Conspiracies do, of course, exist – often to cover up cock-ups, for that is usually the only time when any given group of people have the focus and motivation to act in concert.
But a conspiracy is rarely the first notion that comes to my mind to explain any odd state of affairs.
And so, in respect of the 1987 murder of Daniel Morgan, I do not know why he was killed and who killed him.
This is just not safe legal-libel speak: I genuinely have no idea, and I offer no theory.
But what is odd about this murder was the aftermath: a remarkable succession of failed investigations and prosecutions.
Here, again, there may be explanations short of a conspiracy.
Court cases and so on fail all the time, and for various reasons.
And even if those reasons point to systemic failures, often those system failures are not conspiracies but just, well, system failures.
But.
The succession of failed investigations and prosecutions in the case of Daniel Morgan also indicate that there may be concerted wrongful conduct.
And nobody who knows anything about the metropolitan police and their relationship with the tabloid media at the relevant time would be surprised if there had been undue pressure and corruption.
Still: we do not know for certain.
And this is why an independent panel inquiry was set up in 2013 to, as far as possible, get to the bottom of what happened and what, if anything, went wrong.
(My 2012 piece calling for a formal inquiry is here.)
*
The panel spent eight years putting together a detailed report.
The eight year period indicates the complexity and perhaps the seriousness of the matters being investigated.
And this long-awaited report was about to be published…
…when in an extraordinary intervention Priti Patel, the home secretary, has delayed its publication.
None of the supposed reasons add up, and it appears to me that the home secretary’s stated reasons are mere pretexts.
This is an extraordinary intervention by a politician in an independent inquiry.
And it also may be counter-productive – as it is drawing attention to a report that – even if it were critical – may have had little press or public attention.
After all – as I aver above – few would be surprised that bad things were happening at the time with the police and the media.
So, even if there is something in there which Patel, for political reasons, did not want in the public domain, her delay may be bringing attention to a thing others may have preferred were left not emphasised.
Some commenters believe that the report will be an exposure of the corrupt relationships between the media and the police of the time.
I have no idea.
But many will be even more interested in the report now after Patel’s extraordinary and perhaps clumsy intervention.
And we should hope that the report when published finally brings some justice for the family of Daniel Morgan who have campaigned tirelessly since his death for the truth to be revealed.
*****
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After every miscarriage of justice there is the question of how the wrong was possibly allowed to happen.
And often the miscarriage comes down to the evidence before the court.
In essence: the court is presented with evidence that [x] is the case, and unless that evidence can be undermined then the court will be satisfied that there is guilt beyond reasonable doubt.
The evidence can come from police officers. or from an ’eminent’ expert witness, or (as with the Horizon scandal) an IT system.
In a criminal case a court is presented with substantive (-looking) evidence on one side of the scale and nothing – other than perhaps bare denials – on the other side.
And so the scales tip to one side.
To dislodge such (on the face of it) compelling evidence is a difficult task.
To an extent the situation is alleviated by the obligation of the prosecution to disclose relevant evidence, and not just the evidence on which they are relying on.
To an extent the situation is also alleviated by a prosecutor assessing the soundness of the evidence before bringing any prosecution.
To an extent proper preparation for trial from everyone involved – judge, prosecution, defence – should be a safeguard.
And the main safeguard, of course, is (or should be) the forensic process itself.
Evidence – especially evidence which comes from supposedly authoritative sources – should be relentlessly tested for its cogency.
There should not be mere nodding-along in deference – whether to a police officer, a ‘respected paediatrician’ or a ‘robust’ computer system.
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But.
Disclosure exercises are sometimes not easy – or cheap.
A properly resourced prosecution authority is not cheap.
Proper case preparation is not cheap.
And skilled in-court lawyering and cross-examination is not easy – or cheap.
For justice to be served, however, requires all of this is done well – which requires funding and other resources.
Else the court will be prone to placing the wrong weight on evidence before it.
Or as techies put it: Garbage In, Garbage Out.
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Yesterday a former police officer was convicted of the murder of George Floyd.
The evidence was overwhelming and, to most people who followed the televised trial, compelling.
Indeed, some would aver (in my view, correctly) that the evidence was compelling even before the trial.
But due process is due process, and even those charged with the most vile of crimes are entitled to due process.
And the former police officer received due process, and the former police officer was duly convicted – unanimously.
Yet.
Until the very last moment the verdict was uncertain.
Anyone watching the verdict being handed down was braced for an acquittal.
Regardless of the starkness of the evidence – and of the weakness of the defence case, even taking it at its highest – it seemed extraordinary that a white former police officer would actually get convicted of the murder of a black person.
And even if the evidence was as twice as compelling, and the defence case twice as weak, one would still realistically expect an acquittal.
For that seems to be the nature of the criminal justice system.
There is here a gap between knowledge and expectation – and this gap is systemic racism.
*
By ‘systemic’ is meant that the racism is a feature of the system.
It would not matter which white police officer was accused, and which black person was the victim of a wrong, the operation of the system will tend towards certain outcomes.
Black people will tend to be the victims of police violence and there will never be any sanction against those who inflict the violence.
Any fatality will tend to be the subject of misdirection and misinformation by the police to the media.
Any victim will tend to be disparaged, if not demonised.
Any police violence will tend not to be filmed or similarly documented.
Any accused police officer will tend to be given the benefit of the doubt – and if there is no room for doubt, they will be given the benefit of some excuse.
Any other officers will tend to stay quiet.
Remember: none of Chauvin’s colleagues turned him in. He murdered a man in broad daylight and we are here today because a brave Black girl named Darnella Frazier kept taping despite threats from the cops on the scene.
And any prosecution brought will tend to lead to an acquittal.
The reason for each of these swerves away from justice will be different from case to case.
But the overall bias of the system will mean that the gravity pull will be against any conviction.
*
The solution to this problem is not to dilute due process – but to be open and frank about the factors which will distort the process as a whole.
Indeed, everyone should have the benefit of the strict approach to due process that is accorded to police officers and other privileged defendants.
*
It is all very good to say there are systemic problems, some will protest, but what about solutions?
Well.
There is plenty of sensible and constructive thinking out there about other faults in the system – for example, see these two threads which should be read carefully.
For those who are interested in research-based solutions to stop police violence, here’s what you need to know – based on the facts and data. A thread. (1/x)
As the Derek Chauvin trial comes to a close, it is important to recognize that accountability for the killing of George Floyd, while necessary, will not have a broad effect on American policing. The circumstances that led to this tragedy will be repeated. 🧵 below
A systemic problem needs a systemic approach to the solution.
Picking on any individual element of the system will not be sufficient, as long as other elements still tend towards injustice.
Accepting the importance of a systemic approach – and of the existence of system (or institutional) racism – will be for many an intellectual and emotional pain barrier.
Racism in legal systems is not just about the wrongness of individual acts – but a realisation of the impacts of swarms of wrongful acts which means that – unless there are exceptional circumstances – white police officers will get away with whatever violence they can against black people.
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Another evening of disturbances in Northern Ireland.
And so another round of ‘appeals for calm’.
Of course: such a call is the responsible thing to do – and nothing in this post should be taken to gainsay this.
But do such appeals actually work?
Does this – almost ritualistic – reflexive speech act ever have the intended effect?
And if so, how?
*
A cynic may contest that one function of ‘appealing for calm’ is to just give something ‘community leaders’ something to say and do – a gesture as empty and meaningless as ‘thoughts and prayers’.
As such there could almost be a circular definition – a ‘community leader’ is the person who ‘appeals for calm’, and ‘appealing for calm’, is what a ‘community leader’ does – thereby a ‘community leader appealing for calm’ is almost a tautology.
*
But such cynicism may be misplaced, for there appear to be many examples of appeals for calm that have had efficacy:
When Nelson Mandela appealed for calm after Chris Hani was killed. He could easily have used it to help overthrow the government violently and bring himself to power, instead he was statesman-like and not only gained power but a legendary status.
Bobby Kennedy’s speech after the assassination of Martin Luther King has been credited with keeping Indianapolis relatively calm. https://t.co/gd0yjWUHpb
So there are historical instances where the ‘appeal for calm’ seems to have had the intended political and social effect – though of course there may be other features present.
But the ‘appeal for calm’ has another important function.
And this is that it will be significant when the expected speech act is not made by a particular individual.
Here we have an example from just three months ago:
Isn't the counterfactual important? Look at what happened when Trump refused to condemn Capitol riots etc
As so often with language and politics, it can be more important when certain words and phrases are not used than when they are.
This is true not only for formal texts such as laws, but also for rhetorical acts in certain situations.
An ‘appeal for calm’ thereby might or might not work – but a failure or obvious refusal to ‘appeal for calm’ can have unwelcome consequences.
Appealing for calm is therefore an important piece of political behaviour – both for what it can achieve and also for what may happen if the appeal is not made.
Words matter, but so does silence.
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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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Ten years ago this month the singer David Emmanuel – known as Smiley Culture – died under arrest during a police raid.
The cause of death was a knife wound – which the police said was self-inflcited.
Ten years ago I blogged about this extraordinary death – and so this post is a follow-on so as to see what happened (and did not happen) next.
*
Smiley Culture was part of the soundtrack of those of us brought up in the 1980s.
Have a click and listen and watch.
The sneering, aggressive vocal characterisation of the officer – ‘Shut your bloody mouth. We ask. You answer’ – felt spot on for those in communities which dealt with the police.
Police Officer especially caught a certain mood about the police’s attitude.
*
Here is the singer posing outside a south London police station on the cover of the single:
*
The news of the circumstances of the death of Smiley Culture seemed – literally – incredible.
That someone could stab themselves fatally in the chest in the presence of police officers seemed surreal – like something akin to those lines in the Blackadder episode Dish and Dishonesty.
But this – horrifically – was real, not a fiction.
*
The name of Smiley Culture is now recalled as one of a long list of name of black people who have died in police custody or in similar situations.
So what happened with his case?
Putting events together now, the main consequence of the death was a coroner’s inquest in June-July 2013.
After a two-week hearing, the jury returned a majority verdict that the cause of death was indeed suicide.
(A majority verdict, of course, means that the jury could not come to an unanimous verdict, which in turn means that at least one juror had doubt that it was a suicide.)
According to a BBC report, the inquest heard medical evidence that the fatal wound could have been self-inflicted, if the right spot was chosen:
‘Dr Nathaniel Cary, who carried out a second post-mortem examination on Mr Emmanuel’s body, said told the inquest it was possible the fatal stab wound was, as described, a self-inflicted injury.
‘But he said that on pathological grounds alone there was nothing to determine that this was the case, although it was fair to say the site chosen may be used in self-infliction.’
The majority of the jurors accepted this as the explanation.
As counter-intuitive as this verdict may seem, it must be remembered that those jurors sat through two weeks of evidence – which was cross-examined on behalf of the deceased’s family.
But another person who sat through that hearing – the daughter of Smiley Culture – was not satisfied.
‘After listening to over two weeks of evidence and having had the opportunity to test the accounts of the officers, I feel no closer to the truth than I did before.
‘I have approached this inquest with an open mind hoping to hear for myself what happened on the day of my dad’s death.
‘Despite the jury’s verdict, the inconsistencies in the evidence have only served to raise serious concerns on my part about what really happened on the morning of March 15 2011.’
*
That a person in a room drinking tea with a police officer should suddenly get up, produce a large kitchen knife and plunge it in his own chest so as to kill themselves is, even accepting the jury’s verdict, an extreme fact situation.
Even if it were suicide, there are questions to be asked about how it happened, and answers to be given in the public interest.
‘Despite the suicide verdict, the jury did find that the way in which Mr Emmanuel was supervised following his arrest materially contributed to his death. In particular, the fact that a single officer was left to supervise Mr Emmanuel while also completing paperwork was felt to be inappropriate.
‘The inquest has also highlighted serious failings in the Independent Police Complaints Commission’s investigation, including a failure to attend the scene until some four hours after the event, a failure to secure all relevant evidence, and a failure to critically analyse opinions expressed by the expert witnesses.
‘Following the verdict, the Coroner, Mr Richard Travers, said that he would write to the Metropolitan Police Service, highlighting failures that contributed towards the death, making recommendations for changes aimed at preventing similar tragedies in future.’
*
The (then) Independent Police Complaints Commission issued the following press release after the inquest verdict (emphasis added):
‘Following today’s conclusion of the inquest into the death of David Emmanuel, also known as Smiley Culture, IPCC Commissioner Mike Franklin said:
‘David Emmanuel’s death caused huge shock, anger and disbelief in the community and I am aware that many people, most importantly Mr Emmanuel’s family, have waited over two years for the evidence to be heard at an inquest.
‘The ongoing dynamic assessments made by officers on the 15 March 2011 were left wanting. Four experienced officers felt it appropriate to detain a suspect in the kitchen, potentially the most dangerous room in the house and afforded him a level of freedom not normally associated with an operation of this kind.
‘The IPCC has made a series of recommendations to the Metropolitan Police following this investigation presenting them with areas that should be reviewed and changed in light of the findings. These include recommendations on dynamic risk assessments, the sharing of information and use of officer personal safety equipment.
‘The IPCC made two national recommendations following this investigation. The first is that officers should always detain people in the safest part of the house. Therefore kitchens must generally be avoided at all times. The second national recommendation focused on officer safety equipment and that all officers and staff attending search operations should carry with them the appropriate personal safety equipment.
‘While the IPCC highlighted these areas of learning for the MPS, the officers’ actions did not meet the threshold for misconduct under the Police (conduct) Regulations 2008 and no disciplinary action has been recommended.
‘I hope that this inquest has provided Mr Emmanuel’s family with some of the answers they and the community have so patiently waited for. This has been a long process for all the parties involved and I would like to thank them for their patience.
‘Notes to editors
‘Mr Emmanuel died on 15 March 2011 of a single stab wound through the heart at his home on Hillbury Road in Warlingham, Surrey. Four officers from the Metropolitan Police Service (MPS) were at the house at the time, carrying out a search of the property.
‘After careful consideration and in consultation with lawyers from both the IPCC and the Crown Prosecution Service (CPS), Commissioner Mike Franklin, took the decision not to formally refer the case to the CPS as the investigation found no evidence that a criminal offence may have been committed.
‘Consideration was also given as to whether the actions of individual officers met the threshold for misconduct under the Police (conduct) Regulations 2008. The investigation found there were no individual failings which, for the purposes of the Regulations, amounted to misconduct.’
*
So the conduct of the police was ‘found wanting’, somebody died under arrest, but this was an opportunity for ‘learning’ rather than any formal proceedings.
The coroner, in turn, also made recommendations.
Thanks to a tweeter, we have what appears to have a formal record of the recommendations:
Presumably this is report 208 on p39 at https://t.co/2zixUC50Q4 ? If the inquest had been 4 weeks later we could read the letter and responses.
No doubt in each of those situations there are special facts – but it is marked that the police rarely face any proceedings, let alone criminal charges for any of these deaths.
And it may well be that the close scrutiny of each case could dispel any suspicion that something wrong happened every time.
But the accumulation of deaths as set against the absence of successful prosecutions seems to be a mismatch.
Given the facts of the death of Smiley Culture, as determined by a majority of a jury, it may contested that his death is not as glaring example of this apparent trend of injustices as many others.
But like one or two of the others that have died while in the custody (or ‘care’) of the police, he happened to be more famous than the rest, and so his is one of the names that will be cited.
And even the IPCC found the conduct of the police at the time of his death to be ‘wanting’ – with both the IPCC and the coroner separately making recommendations about how such searches are conducted in future.
So even if one accepts the coroner’s inquest – and again the jury heard the relevant evidence cross-examined and a majority of those jurors were convinced it was suicide – the death followed carelessness by the police.
I am still seeking to find out if those recommendations were formally accepted by the police and the home office – though I have been told by police sources that the training for such searches now includes the need for risk assessments that would cover what happened in the death of Smiley Culture.
I will post here again on this subject when I have further information about what happened with the recommendations of the coroner and the IPCC.
It is important to follow these things through, even ten years later – especially as black people continue to die in police custody, and there are never any formal proceedings.
**
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And that, in turn, is the account of the Gloucestershire Police Federation as it is directly linked to at their website (top right).
So, yes, it is a real tweet.
A real tweet by a real chair of a real police federation.
*
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’.
‘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 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.
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:
"Migrants who arrive in the UK by small boats or other illegal routes will be indefinitely liable for removal even if they are granted asylum, under punishing proposals to be announced by Priti Patel".https://t.co/Rw1Iw8cqfC
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:
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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And for seventy years the offence was hardly noticed, though it was reenacted from time to time as telecommunications legislation was, ahem, modernised and simplified.
Then in 2003 it was reenacted yet again, but in terms that (without any proper consideration) ended up covering the entire internet:
But it was still not really noticed.
Until one day some bright spark at the crown prosecution service realised the provision’s broad terms were a prosecutorial gift in the age of social media.
In allowing the appeal against conviction, the lord chief justice said:
In other words: the intention of the 2003 reenactment had not been to widen the scope of the offence in respect of fundamental freedoms.
(Declaration of interest: I was the appeal solicitor before the high court in that case.)
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Coming back to clause 59, it may well be that the intended effect of clause 59 is to merely restate the existing law.
Some are convinced by this view:
This is particularly so when the Bill is explicitly restating the common law. I would expect the Courts to apply the old caselaw to the new, statutory offence.
— Yet Another Tweeting Barrister (@TweetingYet) March 20, 2021
But.
What we will have, once enacted, will be an offence – that is, an arrestable and chargeable offence – which, on the face of it is in extraordinary broad terms, using such everyday language as ‘annoyance’.
It may be that the higher courts will, as any appeals come in, apply the technical meaning in property law of ‘annoyance’.
The law in practice is not that (only) of the judgments of the high court and above: it is what police officers and crown prosecution service case workers believe the law to be and see the law as it is set out.
It is also can be what zealous complainants to the police say it to be.
And none of these people will – understandable and perhaps rightly – be well versed in the case law of ‘annoyance’ in respect of the old law of public nuisance.
They will just see an arresting and charging power – and a power to set conditions.
So it should not be left to the courts ‘to apply the old caselaw’.
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Criminal offences – and their limits – need to be clear and precise to everyone involved: citizen, complainant, arresting officer, crown prosecution service case worker, busy junior legal aid solicitor giving advice on plea – as well as to erudite barristers and even more erudite judges.
And so: even taking the point about this being a mere modernisation and simplification at its highest, clause 59 currently contains worryingly wide drafting.
Most people reading clause 59 by itself will believe there is a criminal offence – with a sentence of up to ten years – for causing mere annoyance.
Even if that it not the government’s intention, that is how the current provision can be read.
And because of this, people may suffer the life-changing events of being arrested and being charged – and may even plead guilty.
Unless, of course, that is the government’s real intention.
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There is currently a bill before parliament that will, among other things, create a new statutory offence of ‘public nuisance’.
This new offence – as currently set out in the bill – is itself causing annoyance and distress.
Why is it being proposed?
And what should parliament do about it?
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Like a lamp in Aladdin – it is a new offence for an old one.
If the new offence is enacted then the current ‘common law’ (that is, non-statutory) offence of public nuisance will be abolished.
The current offence is ill-defined and rarely used – and it has been the subject of 2015 reform proposals from the Law Commission – see here.
(Of course, the fact that the Law Commission proposed reform in 2015 is not the reason why the home office have chosen to propose changes in 2021.)
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On the face of it, reform and simplification are good things.
Who could possibly oppose something as laudable as reform and simplification?
And the Law Commission does have a point – the current law is somewhat vague and archaic.
The current law is usually stated as:
‘A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.’
The bill before parliament proposes that old offence to be replaced by this:
As you will see there are elements of the current offence copied over to the new offence – and that although this is an exercise in ‘simplification’ it also happens to be rather longer.
Words like ‘annoyance’ are added.
But the new offence has not plucked the word ‘annoyance’ out of the air: annoyance can be a component of the current offence, and it has featured in case law.
The word ‘annoy’ (and its variants) is mentioned thirty-seven times in the Law Commission report.
The Law Commission summarises their view as (at paragraph 3.12):
‘One question is the nature of the right or interest which public nuisance seeks to protect. In our view, its proper use is to protect the rights of members of the public to enjoy public spaces and use public rights (such as rights of way) without danger, interference or annoyance.’
Whatever ills can be blamed on the home secretary and the home office, the content of this proposed provision is not entirely of their creation.
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But.
Each and every piece of legislation needs to be scrutinised on its own terms – and neither parliamentarians nor the public should just nod-along because the magic words ‘reform’ and ‘simplification’ are invoked.
Never trust the home office.
And if one looks through clause 59 carefully and trace through how it works, it is potentially a chilling and illiberal provision.
For example (with emphasis added):
‘A person commits an offence if— (a) the person— (i) does an act […] [which](b) the person’s act or omission […] (ii) obstructs the public or a section of the public in the exercise or enjoyment of a right that may be exercised or enjoyed by the public at large, and (c) the person […] is reckless as to whether it will have such a consequence. […] (2) For the purposes of subsection (1) an act or omission causes serious harm to a person if, as a result, the person […] (c) suffers serious distress, serious annoyance, serious inconvenience or serious loss of amenity,or (d) is put at risk of suffering anything mentioned […].
The offence is thereby made out not if a person is caused ‘serious annoyance’ but only if there is a ‘risk’ of them suffering it.
And there does not need need to be any directed intention – mere recklessness will suffice.
The maximum sentence for simply putting someone ‘at risk of suffering’ serious annoyance is imprisonment for a term not exceeding ten years.
Of course, maximum sentences are maximum sentences, and in practice the penalties will be lower.
Yet, the creation of such an offence in these terms will have a knock-on effects on the powers of police to arrest and to set conditions.
And it is in the day-to-day exercises of such powers by the police that the real chill of any offence is most keenly felt – and not the ultimate sentencing power of a court.
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This provision and other provisions in the bill before parliament have the potential to greatly restrict the rights of individuals to protest – or even go about their everyday activities.
As such, such provisions should receive the anxious scrutiny of parliamentarians.
Despite the Law Commission origins of the proposed reform – there may be plenty here that the home office have added – and for various illiberal reasons.
Members of parliament are not there to nod-along – and this particular proposal should not just be nodded-through.
***
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