On Liberty (10 page)

There were audible gasps in the chamber, where once more I had the privilege of witnessing such important events. The Baroness’s speech had a decisive impact. On 13 October 2008 peers finally voted the bill down by 309 votes to 118 – a majority of 191. The government, no doubt distracted by the practical and presentational priority of collapsing international markets, dropped the forty-two-day detention policy without much further ceremony. It had been a long battle – a hard and at times dirty battle. But the euphoria of defeating this odious policy has not diminished to this day.

When, following the 2010 general election, the Conservatives and Liberal Democrats took power in a coalition, civil liberties were supposedly the noble glue with which to bind a parliamentary marriage cobbled out of parliamentary arithmetic and still-failing markets. It was not to be. Punishment
without charge in the form of control orders was sadly and rather shockingly rebranded in 2012 as Terrorism Prevention and Investigation Measures (TPIMs). Pre-charge detention, no doubt having achieved a better publicly understood and iconic status, was reduced to fourteen days (that’s 336 hours or over 20,000 minutes) in a police cell without the suspect knowing why.

Don’t knock ASBOs, it’s the only qualification some of these kids will ever get
.

– Linda Smith

We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law. We will not walk in fear, one of another. We will not be driven by fear into an age of unreason if we dig deep in our history and our doctrine and remember that we are not descended from fearful men – not from men who feared to write, to associate, to speak and to defend the causes that were for the moment unpopular. Good night and good luck
.

– Ed Murrow

By 2006 it sometimes felt as if our country had become an ‘Asboland’, where irritation, offence and nuisance were to be conflated with serious criminal behaviour and even, at times, terrorism. Prime Minister Tony Blair had given a number of speeches since his 1997 election win, most notably at Labour’s 2005 party conference, boasting of his ‘battering’ of the criminal justice system to change. He suggested that anti-social behaviour, drug dealing, binge drinking and organized crime
were ‘twenty-first century’ problems that couldn’t be dealt with in a ‘Dickensian’, ‘nineteenth-century’ criminal justice system, which had at its heart the presumption of innocence. Blair was as bold and explicit in his attack on this ‘golden thread’ of the system as he was actually or theatrically naive as to the existence of all the social problems mentioned in earlier centuries. In 2004, he had remarked that ‘the concern of a nineteenth-century criminal justice system was too many of the innocent being convicted’. His twenty-first-century concern, by contrast, focused on too many of the guilty going free.

The shallower roots of Blair’s thinking lay in the 1990s, when Michael Howard, Home Secretary in John Major’s Conservative government, had tempted the young Shadow Home Secretary (Tony Blair’s most important job before becoming Labour leader in 1994) into a criminal justice-bashing arms race from which the UK has yet to escape. It is ironic that Howard and Blair, both previously able and successful lawyers, should turn on their own education and profession to denigrate the law, lawyers, legal aid – once such a proud pillar of the post-war welfare state – and even the judiciary, in a populist attempt to force crime and home affairs stories on to the front pages. This was a tactic designed to distract the electorate from the real issues: difficult and often expensive problems of inequality, parenting, education, substance abuse and mental health that riddled families and communities across classes and the land.

New Labour’s repositioning on law and order was a result of the party’s exasperation with ‘Old’ Labour being labelled ‘soft’ on crime. This was understandable not least because, as former Home Office minister Hazel Blears once pointed out to me, it is the poor who suffer most from crime and nuisance. Tony Blair’s slogan ‘Tough on crime, tough on the causes of crime’, coined in 1995 when Labour was in opposition, was campaigning genius. But nearly a decade into its practical implementation, it translated into toughness on criminal justice and vulnerable
people rather than on crime or its causes. I am conscious as I write this that many will find my liberal legal bleating predictable and imagine it to be based on a romantic lawyer’s notion of courtroom procedure as some kind of elegant ballet, prioritizing justice for the individual over that for society as a whole. But this is not my prime concern.

The Central Criminal Court, better known as the Old Bailey, was erected in 1907 on the site of the infamous Newgate Prison. Above its entrance you can still read the inscription ‘Defend the children of the poor and punish the wrongdoer’. The way that modern politics has so often pitted natural justice (as in fairness to individual defendants) and social justice (as in justice for the greater good) against each other has made me think long and hard about this famous phrase. Who exactly are the ‘children of the poor’ who must be defended? You might take the view that as these ‘children’ are pitted against the ‘wrongdoer’, the reference is only to victims of crime. That might sit well enough with the sword in Lady Justice’s right hand, but not with the scales in her left. Alternatively, one could equate the exhortation to ‘defend’ literally, with the importance solely of defendants’ rights. But that would surely warrant the use of the word ‘but’, instead of ‘and’, before the notion of punishing the wrongdoer.

It seems the message is both subtler and more realistic than that. The ‘children of the poor’ are everywhere. They are among all actual and potential victims and the accused.

This was always my biggest beef with the anti-social behaviour agenda. Dispensing with the presumption of innocence was premised on the idea that there was no need for it. As Prime Minister Blair once told the
Sun
newspaper: ‘I can’t physically come on to your street and stop the anti-social behaviour. But I can give the police the powers to do it. They know who the troublemakers are.’

Perhaps this premise was based on the belief that the police possess superhuman powers of deduction. More likely, in my
view, it was the notion that separating the worthy from the unworthy ‘poor’ was just so blindingly obvious that there was no need to worry with centuries’ worth of forensic and fair-trial protections for those suspected and accused of wrongdoing.

The government media machine presented a strange and depressing view of people in our country. On every housing estate in the land there were, it seemed, two hermetically sealed categories of humanity. In house number 1 you might find a ‘decent, hard-working family’. Not wealthy perhaps, but doing their aspirational best – the ‘right thing’ – untroubled by emotional or mental problems, family breakdown, unemployment or substance abuse. This family was portrayed as almost Stepfordesque in its perfection. Next door you would find ‘the neighbours from hell’, suffering from and no doubt causing every kind of social problem imaginable. At one point the government mooted to move such people to ‘sin bins’ at the edge of towns. It was as astonishing as it was unrealistic.

Can any of us really claim that people are all so easily pigeon-holed? Aren’t all people, and young people in particular, whether on council or country estates, in fact capable of being victims or suspects – guilty or otherwise of crime – in a single lunchtime, let alone a lifetime? The lazy populism of labelling and dividing people can appear comforting at first, but the comfort is ultimately short-term and illusory.

One of the many consequences of prioritizing policing and punishment over traditional social policy levers such as education, health and social work is that more and more people may be scooped up and shunted into a system that is so expensive in its human and financial costs that it really ought to be one of last resort.

Any police officer can walk down a busy high street and spot evidence of actual or potential crime, from regulatory and minor matters such as littering and car parking offences to rather more serious concerns. He or she judges how best to use their time and energies to prioritize what in their view requires
attention. There are so many criminal offences on the statute book that this might be a harder task than you imagine, but once we blur and broaden the law into the world of anti-social behaviour, one that sits on the border between legality and illegality, things become trickier.

The original 1998 definition of ‘anti-social behaviour’ was ‘behaviour likely to cause harassment, alarm or distress’. When asked by a television interviewer to clarify this definition, the formidable Hazel Blears replied: ‘It means whatever the victim says it means.’

Think about how broad that definition and Blears’s qualification are. A guest arrives late and inebriated to dinner. He smokes incessantly at the table without permission while other diners look plainly uncomfortable. He goes on to hog the conversation with bad and bawdy jokes. Later he makes an unwelcomed lunge for his hostess and, when challenged, punches his host. This is all anti-social behaviour in the colloquial sense – but exactly how much of it should be regulated by law, let alone the criminal code? Granted, our unpleasant guest has behaved in a pretty impolite fashion from the start, but if we censor for style and legislate for common courtesy, what have human beings left to give each other of their own free will? Isn’t there a real danger of infantilizing all of us, with the idea that one should behave with consideration to others only for fear of punitive sanction?

The other problem is that some of us are very easily distressed. We are distressed by the mentally ill person who mutters strangely in the supermarket and the pair of boisterous youths laughing loudly on the bus, joking in a foreign language we don’t understand. We are distressed by visible signs of misery, including those who find themselves begging on our streets – former servicemen and women from two long and bloody wars among them (ex-service personnel account for one in ten rough sleepers). Young people are rowdy, whether after the fine wine of Oxbridge dinners or after a couple of cans of
cider in the town centre on a Saturday night. The ‘children of the poor’, however, have of course been more usual ASBO fodder. The majority of ASBOs were imposed in some of the poorest areas in the country.

In addition to incredibly vague and broad definitions of offending behaviour, this new mutant criminal law attempted to cheat the traditional system by altering the process and standard of proof. The legislation provided for the civil rather than the criminal test (‘balance of probabilities’ rather than ‘beyond reasonable doubt’). The courts did their best to interpret this as a very high civil threshold but, when coupled with the admissibility of hearsay evidence (‘it means whatever the victim says it means’), in practice it was almost unheard of for an ASBO application not to be granted. Of the 3,069 applications made in England and Wales between April and June 2009 only forty-two (or just over 1 per cent) were refused. But the government was disappointed with the relatively small number of applications by sceptical professionals and so employed a great deal of civil service energy in instigating wider use.

Another issue was the breadth of the conditions that could be placed on the ASBO. People were banned from walking down a particular side of a particular street; sometimes, they were barred from routes leading to their own homes or to the homes of close relatives. Some were banned from being sarcastic to their neighbours or wearing baseball caps. A suicidal woman was banned from bridges – an exquisite example of a pointlessly punitive solution to more complex problems. These and many other instances like them led to a high breach rate as people – youngsters in particular – had conditions imposed on them that they could never hope to meet and were thus set up to fail. But for the wider communities in which the offenders lived, ASBOs were fools’ gold. Conditions often included banning people from certain areas, succeeding only in moving problems from one part of town to another, instead of proper
prosecution and punishment of serious crime, or attempts to get to the root causes of more petty crimes and nuisances.

What was more, these orders created a personal criminal code for an individual who could wear the ASBO tag with a feeling of victimhood and persecution (always dangerous) or, worse still, as a badge of pride – a statement of their criminal credentials. Mr Blair once embellished a speech with an off-the-cuff anecdote from the election campaign trail. He had apparently stopped a young man to ask for his vote, only to be told that this was impossible as his ASBO barred him from the school that served as his polling station. The story brought gentle giggles and its intention was no doubt to add charm to a firm diatribe on serious matters. I found it positively chilling.

From a punitive summary justice point of view, the beauty of the ASBO process is the ability to catch the offender for walking on the cracks in the pavement without ever having to prove to the proper criminal standard the original sin of criminal damage or threats or real criminal behaviour. But instead of providing a last chance for people to stay out of the criminal justice system, as was suggested, it is instead the opposite: an often extremely unfair shortcut into punishment. And as breach of an ASBO is a criminal offence, even into our already over-stuffed prisons.

For good measure, and no doubt to have any hope of enforcement, many ASBOs had to be accompanied by substantial local publicity. There is no point in banning Mr X from the town centre unless those who might spot him are aware of the restrictions on his movements. But publicity or even ‘naming and shaming’, as it often came to be called – a phrase which for me evokes medieval stocks – brings with it the very real risk of stigma and vigilantism. One local authority ASBO project even provided CCTV feed into some residents’ homes so that they could better keep an eye on their neighbourhood and their neighbours.

In 2009 there was the chief constable in a northern city
who used public money for hoardings in the major railway station showing well-known local criminals ‘growing old in prison’. I accept that these were serious convicted criminals and not mere anti-social youngsters – but they were already in prison rather than on the run so the exercise was one of pure populist public relations. Further, when Liberty wrote to the police on behalf of older and child relatives who lacked the secure ‘protection’ of the prison estate and were subject to frightening vilification in their local community, our complaint miraculously appeared in regional and national newspapers with flattering macho depictions of the chief and the accusation that Liberty was fixated with the privacy of the convicted gangsters. This was also the period that gave us offenders performing community service wearing distinctive bright orange uniforms. First the stocks and then the chain gang, and all in the name of a so-called ‘respect agenda’.

In July 2006, when he was no longer Home Secretary, the ever-energetic Blunkett challenged me to leave what he saw as my metropolitan liberal enclave (though South Londoners might think differently) to investigate and debate the value of ASBO-type legislation in his own parliamentary constituency in Sheffield. The encounter would be marshalled and recorded by Radio 4.