’ and not ‘or’) then it is not only prohibited but also unconstitutional.

Some would contend (in my view rightly) that any use of the death sentence is, at least in modern times, a ‘cruel and unusual punishment’.

But here another part of the constitution is engaged.

The fifth amendment provides, among other things:

‘nor shall any person…be deprived of life, liberty, or property, without due process of law’.

This means that the constitution envisages that a person can be deprived of their life by process of law.

And as United States prosecutors, and supporters of the death penalty often point out, the fifth and the eighth amendments were adopted at the same time (as part of the bill of rights) and thereby should be read together.

Of course, there is a certain irony – cruel perhaps – that the fifth amendment was intended to have a generally liberal effect now has, in respect of capital punishment, an illiberal effect.

So the constitutional position is that capital punishment is permitted (fifth amendment) as long as it is not ‘cruel and unusual’ (eighth amendment).

*

In my Prospect column I argue, by the modern everyday meaning of the words ‘cruel’ and ‘unusual’, that the six executions after Trump was defeated and before the new President Joseph Biden was inaugurated were indeed unusual and cruel.

This argument has three bases.

First, once Trump was defeated it was plain that there would be a new president within weeks who was pledged to end federal executions.

And so if the executions did not take place by 20th January 2021 then the prisoner would not be killed.

They would still be alive today.

Second, federal executions are not usual

Indeed, before Trump there had not been any federal executions for seventeen years and, before then, only three executions since 1966.

Click and have a look at this table.

Of course, executions take place in individual states – though twenty-two states have abolished the death penalty and in a further thirteen states there is either a formal or an informal moratorium.

But at a federal level executions were not, between 1966 and 2020, usual.

And by definition, what is not usual is unusual. 

Third, these final six executions were (especially) cruel.

The prisoner – and those charged with killing the prisoner – knew that there was now a race against time.

This deliberate putting to death of a human being had to be done within days, if it was to be done at all.

The circumstances of the six executions after the election but before inauguration indeed amounted to the application of mental torture as part of the punishment.

*

But.

Although words have everyday meanings when those words are in a formal legal instrument, those words also have special legal meanings.

And the words ‘cruel’ and ‘unusual’ have been considered by the United States courts again and again.

Caselaw accumulates like barnacles on a shipwreck, so that little or nothing can now be seen of the original vessel.

The general position now is that whether a punishment is ‘cruel’ goes to the technique used at the point of death (and not the period leading to the execution), and if the punishment is still in use then it cannot be ‘unusual’ (which is fairly circular argument).

(The latest significant case in this grisly caselaw is here.)

What it is plain is that the wording of the constitutional prohibition is not autonomous – that it cannot be used in any given situation, free from the weight of caselaw.

A thing is only ‘cruel’ and/or ‘unusual’ if it accords with what these words mean as a matter of 230 years of caselaw, and not what those words mean in everyday discourse.

And this is both a merit and a flaw of placing rights in formal written instruments, such a a bill of rights.

On one hand, a person can point to the right and say with certainty that they have these fundamental protections; but on the other hand, formality can quickly become rigidity.

There is no easy solution to this problem of how one protects rights with a living, evolving legal instrument.

*

None of this is to aver that the executions between the election and the inauguration were unlawful and unconstitutional – the fact that the United States supreme court did not prevent those killings indicates that the punishments were lawful and constitutional.

Nor does this post contend that the constitutional law of the United States can easily be recast so as to render such executions as unlawful and unconstitutional.

The purpose of this post is to illustrate the gap between everyday language and precise legal terminology: that, in these instances, things that are plainly cruel and usual are not ‘cruel and unusual’.

This leads to the wider point about using the law to guarantee rights and freedoms: a general legal instrument quickly attracts caselaw, and that caselaw scopes and often limits the meaning of that instrument.

And so one can end up with the vile spectacle of six human beings being deliberately slaughtered before 20th January 2021 because they would be safe from slaughter if they managed to live beyond that date, and that this horrific episode was, as a matter of law, neither cruel nor unusual.

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The reluctance of the Home Office to deny publicly that it is reconsidering the restoration of the death penalty – an example of government-media relations

15th January 2021

On 25th December 2020, of all days, the following was tweeted:

There are three immediate things to observe about this tweet.

First, the content.

This is a sensational claim but it is one which, for some people, would seem plausible.

The home secretary is a past supporter of the death penalty and the home secretary is also known as being willing to use home office policy on ‘law and order’ in a politicised way.

And elsewhere the United States has resumed federal executions in the run-up to a presidential election, and the similarly populist government of Turkey has signalled that it would want to reintroduce capital punishment.

Second, the provenance.

The account is anonymous but it does have a reasonably sized following, including followers from many areas of law and the media.

The account does not link to a site for the organisation named, and nor does a Google search indicate that the organisation has any existence beyond that twitter account.

We therefore do not know who the “us” is in the tweet and how much credibility their claim should have.

As such the claim cannot and should not be accepted without corroboration.

(This is not to diss the named organisation and what they campaign for, but is just a normal exercise in fact-checking.)

Third, the circulation of thee tweet.

As of today, the tweet has had an extraordinarily wide circulation.

It has had around 1,800 retweets and 1,900 quote-tweets – often from accounts that have accepted the claim in the tweet to be true or at least plausible.

This means a considerable number of people will now believe that the claim is correct or at least has some substance to it: that the home secretary has asked civil servants at the home office to scope a policy paper on the restoration of the death penalty.

(I do not have access to the tweet’s analytics, but in my experience, such a widely circulated tweet would have been seen by over one hundred thousand and possibly up to a million other twitter users – for that is the multiplying effect of thousands of retweets and quote-tweets.)

At this stage, now click on and read this magnificent post by Matthew Scott on the legal and practical difficulties of such a restoration of the death penalty, including the range of international legal instruments that prohibit such a restoration by the United Kingdom.

In essence: the United Kingdom could, in principle, restore the death penalty – it is a sovereign nation – but it would be in breach of many international agreements if it did so.

*

So either the claim is true – which would be important for us to know – or it is untrue – and, in view of the extraordinarily wide circulation of the tweet, it would be also important for the false claim to be publicly corrected.

(In saying that the claim may be untrue, this again is not to diss the account that tweeted – they may be only as good as their source, and it is possible they heard this from a‘little bird’ in good faith.)

I happen to be in the process of preparing and writing a few things at different titles (and here on this blog) that touch on populism and the use (and misuse and abuse) of law.

I had seen the tweet several times in quote tweets, and so my first step was to find out whether there was any other relevant information in the public domain.

 

There was none.

And so it seemed that the claim should be put to the home office to ascertain whether it was true.

My email query was:

“There is a widely circulated assertion that the Home Secretary has asked Civil Service to scope a policy paper on the restoration of the death penalty – source: https://twitter.com/BameFor/status/1342495556732649478 

Can I please have a Home Office statement on this? Normally, and view of UK’s international obligations, one would expect a straight denial, without equivocation.”

*

At this stage, I expected to just get an email containing either a bland denial that the claim was untrue or perhaps an equally bland if evasive statement about not commenting on tweets.

What happened instead was a telephone call where I was told that the claim was ‘rubbish’.

Now ‘rubbish’ is one of those press officer words – like ‘nonsense’ and ‘ridiculous’ – that is used instead of a straight denial such as ‘incorrect’.

And any telephone call from a press office is rarely about providing information (that is what emails are for), it is about the press office trying to obtain information about what is to be published and then attempting to shape what is published – and not published.

It was quickly plain that the home office did not want anything published on this at all, notwithstanding the wide circulation of the original tweet.

So I asked for a statement in writing (I never take quotes over the telephone, especially not from government press offices).

The press office’s response to this request was to question its journalistic value (although one would think that a journalist is in a better place than a press office than to make that assessment).

Given the significance and the circulation of the original claim, it seemed to me that there should be a home office statement on the record.

Indeed, you would expect that the home office would be proud and open in stating that the United Kingdom was complying with its international obligations.

*

Later yesterday afternoon a statement was emailed:

“This is a completely untrue and unsubstantiated claim from an unverified Twitter account. We are surprised that despite telling [you] this, [you] are still insisting on reporting it.”

The references ‘[you]’ in the statement is to the title they assumed would publish the statement.

The statement is worth unpacking.

The explicit reference to ‘despite telling [you] this’ placed beyond doubt that the telephone conversation was not ‘background’ – the public statement only makes sense if the previous conversation was also on the record.

The ‘completely’ and ‘unsubstantiated’ are both examples of over-emphasis – if the claim is untrue, then that is all that needs to be said.

(Like a politician who says ‘absolutely clear’ instead of ‘clear’, such additional words indicate potential evasion and misdirection.)

The denial is limited to the content and detail of the tweet – there is no general statement such as ‘the home office will not be restoring capital punishment’ and still less ‘the home office is proud to respect and comply with the international obligations of the United Kingdom’

Instead of such statements, there is an explicit attack on the credibility of the source and an implicit attack on the journalistic point of even putting this claim to the home office.

The ‘insisting’ is a perfect touch – and yes, one should insist that the home office should publicly state its position on restoring capital punishment when there is widely circulated claim that such restoration is being considered.

The home office wanted the statement to either be unusable or, if published, to discredit the news title publishing the story.

(I am happy to publish the public statement here, with the appropriate context set out.)

All this, instead of a simple statement that the claim was untrue and a statement that the home office is not seeking to reintroduce capital punishment and the United kingdom will comply with its international obligations.

*

There is nothing special about what happened here – this is what happens every day between government press offices and anyone in the media seeking to obtain information which the government does not want to publish.

The only difference is that I am in a position to set out the exchange on this blog.

It is a good thing that, despite their initial reluctance, the home office was able to publicly confirm that a widely circulated claim that restoration of the death penalty was “completely untrue and unsubstantiated”.

It is disappointing that the home office sought to do this with a quote intended to deter the use of the quote and thereby prevent any coverage of that denial.

And it is disappointing, but not surprising, that despite the public interest in such a widely circulated claim being openly denied, the home office insisted on going about it in this way instead.

*****

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The violent events of 6th January 2021 should be a turning-point, but what if history fails to turn?

12th January 2021

 

Writing of the effects (and lack of effects) of the 1848 ‘revolution’ in Germany, the historian A. J. P. Taylor once wrote:

‘German history reached its turning-point and failed to turn.’

Identifying a moment in time as a potential turning-point is one thing, but it is quite another for it to actually be a turning-point.

*

Take, for example, seven days before the 2016 referendum when the British member of parliament Jo Cox was murdered by a person shouting ‘Britain First’.

That incident which took place at the most unpleasant moment of the referendum campaign – the ‘swamped’ poster was about the same time – felt as if it should have been a turning-point. 

That the passions and indeed frenzy unleashed by the referendum campaign were out of control, that things had gone too far.

But it was not a turning-point – the referendum campaign quickly resumed – and the murder had no obvious impact.

*

The events in the United States of 6th January 2021 also seem to be a potential turning-point.

In what this blog and others aver was an attempted coup, and what was an insurrection on any view, there was a violent attempt to disrupt an essential constitutional step in the peaceful transfer of power, at the behest of (or at least in the interests of) a defeated politician.

Five people died.

There is currently an attempt, in the last few days of the current presidency to impeach that defeated candidate, President Donald Trump.

At the moment it looks unlikely that the impeachment will result in a conviction in the Senate and that Trump will be removed from office before 20th January 2021, when the presidential term ends by automatic operation of law.

One view is that the events of 6th January 2021 will shock Republican politicians and political supporters of Trump.

That the passions and indeed frenzy unleashed by his attempt to discredit the election result and to hold on to power were out of control, that things had gone too far.

Surely something will be done in response to what happened, in what Der Spiegel regards as a putsch (with Trump as Putschistenführer).

 *

But even if something decisive happens in respect of Trump personally – either that he is impeached or discredited as an individual – this does not directly address the ongoing challenge of Trumpism.

Even after everything in the last four years, 74 million Americans still voted for him to be president.

Indeed, even after the visible manifestation of Trumpism on 6th January 2021, there still seems to be substantial political support for this nationalist authoritarian populism. 

It may not be going away.

*

Contemporaries are often not in a good position to tell whether some dramatic political event is either the end of something, or the start of something, or just an illustration of something.

The quotes in this tweet should be read carefully and in full.

In 1923 many thought that the attempted putsch of the war hero Ludendorff (then a more famous figure than the nationalist authoritarian populist leader who accompanied and then succeeded him) could be dismissed as some delayed after-effect of the great war.

And indeed Ludendorff was to a large extent personally discredited, but the cause for what he stood for certainly was not extinguished, and it was to take power within a decade.

An attempted coup, an insurrection, a putsch – all can be as much a start of something than an end of something.

*

It is easy to warn ‘we should not be complacent’.

(After all, nobody ever says ‘let us be complacent’.)

But liberals and progressives should be careful not to assume that the dramatic violence of 6th January 2021 will convert into some ongoing impediment to Trumpism – even if it converts into an impediment to Trump himself.

Trumpism should be taken just as seriously as a threat to liberal democracy and constitutionalism after 6th January 2021 than before.

The attempted coup, the insurrection, the putsch has not, at a stroke, discredited Trumpism – even if Trump (like Ludendorff) may no longer be the leader of the movement.

All because a tragic event should bring people to their senses, it just as often does not do so.

Sometimes things do meet what should be their turning-point, but things fail to turn.

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Can a presidential pardon be revoked?

11th January 2021

As we enter the last ten days of this presidential term one of the matters being widely discussed is the extent and nature of presidential pardons generally, and the possibility of a ‘self-pardon’ in particular. 

This blog has already looked at the general issue – and on the self-pardon issue in particular, it seems to me to be a logical and legal absurdity.

But this post is about a related issue, which has not yet featured prominently in the debate about pardons: regardless of whether any power to pardon, can a pardon be revoked?

Would it be open to an incoming president to revoke the pardons of President Trump, including any (purported) self-pardon?

*

From first principles, and from a United Kingdom perspective, such a revocation would seem possible.

The power to pardon is, in the United Kingdom, part of the royal prerogative.

And just as no parliament can bind another, it would appear no sovereign can do so either.

The crown can make – and unmake – any treaty whatsoever.

The crown can bestow honours, which in turn can be ‘cancelled and annulled’ by the crown.

And so if these exercises of the royal prerogative are analogous, then it would appear that the sovereign could rescind a pardon – for example if it were wrongly made.

*

Turning to the United States, there are two examples of revoked presidential pardons.

In 1869, we are told by the Congressional Research Service, ‘after outgoing President Andrew Johnson issued but did not deliver a pardon, incoming President Ulysses S. Grant revoked the pardon, and a federal court upheld the revocation’.

The case report is here, where you will see that the judge stated in passing:

The law undoubtedly is, that when a pardon is complete, there is no power to revoke it, any more than there is power to revoke any other completed act.’

More recently, in 2008 President George W. Bush revoked a pardon he had himself granted, because of an outcry.

The New York Times then reported ‘when Mr. Bush granted Isaac Toussie, 37, a pardon earlier this week, the president and his advisers were unaware that the elder Mr. Toussie had recently donated $30,800 to Republicans. Mr. Bush took the extraordinary step of rescinding the pardon on Wednesday after reports about the political contributions.’

Again, the pardon had not been delivered.

*

In both of these precedents the revocation was possible because it had not been completed – the procedural equivalent of dashing to the post room to intercept a letter before it is actually sent out.

Neither of these precedents therefore are directly on the point of whether a pardon, once completed, can be revoked.

The opinion of the judge in 1869 is not binding for, among other things, that was not the issue which the court was being asked to determine.

*

So how would a modern court approach the issue?

In most circumstances, the effect of a pardon would be immediate: a person would be released from their sentence and so on.

And once that person has been relieved from their punishment, then any revocation would raise practical and other issues as to what would happen to the pardoned person.

One can see why it would be unfair that such a pardon was revoked, just as no person should not be punished twice for the same offence.

But what about a (blanket) pardon that is intended to pre-empt any possible prosecution?

Procedurally, the person who (purportedly) received the pardon would (presumably) raise the pardon as a bar to any proceedings.

The court would then (again presumably) examine the (purported) pardon (as in 1869), and if the pardon was valid then there would be would be a bar on the prosecution.

It would be – almost literally – a ‘get out of jail free’ card, which the person would raise in front of a judge.

(Of course, if it were known that a pardon had been given then a prosecution would normally not be brought in the first place – but, if it were brought, this is procedurally how a pardon would act as a bar on any prosecution.)

So, now imagine two fascinating possibilities.

First, imagine a court not accepting such a presented pardon at face value – and applying anxious scrutiny whether such a pardon (even if correct in form) had been within the powers of the president.

And second, imagine a court presented with two formal instruments – one purporting to grant a pardon, and another purporting to rescind it (like the cancellation and annulment of an honour, which reverses an otherwise completed act).

The first of these (delicious) legal puzzles would not be a revocation, of course, but an inquiry as to the legality of an instrument.

The second possibility, however, would require a court to review the possibility of a revocation of a pardon.

We would then see whether the 1869 dictum was a correct statement of the law.

*

The straight answer to the question at the head of the post is, as always with interesting legal questions, ‘we do not know’.

An approach from first principles points (at least for me) in one direction, but the precedent of 1869 (although it is not binding) points firmly in the other direction.

But given the lack of binding authority, it cannot be assumed casually that if a pardon – or self-pardon – is granted by President Trump that it is absolutely beyond the reach of revocation.

We may still get more constitutional excitement from the Trump presidency.

*****

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Impeachment exists for a reason – the arguments for and against the second impeachment of Donald Trump

9th January 2021

‘Impeachment’ and ‘indictment’ are sister words, sharing the suffix ‘-ment’, and they describe two ways by which a person can be tried and then either convicted or acquitted.

One practical difference (at least in modern times) between the two is that impeachment is usually a political process, while a trial on indictment is a matter of criminal law.

And one effect of this distinction is that if a sitting president of the United States is immune from prosecution in the criminal courts, there is always the alternative route of impeachment.

*

There are only eleven days before this presidential term ends, by automatic operation of law, on 20th January 2021.

The electoral college vote has been certified by congress and so there is no constitutional impediment (as far as this English lawyer is aware) to Joseph Biden becoming president on that day.

The question is whether Donald Trump should continue to be president in the meantime, given what he did and what happened on 6th January 2021.

As eleven days is such a short period, there is merit in the view that we should just wait it out – especially as he no longer has access to his Twitter platform (and the implications of such a ban was discussed on this blog yesterday) and the speaker of the house of representatives has has assurances on the president’s access to the nuclear codes.

And there is something also to be said that it would still be wrong, even now, to in effect override the result of the 2016 election – there was a democratic process and Trump as president was the result at the end of it.

*

But.

Impeachment exists in the United States constitution for a reason.

And if a president inciting a mob to invade Congress so as to disrupt the certification of the electoral college vote (in what this blog avers was an attempted coup) does not fulfil the requirement of a high crime and misdemeanour, then it is difficult to imagine what else would do so.

Even with only eleven days to go, such an extraordinary event should not go unmarked and shrugged-off.

Impeachment and conviction can also disqualify Trump from holding office again.

(And so, in respect of the presidency, such disqualification would place Trump in the same position as if he had not been born in the United States.)

On this basis there is a strong – if not compelling – case that Trump should be impeached and convicted – both in terms of what has happened and of the future.

*

Yet.

You do not sustainably solve a problem caused by hyper-partisanship with more partisanship.

And so any impeachment and conviction should ideally be on a genuinely non-partisan basis – and not just the Democratic bloc with a few Republicans.

Here the United States constitution is helpful – as a conviction by the senate has to be with the ‘concurrence of two thirds of the members present’.

Therefore there would have to be a substantial number of Republican senators in favour – but even if there were sixteen or so such Republican senators, it would still savour of partisanship, unless the Republican congressional leadership were also in favour of conviction.

This is not to say that there should not be an impeachment and conviction if enough Republican senators are in favour – sometimes you just have to do the right thing anyway – but a warning that such an exercise will not be the once-and-for-all end of the problem of Trump and Trumpism.

But, then again, there may not be any solution to that problem.

*

There is another way that could be employed to displace Trump.

The twenty-fifth amendment provides an elaborate mechanism by which the vice president and members of the cabinet can declare that the president is unable to discharge the powers and duties of the office.

In these circumstances the vice president will become the acting president.

This approach has the attraction of being inherently non-partisan – as those making the decision are Republican politicians – and also the attraction of pragmatism – as it deftly yanks Trump away from exercising the powers of the president.

The problem, however, is that it is not – at least not directly – a mark against the encouragement of the attempted coup, and nor does it disqualify him from future office.

(Or Trump could – like Nixon – just resign in an attempt to pre-empt any of the above – but it is hard to imagine Trump bringing himself to sign that piece of paper.)

*

Of course, whatever does happen will then look as if it were inevitable all along.

But whether or not Trump is impeached and convicted, there will still be two truths.

First, impeachment is there for a reason.

And second, what the president did on 6th January is such a reason.

*****

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