Hard questions for liberal sensibilities – the play White Noise and its implications

10th October 2021

*Spoiler warning for the play White Noise*

In the play White Noise – currently showing at the Bridge Theatre in London – there is what the programme calls ‘an extreme proposition’.

This blogpost is about that ‘extreme proposition’ – and please only read on if you have seen the play or do not mind the key plot point being spoiled.

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*Spoiler warning for the play White Noise*

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In the play, set in America, the black male character, an artist, proposes to sell himself into temporary slavery to the white male character, a (supposedly) liberal professor.

The play then shows how that transaction affects all involved.

For the liberal professor, for example, slave ownership seems to come naturally, and he swiftly adapts to exercising the ‘rights’ of a slave owner.

Indeed, all four characters swiftly – and convincingly – adapt.

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Watching this play unfold prompted a number of thoughts and recollections.

One was this recent tweet:

https://twitter.com/TweetsByBilal/status/1445681197317689351

The second was reading about the (in)famous Stanford prison experiments and the Milgram experiment where it it appears a number of individuals also adapted quickly to behaviours that were cruel.

The third was an insightful comment by the philosopher Richard Rorty about Nineteen Eighty-four: that the last third of the book makes sense if you see it as not about Winston Smith, but about O’Brien – from the perspective of the torturer, not the tortured.

The fourth was a comment I once heard attributed to another philosopher, Isaiah Berlin, that the most difficult question to put to many British people was whether they would have collaborated with a Nazi occupation.

The fifth was to the valuable work of David Olusoga and others in highlighting how prevalent and routine slave ownership was in the United Kingdom until the 1830s:

And the last thought was about my recent posts on slavery and the lawyers – about how lawyers and other professionals and business people casually provided the infrastructure for the slave trade and widespread slave ownership:

https://twitter.com/davidallengreen/status/1271696745836228608

https://twitter.com/davidallengreen/status/1272069550746546176

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What the play shows is the ease with which notions of slave ownership – and attendant cruelty – can be revived in a contemporary setting.

One of the other characters – a white lawyer – does not prevent this transaction – and indeed her law firm provides a deed of transaction for the parties to sign.

Whether such a transaction would be void under the United States constitution or by reason of public policy is not tested.

For the parties, it is enough that the deed does provide for legal rights and obligations.

The solemn formal legal document says a thing, and so the parties regulate their conduct accordingly.

And, far from the transaction being voided by the law, the play suggests that the police are more respectful of the ‘slave’ – for he is now the property of a white person, and so under his protection.

The law adapts, the law recognises, the law provides.

And so one of the many disturbing points about this extraordinary play is – in addition to the effects on the characters – is the plausibility about how the law – both in terms of the law of property and policing – would let this happen.

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Back in August this blog had a post setting out other areas where the law and lawyers facilitated and facilitate a range of horrible situations.

We are always only a step or two away from the law being there to enable cruelty – indeed, there are many areas of human activity from interrogation and prisons to the treatment of animals – where dreadful things happen out of sight and out of mind, with the full protection of law.

Civil liberties and human rights and humane treatment are all fragile standards.

It is not only ‘other’ people who will clap and cheer at humans being systemically inhumane.

It is not only ‘other’ people who will just carry on with a shrug and without a care at humans being systemically inhumane.

For most of us it will only be noise.

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What if…there had not been a Brexit referendum in 2016?

9th October 2021

Currently on Disney+ is a series of animated programmes exploring what would happen if some point or other was changed in the Marvel Cinematic Universe.

Of course: when the source material is itself fantasy, the point of speculating about the effects of any changes can only be of limited import – just one fiction instead of another fiction.

With the real world, on the other hand, such counterfactuals at least start with what are understood to be facts.

And so: what if there had not been a referendum in 2016?

Presumably the Conservative government elected in 2015 would have stayed in office until 2020.

And presumably the Greek debt crisis and the migration crisis would have been unaffected.

Politically, however, there is no reason to believe that the rise in Ukip support would have abated.

And so all may have happened is that there would have been substantial Ukip gains in the 2020 general election – especially if the Conservatives were seen to have reneged on their manifesto commitment of holding a referendum.

If so, there might have just been a referendum in 2021 instead.

An alternative counterfactual is if the Conservatives had not promised a referendum in 2015 – but similarly that would have meant Ukip gains at that general election instead, with a referendum to follow.

The hard political truth may be that, by 2015 and the Ukip gains, a referendum on European Union membership was likely to take place.

Less obvious, however, is how events would have unfolded had Remain won the referendum – or if, in 2019, the parliamentary stalemate had been broken by a government of national unity proposing a further referendum that Remain could have won.

These – 2016 and 2019 – were the two political moments that Remain could have ‘won’ – not be refusing a referendum, but by winning that (or a further) referendum instead.

It was not so much that Leave won the referendum but that Remain lost (and then, in 2019, lost again).

And that did not need to happen.

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Changing my mind about animal rights

8th October 2021

Once I did not think animals should have rights.

To the extent I had any view on the subject, my view was that ‘animals don’t have rights, but humans have responsibilities’.

After all: how could an animal have rights if an animal could not enforce them?

But.

The more I thought about it, the more that view just did not add up.

Lots of humans have rights that have to be enforced on their behalf – minors and the incapacitated, for example.

Even things that do not actually exist in physical form have rights and legal personality – corporations for example.

And so the fact that animals could not enforce their own rights was not a reason to deny them rights.

Then, as I looked at animal welfare law in the United Kingdom – a complex sprawling mess of legislation with arbitrary distinctions between species and various levels of protection (and lack of protection), and with varying degrees of enforcement (and lack of enforcement), it seemed to me that it would be far better if the whole thing was replaced with a single Animals Act (like the Children Act).

And if so, then the basis of the legislation should be that all animals have rights – not just the lucky ones.

Not necessarily absolute rights – but then again few human rights are absolute.

But that regard would have to be had to these rights by government and the courts.

And so, with with this change-of-mind, I wrote a column in this month’s Prospect – go and read it here.

Please let me have any comments below – and I will respond when I can.

Understanding the hostility to the Human Rights Act – and why this matters

7th October 2021

This week the lord chancellor and justice secretary – in 2021 – had to resort to a 2009 case – where the law had already changed in 2014 – to support his demand for an ‘overhaul’ of the Human Rights Act 1998.

That was telling.

Those opposed to the Act often seem to find it difficult to find topical examples of cases to substantiate their disdain.

Some resort to blaming cats (and I am not making this up).

And so, if it is not the actual substance of cases under the Act that explains the antipathy to the legislation, what is the explanation?

What are the actual reasons why the Human Rights Act 1998 is so hated?

I think there are four reasons.

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The first reason is its very title and its express mention of ‘human rights’.

For many this title seems alien – and provocative.

It is as if ‘human rights concerns’ are something you tell off foreigners about, rather than it being something that is of any domestic relevance.

The view seems to be that there is no need for ‘human rights’ in regard of the United Kingdom – for we have liberties.

This is, of course, misconceived – both in theory and practice.

In theory – because we have an executive under little or no day-to-day scrutiny, where state officials have unlimited power, and where the legislature has absolute power to make or unmake any law.

And in practice – taking torture, for example, there are documented examples of torture and inhuman treatment by United Kingdom agents in Northern Ireland, Afghanistan, Kenya, and elsewhere.

But we pretend that the United Kingdom is not like that – that we are always the good guys.

Yet the United Kingdom and its agents are as capable – both in theory and practice – of human rights abuses as in any other state.

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The second reason is that the rights that the are given effect by the Human Rights Act are (seen as) ‘European’.

This is a similar sentiment to the hostility to the European Union that contributed to Brexit.

And it is the ‘E’ word that seems to make all the difference.

The United Kingdom has human rights obligations under various United Nations instruments, and few know and fewer care.

We are also subject to fundamental obligations as members of international organisations such as NATO and the World Trade Organisation.

And those who jeer at the ‘E’ word will somehow be horrified at suggestions that the United Kingdom renege on its obligations under NATO and the World Trade Organisation, even if they limit our autonomy in defence and trade matters respectively.

The European Convention on Human Rights (ECHR), however, could not – for some – be more provocatively named.

Had it been called, say, the British convention – and many treaties are named after places – or the Winston Churchill convention, after one of the politicians who supported it – then, at a stroke, the regime would be less contentious.

That the the rights are seen as ‘European’ is, of course, a misconception.

The ECHR instead was formulated in part by British lawyers seeking to codify for post-war European what they perceived to be rights existing in our domestic law.

Had it been called the British convention or the Winston Churchill convention, it would not have been that misleading, given the United Kingdom’s contribution.

But instead the ECHR provisions – and thereby the Human Rights Act – are European.

‘Ugh.’

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The third reason is that the Human Rights provides rights for humans, including the humans many do not like.

The rights are not only for nice people but also for the Other: the people who are so bad or undesirable that many believe that they should be treated inhumanely.

For example: foreign criminals, domestic criminals, asylum seekers, and so on.

Why should these people have rights?

The sentiment is that such people should not have rights, because they don’t deserve them, or that they have forfeited them.

But that is the nature of human rights: you have them because you are a human.

But if the Other use their rights, then that ‘use’ is instantly converted to ‘abuse’.

You may ‘use’ your rights, but they – they ‘abuse’ their rights.

The notion is that those facing the coercive powers of the state – say incarceration or being separated from their families – should smile and nod along with that coercion, and certainly should not interrupt clapping and cheering those being coercive.

But it those who are facing the coercion of the state, especially those where there is no public sympathy, who are most in need of human rights.

If you think about it.

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The fourth reason is about the failure of the Human Rights Act to get ‘buy-in’ from certain media and political groups since its enactment.

Here there is a contrast with, for example, the United States – say if a citizen did not like a particular right in the Bill of Rights (for example, the right to bear arms), that citizen would be unlikely to be in favour of repealing the entire Bill of Rights.

But in the United Kingdom there are many who do not see that the rights in the Human Rights Act protect them as well as the Other.

And part of this is – in my view – the fault of the courts themselves.

After the Act took effect, the courts moved rapidly to ‘develop’ (that is, invent) a new tort of privacy.

A right that was enforced in cases against the media.

But the corresponding right of free expression enjoyed no similar ‘development’ – and over twenty years later, it is difficult to cite a case where the right to free expression has made a difference, let alone led to the ‘development’ of the law.

No United Kingdom journalist, unlike their American counterparts, would ever think to assert loudly and proudly their legal right under Article 10 to free expression.

Had the British courts made Article 10 (free expression) as meaningful as Article 8 (privacy) then the British press would be as horrified at the prospect of repeal of the Human Rights Act as the American media would be at the repeal of the entire Bill of Rights, including the right to a free press.

The populist media of the United Kingdom are not aware that the ECHR and the Human Rights Act protects (or should protect) them as well as the subjects of their coverage.

If the Article 10 right of free expression had been taken half-as-seriously by British judges as the Article 8 right to privacy, one suspects no politician would dare suggest ‘overhauling’ the Human Rights Act as a whole, let alone its repeal.

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As this blog recently averred, at the heart of the issue of the Human Rights Act is symbolism, not substance, and for both ‘sides’.

The Act does not actually do a great deal, but it does enough to make a difference in certain situations.

But the main reason for its repeal (or ‘overhaul’) seems to be the sheer symbolic value in doing so, and the main reason to oppose such moves is the equal-and-opposite sheer symbolic value in preventing those moves.

And so the Act is caught up in political and media battles that have little or no connection to the Act’s actual legal significance.

It is almost as if the Human Rights Act in the political and media imagination has an autonomous existence, distinct from the actual legislation and what that legislation does.

But.

There is a problem here.

A real problem, which sensible liberals should not ignore.

Some legislation – for example, equalities law – can start off controversial but will become less controversial as the years go by.

Laws such as the Race Relations Act were – believe it or not – controversial at the time.

The Human Rights Act – twenty-one years after it took effect  – remains controversial and – in good part – unloved.

It has not simply become embedded as part of the political consensus.

And that is a failure.

A failure that cannot be wished away.

So there is a question for all sensible people, who support human rights in general and the ECHR in particular: are there better ways of protecting these substantive rights than by the Human Rights Act?

For it is those substantive rights, and their availability to those who need to use those rights, that are the important things, and not their legal form.

The Human Rights Act 1998 is still not a popular piece of legislation in 2021, and unless those who value human rights think constructively about other ways of enforcing those same rights, there will be a risk that the Act and the rights it provides for will all topple together.

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Was Dominic Raab, the justice secretary, aware that the law had already changed when he made his conference speech?

6th October 2021

Yesterday Dominic Raab, the Justice Secretary and Lord Chancellor, made a speech to Conservative party conference.

In that speech, as this blog described yesterday, he cited a 2009 immigration decision as the reason why where needed to be an ‘overhaul’ in 2021 of the Human Rights Act 1998.

This 2009 decision – which was upheld on appeal in 2011 on technical grounds – was (as Adam Wagner has identified) used in a speech of that year by Theresa May, the then Home Secretary:

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But the problem with using this case in a 2021 speech in favour of ‘overhauling’ the Human Rights Act 1998 is that the relevant law changed in 2014.

So: was the justice secretary aware that the law had been changed when he made the speech?

Or was the case used by him (or his speechwriter) without checking whether the law had changed?

I asked the press office of the Ministry of Justice but they could only refer it to the minister’s political advisors, as this was a political speech, not a ministerial speech.

(Which is fair enough.)

I was then contacted by (and I use journalistic convention) ‘sources close to the justice secretary’.

Here it was confirmed that the case alluded to was indeed the 2009 decision.

But I pressed on whether, at the time the secretary of state made the speech, he was aware that the relevant law had changed?

I was then told by ‘sources close to the justice secretary’:

– the Immigration Act 2014 was ‘a step forward’, but that it focused on foreign national offenders serving sentences of four years or more – which left out a large number of less serious offenders (and in the 2009 case the sentence had been 18 months); and

– the 2014 Act also introduced an ‘elastic balancing test’ which the courts apply relying on longstanding case-law, rather than making clear the overwhelming public interest in deportation.

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But.

Neither of these two propositions are correct.

The 2014 changes expressly provide: ‘The deportation of foreign criminals is in the public interest’.

That is, all foreign criminals.

So the 2014 law did makes ‘clear’ that deportations of foreign criminals are in the public interest.

This would apply to the 2009 case.

The changes also expressly provide: ‘The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.’

Again, this applies to all foreign criminals – and not just those with sentences higher than four years.

This also would apply to the 2009 case.

The additional provisions on those with four-year sentences provide that, subject to exceptions such as the person having ‘a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of deportation on the partner or child would be unduly harsh’, there will be a deportation.

But even those deportations are subject to exceptions.

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This more detailed  response from ‘sources close to the justice secretary’ did not answer my question of whether the justice secretary had been aware of the 2014 legal changes, and it appeared to me that this exposition had been mugged-up after the speech.

However, when pressed a third time, I was finally told that the justice secretary had indeed been aware of the 2014 legal changes when he made his speech.

Taking this eventual confirmation at face value then it appears that the justice secretary does not understand the effect of the 2014 legal changes.

The 2014 legal changes made expressly ‘clear’ that ‘the deportation of foreign criminals is in the public interest’ and the ‘more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal’.

So there are either two explanations.

Either: contrary to he assurance of ‘sources close to the justice secretary’ the justice secretary had not actually known the law relating to the 2009 case had changed (and this cannot be admitted).

Or: if he did know of the 2014 changes, the justice secretary had not understood that his 2009 example case had been overtaken by the law.

But what cannot be the case is that the justice secretary both knew and understood that the law had changed in 2014 in respect of the 2009 decision that he is citing as the reason why the Human Rights Act needs to be ‘overhauled’ in 2021.

(And, finally, if there was a need to make changes in this area, those presumably would be in respect of immigration legislation – a Home Office responsibility – rather than the Human Rights Act itself.)

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“We will overhaul the Human Rights Act” – What this means, and why the case cited by Raab for doing so may not be a sound example

5th October 2021

Conference season: the time of year where it is customary for Conservative politicians to declare their attacks on the Human Rights Act 1998.

This year it is the turn of the new Lord Chancellor and Justice Secretary Dominic Raab.

Here is his conference speech this morning.

You will see the speech does not even mention legal aid.

But you will also see, right at the end (and thereby just before the expected applause) the following:

“And there’s one other big change the public want to see.

“Too often they see dangerous criminals abusing human rights laws.

“In one case, a drug dealer convicted of beating his ex-partner,

“A man who hadn’t paid maintenance for his daughter,

“Then successfully claimed the right to family life to avoid deportation.

“Conference, it is absolutely perverse that someone guilty of domestic abuse could claim the right to family life to trump the public’s interest in deporting him from this country.

“We’ve got to bring this nonsense to an end.

“So, today I can tell you that, under this Prime Minister and before the next election,

“We will overhaul the Human Rights Act

“To end this kind of abuse and restore some common sense to our justice system.”

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So: “overhaul”.

You would think that, with the current transport chaos, government ministers would avoid haulage metaphors – but no, Raab goes straight in.

But.

Why was that word chosen instead of another word “repeal”?

Could it be that he has realised that the time and effort involved in repealing this legislation, and the fact that at least in Northern Ireland it would have to be replaced with identical legislation under the Good Friday Agreement, means that repeal would not be worth it?

And what is an overhaul?

Perhaps he is waiting for the report of the Gross committee.

But on any view, an overhaul suggests something less than outright repeal – and it may mean very little indeed.

Of course: repeal cannot be ruled out – and this government has done dafter, more illiberal things.

But today Raab chose not to announce repeal, but to say something less.

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And what of this case he cites?

“In one case, a drug dealer convicted of beating his ex-partner,

“A man who hadn’t paid maintenance for his daughter,

“Then successfully claimed the right to family life to avoid deportation.”

It appears to be a reference to this case – and, if so, it is to a decision from 2009.

A decision twelve years old, and from before the current government.

It is not even a recent case.

Furthermore, a significant change in the law in 2014 already provides for how courts should approach such Article 8 family life cases.

So not only is not a recent case, it may be that the issue identified by Raab in his speech has already been addressed.

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If that is the case on which Raab relies then he has hardly made out that ‘overhaul’ is urgent.

Of course: facts and citations do not matter – this is politics, and not law.

One can quite imagine the Human Rights Act 2000 being repealed just for the symbolic sake of it – even if parts of it then have to be reenacted under another less-provocative name.

But.

The ministry of justice only has limited resources and a limited claim on the legislative timetable.

There are many other – higher – priorities for a justice secretary, some of which he mentioned in his speech.

A symbolic ‘overhaul’ will probably be all that can be managed – and may not even have a bill to itself.

Supporters of the Human Rights Act must always be vigilant – but the blast of the repeal trumpet today was not a loud one.

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All because you ‘trigger’ Article 16 that does not make it a gun

4th October 2021

Another Monday, and another week begins with the government of the United Kingdom saying that it going to do something to show how serious it is about the Northern Irish protocol.

And David Frost, the Brexit minister, is again threatening to ‘trigger’ Article 16.

He may well do so, for this government has done dafter things in respect of Brexit and other matters.

But, as this blog has previously averred, if you actually look at what Article 16 says, you will see that it does not expressly provide for the suspension of the protocol.

It instead provides for a process – slow and deliberate – where the parties to the protocol can discuss measures fulfilling certain strict conditions, with the objective of ‘safeguarding’ the protocol.

Article 16 is not much of weapon.

All because you trigger Article 16 that does not make it a gun.

Maybe the European Union and the United Kingdom will do a deal under the cover of the Article 16 process.

Maybe; maybe not.

But the process in and of itself is not something that is intended to disrupt, let alone dismantle, the protocol.

Article 16 is more of a bicycle repair kit than a Beretta handgun.

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And what if Article 16 happens and the United Kingdom – either by law or politics – does not get the deal it is seeking?

What is the United Kingdom to do?

Threaten to trigger Article 16 a second time?

Or a third?

What if Frost’s bluff is called – and (yet again) he does not achieve what he is seeking to achieve?

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The one useful experience that is coming out of this situation is that – one hopes – United Kingdom ministers will be more careful about what international agreements they sign in this post-Brexit period.

An international legal instrument is not akin to a press release to be signed (off) so as to get Brexit done.

Entering into this agreement was a serious commitment, but the United Kingdom government was not serious.

But, just as inexperienced business people may sign one shoddy contract but never sign another one, perhaps the next generation of politicians – both those who make the decisions and those who hold them to account – will take the exercise of entering into a deal more seriously.

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Unless and until the European Union agrees to amend the protocol, the United Kingdom is stuck with the withdrawal deal it signed.

This is the practical reality of ‘getting Brexit done’ and ‘taking back control’ – the United Kingdom is perhaps more reliant on goodwill than before.

This legal dependency is the hidden, inconvenient truth of Brexit – and Brexiters could not have in substance made us any more reliant on the European Union if they had tried.

Brexit did get done – but by giving away control and not by taking it back.

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How significant would the repeal of Human Rights Act really be?

3rd October 2021

Yesterday was the twenty-first birthday of the Human Rights Act 1998 taking full effect.

This statute gives direct effect in domestic law to rights contained in European Convention on Human Rights (ECHR).

The Act, however, may not be in effect for that much longer.

This is for two reasons.

First: the new lord chancellor and justice secretary Dominic Raab is a long-time critic of the legislation, and as a junior justice minister previously sought to get the Act repealed.

Second: there is a review soon to report that may be the occasion (or pretext) of the Act being repealed.

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How significant would repeal be?

In one way it would have to be of no effect: for the Good Friday Agreement expressly mandates the United Kingdom to ensure that the ECHR is enforceable directly in the courts of Northern Ireland.

Unless the United Kingdom seeks to breach the Good Friday Agreement then any repeal must not have the effect of making such direct enforcement impossible.

Another way in which repeal would have limited effect is that since 2000, the ‘common law’ has ‘developed’ so that domestic law is more consistent with the ECHR without needing to resort to relying on the Human Rights Act.

So, in a way, the stabilisers can now come off the bicycle – the direct effect of the ECHR has now had its beneficial impact, and we can now perhaps do without it.

And there is certainly no need for the legislation to have such a bold and (for some) provocative title: a replacement law could be boringly titled as the European Convention on Human Rights (Construction of Statutes and Related Purposes) Act.

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But the real reason why the repeal of the Act may not have a dramatic effect across the legal board is (in a stage whisper) it was never really that powerful an Act in the first place – even though it has had some impact on legal development.

For example, and unlike with European Union law, a domestic court could not disapply primary legislation for being in breach of a pan-European law.

Almost all the convention rights are ‘qualified‘ in that the government can often infringe those rights easily if it has its legal wits together.

And although there are some areas of legal practice – for example family proceedings and immigration appeals where convention rights can (and should) make a difference – these specific areas do not now need an entire Human Rights Act.

Also: there are many ways in which courts will still be able to have regard to the ECHR in interpreting and constructing legislation, even without the Act.

And as long as the United Kingdom remains party to the ECHR – and the current government says that this will not change – there will still be the right of United Kingdom citizens to petition the Strasbourg court if the United Kingdom in in breach of its obligations, as was the situation before the Act was passed.

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So: if the Act is repealed, it would not necessarily be a practical disaster.

The significance of the repeal of the Human Rights Act would be much the same as the significance of having such an Act in the first place: symbolism.

What some people put up, other people want to knock down.

If the Human Rights Act were a statue rather than a statute, Raab would want to throw it into the harbour, just for the sheer symbolism of doing so.

Splash.

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But as a matter of practical law, the general effect of repeal would not be that legally significant, especially if provision was made for it to continue to have effect in Northern Ireland and in specific practice areas.

Yet symbolism is important, rather than trivial and dispensable.

Having a statute called the Human Rights Act that expressly gives general domestic effect to our international human rights obligations and providing minimum (even if qualified) rights is a good thing in itself.

And so, even if the practical significance of repeal would not be that great, it is still a Good Thing that we have the Human Rights Act.

Perhaps this review of the Act will be as mild in its proposals as the recent review on judicial review.

Perhaps, as this blog has previously averred, Raab would be well-advised not to use his limited ministerial time on this issue instead of dealing with the legal aid and prisons crises (and on this also see former lord chancellor and justice secretary David Gauke here)

Perhaps; perhaps not.

Perhaps there will be a direct hit on liberal sensibilities and that, this time next year, there will not be a twenty-second anniversary of the Human Rights Act still having effect.

Us woke libs wud be pwned.

But, even if repeal does come to pass, those twenty-one years were good ones for the development of our domestic law.

And so if the Human Rights Act is repealed, those twenty-one years of impact on our domestic laws will not (easily) be abolished.

The Act’s memory will be its blessing.

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The “I will make something up…who are they going to believe, me or you?” police officer only gets a written warning – and why this matters after the Sarah Everard murder

2nd October 2021

The news in the United Kingdom has been dominated in the last few days by the murder of Sarah Everard by a serving policing police officer by means of his police powers – for which the murdering police officer received an exceptional whole-life sentence.

There have been some dreadful (if not surprising) responses – such as the preposterous metropolitan police statement that those who doubt the credentials of an arresting officer should ‘wave down a bus’ (see this blog yesterday).

Another inane statement was made by a Conservative politician and crime and police commissioner.

Sarah Everard should have been more “streetwise about the law”:

https://twitter.com/davidallengreen/status/1443936403323248645

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This strange view that one should challenge an actual police officer prompted memories of an incident last year in Lancashire.

Watch this video of a confrontation – watch it a few times, so the content of the exchange sinks in:

*

Here the police officer actually shouts at someone challenging his power of arrest:

“I will make something up…

“Who are they going to believe, me or you?

“Who are they going to believe, me or you?”

*

Presumably the citizen here challenging the police officer was not being streetwise enough.

Presumably the citizen should have waved down a passing bus, so that the bus driver could adjudicate.

*

So whatever happened to this police officer?

The police officer here is conducting himself in such a way as to undermine police officers everywhere, and indeed so as to undermine the rule of law.

Presumably this conduct would have the most serious of sanctions, and this officer would no longer employed be in the police force.

And his colleague stood by watching this happen, as if it was a normal part of a police officer’s working day.

*

Well.

All that happened is that the officer received a mere written warning.

This was reported just over a month ago, some fifteen months after the incident.

All the Lancashire police said was:

“A misconduct meeting has been held in relation to this matter and the officer involved has received a written warning.

“The matter is now concluded.”

The officer is not named and he is presumably continuing with his police work otherwise unaffected by what happened.

The Independent Office for Police Conduct (IOPC) provided more information:

 ‘At a misconduct meeting in May he accepted breaching the standards of professional behaviour in respect of: integrity, discreditable conduct, authority, respect and courtesy, use of force; and duties and responsibilities.’

Let’s break this down.

This means the police officer accepted he acted:

– with a lack of integrity,

– discreditably,

– with a lack of authority, respect and courtesy, and

– in breach of his obligations in respect of the use of force, respect and courtesy.

And for all these admitted failures, the police officer did not even get a final written warning, let alone anything more onerous.

Perhaps if he is filmed doing this again, he may be given a final written warning – because then it would be really serious.

*

The full IOPC statement is here and it is dated June 2021.

It states (with my comments in brackets):

“During our investigation, which was completed in December, we obtained accounts from the two police officers involved in the incident as well as the complainant and one other man who was there at the time.

‘We reviewed the video footage and a number of other police witnesses provided statements.

[One can bet they did.]

“Neither of the police officers were wearing a body-worn video camera.

[What a surprise.]

“We found that when police arrived, they found themselves blocked by a van and a car. The complainant was one of four men present at the time who were requested to move the vehicles.

[They evidently brought it on themselves.]

“Only part of the interaction between the police officer and the complainant was caught on camera.

[And that presumably lessens the seriousness of the particular exchange recorded.]

“We found one officer had a case to answer for misconduct. At a misconduct meeting in May he accepted breaching the standards of professional behaviour in respect of: integrity; discreditable conduct; authority, respect and courtesy; use of force; and duties and responsibilities.

“He was given a written warning.’

*

The impression given by that last sentence – and the impression the BBC converted into a statement of fact in its report – is that it was the IOPC that imposed the sanction.

But usually the IOPC reports, and it is the particular force that imposes the sanction.

So I asked the IOPC about this yesterday, and they told me:

“at the end of an investigation we determine whether an officer has a case to answer for misconduct or gross misconduct. The force will then arrange disciplinary proceedings (if required) and it is for the person (or panel in some cases) in charge of that hearing to determine whether the case is proven and, if so, what the sanction should be.”

So it was the Lancashire police who gave the written warning, and not (as the BBC reported) the IOPC.

*

And what about the police officer who just looked on as this officer shouted his threats about making things up?

The IOPC said:

“The other officer whose conduct we investigated was found to have no case to answer.”

*

Lancashire police assert that the matter is “now concluded”.

Concluded, that is, with a mere written warning, with the officer keeping his anonymity and presumably he is carrying on policing citizens.

And presumably he is also giving evidence regularly in court on which convictions are supposed to rely.

Who is the court going to believe?

Him or the defendant?

A police officer who freely – and loudly – threatens that he will make things up when his credentials are challenged.

And the court will not know any different.

*

“The matter is now concluded.”

But.

The matter is not “concluded” – certainly not in this post Sarah Everard age.

It is not good enough that behind closed doors, in secrecy, mild sanctions are imposed for conduct which even the officer admitted was in breach of so many rules of conduct.

This is ‘closing of the ranks’ – but in a systemic and structural way, rather than as a matter of mere police culture.

And there will be many who will not be surprised at the police misconduct here:

https://twitter.com/davidallengreen/status/1251578141908361217

Street wisdom is no help.

Waving-down a bus will not make a difference.

https://twitter.com/davidallengreen/status/1443940430471643152

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That a police officer who shouts loudly that he will make something up when challenged will keep his job and his anonymity – and will presumably carry on policing citizens and providing evidence to courts – is an absolute counterpoint to the assertions that citizens when confronted with an arresting officer can do anything other than comply.

For who would a court believe?

The serving police officer with a warrant card?

Or the arrestee?

“I will make something up…

“Who are they going to believe, me or you?

“Who are they going to believe, me or you?”

Who indeed.

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Why the advice of the Metropolitan Police that those concerned by wrongful arrest ‘wave down a bus’ is besides the point

1st October 2021

The metropolitan police have published statement in response to the public concern about the case of Sarah Everard, who was murdered by a police officer using his police powers.

The statement is here.

In the final part of the statement there are suggestions about what to do if you are arrested by a lone plain clothes officer, and it concludes with this advice:

‘If after all of that you feel in real and imminent danger and you do not believe the officer is who they say they are, for whatever reason, then I would say you must seek assistance – shouting out to a passer-by, running into a house, knocking on a door, waving a bus down or if you are in the position to do so calling 999.’

Waving down a bus.

Just think about this.

As the estimable Hannah Rose Woods avers:

Imagine the scenes of a person challenging what may be a lawful arrest by stopping a bus and getting the bus driver involved.

It would probably end up with the hapless bus driver being arrested as well.

One gets the sense that the writer of this police statement had, by the end of it, ran out of ideas and was winging it like an unprepared student in the last half-hour of an examination.

But even the other advice in the statement is unrealistic and misconceived.

Anyone challenging arrest can say hello to the offence of resisting or wilfully obstructing a constable in the execution of their duty.

They may also say hello to Mr Taser.

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https://twitter.com/davidallengreen/status/1443889485234704401

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Telling you how to vet whether someone stopping you in the street is actually a plain clothes police officer is rather besides the point, when it is the actual police officers that are the problem.

For this is the problem with the Everard case.

The murderer was a police officer, using police procedure.

The problem is not about public confidence about whether these people are police officers or not.

The problem is that they are police officers.

Here consider these two tweets from the writer Eleanor Penny:

https://twitter.com/eleanorkpenny/status/1443499311636025346

https://twitter.com/eleanorkpenny/status/1443502729645764609

She is absolutely right.

The problem is not that this murder was a ‘wrong un’ – a bad apple, and so on.

A problem is the immunity and impunity with which police officers routinely and casually use their coercive powers.

They know they can use their coercive powers at will, with no real accountability.

The powers of stop and of arrest are so general, and the thresholds they have to meet (or say they meet) are so low, that they can freely inflict what would otherwise would be an assault as they wish.

And even if, in a particular instance, an officer exceeds their authority, there is no real consequence for the officer: a civil action may be brought against the police force, or a complaint may be made, but the officer will continue in their job unaffected.

When you come to believe that a warrant card is a casual device, then – at the extreme – you have the situation in the Sarah Everard case.

An extreme on a scale, and not something isolated.

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Yesterday this blog set out why the whole-life sentence for the murderer of Sarah Everard was spot-on.

Because the offence was committed by means of the use of police power, then it was so exceptionally serious as to warrant an exceptional sentence.

But.

The misuse and abuse of police powers are relevant in many other situations, and the law – and judges – should similarly be alert to their presence, and not just in the extreme cases.

And it should not be for those facing arrest to vet the credentials of an arresting officer.

Still less wave down a bus driver to get them involved and possibly also arrested.

The problem is about how police officers are, in effect, unchecked and (to use a phrase) a law to themselves, with no real accountability.

And this should not be made the responsibility of the arrestee or potential victim.

That bus has passed.

*****

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