The Secret Policeman’s Ball

This is (possibly) the last tilt I will have at the views of the “celebrity lawyer” who, in a newspaper interview, shared with us his considered views on law and order in Ireland.

He unashamedly declared his beliefs as follows;                                                                          “ I am pro-police state. I would have every Garda in the country armed. I would tolerate nothing. Zero tolerance”

Does anyone remember Aesops Fables? Aesop was a Greek storyteller in ancient times who used his simple little stories as a way of illustrating a lesson or a moral. In one of these fables, called The Tortoise and the Eagle, (a story which had a messy ending), the moral of the story was;  “be careful for what you wish for, because it might just come true”.

A police state is an odd thing to wish for. The Oxford English dictionary defines a police state as;                                                                                                                                              “A totalitarian state run by means of a national police force, using repressive methods such as covert surveillance and arbitrary arrest and imprisonment to control the population”

If we ever manage to end up with a police state we can expect at least some of the following: The police are, as agents of the state, in control of the state. Many fundamental human rights are either non-existent or are severely restricted. There will be restrictions on freedom of movement and travel, there will be restrictions on free speech.

There is likely to be punishment for expressing any views which are critical of the ruling power. There will be no real distinction between the law enforcement agencies and our rulers. There will be a secret police agency which will engage in the surveillance and monitoring of the activities of all citizens.

All telephone calls, emails, text messages, internet browsing will be monitored and the information obtained will be carefully filed away for future reference, should the need arise. All writing, art, theatre and television will be subject to censorship. You are liable to be arrested and imprisoned on suspicion of having committed a crime, and you are unlikely to have the luxury of a trial before being convicted and sentenced. If you do, it won’t be a fair trial.

Other than that, it’ll all be grand.

If you would like to live in a country which is a police state, but just can’t find the right one, you could do worse than browse through the Amnesty International website where you will find some prime examples, many in very exotic locations. If you decide to make the move, remember every police state will have some form of secret police, and it is important to know how this system works.

There are two things to remember. Firstly, if there is a secret police, they will not be your friends. If you want to know how the secret police system works just have a look at a few examples reasonably close to home;

The Stasi was the official state security service of the German Democratic Republic (what was East Germany) between 1950 and1990. It was regarded as one of the most effective and repressive intelligence and secret police agencies in the world. If there was any doubt as to where the loyalties of this agency lay, their motto “Schild und Schwert der Partei” (Shield and Sword of the Party), says it all. During the same period the good old KGB in the Soviet Union looked after internal security, intelligence and secret police. There are many other examples flourishing worldwide.

The second thing to remember is; if you are in a police state and get tickets for the Secret Policeman’s Ball, whatever else you are doing, you’re not going to a charity gig for Amnesty International.

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Zero tolerance, Justice without mercy.

Recently I came across an interview with a lawyer who expressed some of his views on the nature of justice as follows;                                                                                                             “I am pro-police state. I would have every Garda in the country armed. I would tolerate nothing. Zero tolerance”.

By itself the concept of zero tolerance is controversial, but add in a police state and you have an extremely potent and dangerous mixture. The essence of a zero-tolerance policy is that imposes an automatic punishment for breaking a law or a rule, and the person who is administering that punishment, such as a judge, is forbidden to exercise any discretion in applying the sanction, no matter what the circumstances are. This means that the background to the incident is not relevant, the intention of the offender is not relevant, and any extenuating circumstances, no matter how persuasive, are not relevant, and cannot be taken into account.

Zero tolerance laws are generally focussed on petty crime, drink offences and anti-social behaviour. The theory is that if you can stamp out the minor crimes, the result is that, somehow, a respect for law will seep upwards through society, and we will all become a more law-abiding people. One of the frequently recounted examples of where this policy is claimed to have worked spectacularly well is in New York in the early 1990’s under the tenure of Mayor Rudy Giuliani. He was credited with having cleaned up the streets of the New York and dramatically reduced the crime rate with his zero tolerance policies.

As with all simple wonder solutions to complex problems, the reality is very different. With the benefit of hindsight it is apparent that there were many different factors at work in the reduction of crime in New York in the 1990’s, not least of which was a falling crime rate for years before these policies were introduced. In fact there is very little evidence to show in any conclusive way that zero tolerance policies are effective in reducing crime throughout society.

In practice it can be inflexible, harsh and lacking in common sense and does not in any way address the underlying causes of crime. On the other hand, you could take the view that, while the policies may not be very effective, at least they are not doing any harm, so why not keep them anyway? Again, it’s not all that simple. For young people particularly, an early brush with the law can have a lifelong effect, for good or for bad, depending on how that experience is handled. With common sense policing most youngsters who get into bother will learn their lesson from a warning, and will never re-offend. With zero tolerance you go straight to criminal punishment, labelling youngsters as criminals at an early age.

The effect of this is that many then see themselves as criminals, and see themselves as being outside mainstream society. Add to that the fact that zero tolerance means a conviction for an offence, with punishment which may include jail. A conviction means a criminal record which in turn translates into virtual unemployability. The damage to society is obvious, leaving aside the fact that rehabilitation of the offender in this scenario is practically non-existent.

If zero tolerance policies are not effective, then the obvious question has to be, why aren’t these policies just dumped? One study which concluded that the policy is a simplistic quick fix raised the same question, and concluded that eliminating zero tolerance policies is a hard sell because as a concept it gives the impression of high standards, it sounds tough, and it’s simple to understand.

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Perspectives on Law and Justice

 The Bible.  Book of Genesis                                                                                                 God resolved to destroy the city of Sodom for the sins of its people. “Abraham drew near, and said;                                                                                                                                        “Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it? … What if ten are found there?”                                                                                       The Lord said;                                                                                                                                   “I will not destroy it for the ten’s sake.”

 

Extract from “ A Man for all seasons”                                                                           Alice: “While you talk, he’s gone!”
                                                                                        Thomas More: “And go he should, if he was the Devil himself, until he broke the law!”
           Roper: “So now you’d give the Devil benefit of the law!”
                                                      Thomas More:  “Yes. What would you do? Cut a great road through the law to get after the Devil?”                                                                                                                                   
Roper: “I’d cut down every law in England to do that!”
                                                       Thomas More: “Oh? And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? The country’s planted thick with laws from coast to coast – Man’s laws, not God’s – and if you cut them down – and you’re just the man to do it – d’you really think you could stand upright in the winds that would blow then?…”

 

John Adams, Second president of the United States;                                                               “It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, “whether I do good or whether I do evil is immaterial, for innocence itself is no protection,” and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”            

Judgment of Lord Justice Denning, November 1979 on the Birmingham Six;                     “If the six men win, it will mean that the police are guilty of perjury, that they are guilty of violence and threats, that the confessions were invented and improperly admitted in evidence and the convictions were erroneous….This is such an appalling vista that every sensible person in the land would say that it cannot be right that these actions should go any further.”

Albert Einstein;  “As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule.”

Interview with “Irelands foremost celebrity lawyer” Sunday Business Post August 2012 ;                                                                                                                                    “ I am pro-police state. I would have every Garda in the country armed. I would tolerate nothing. Zero tolerance. I don’t agree with civil liberties groups who say it’s better that 500 guilty men go free than one innocent man go to jail. I don’t agree with that.”

 

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Forgive, but don’t forget

I was once chatting to a Garda sergeant who was planning his retirement after a long career in the force. In the course of proudly recounting his unblemished record as a guard, and later as sergeant, he emphasised that he had always strived to treat everyone fairly and, as he put it, he would never pass the opportunity to;                              “straighten the load on another man’s back”

I remember thinking at the time, but I didn’t say it, that it might have been more in his line, from time to time, to lighten the load on the another man’s back, rather than just straighten it.

However, looking at that question now, I’m not sure that my mental reservation was appropriate. As law enforcers the guards have a fundamental obligation and duty to act fairly and impartially, and this duty extends to all who are involved in the administration of justice. Allowing discretion in the performance of this duty leads inevitably to corruption. Whatever about the value of forgiveness to society, it is not something which is a feature of our law.

The act of forgiving implies a level of empathy and compassion, and these are, at least to some extent, incompatible with the legal ideal of impartiality. It is understandable why it should not be open to the legal system to bestow forgiveness on a criminal. Real forgiveness can only come from the person injured by the crime, that is the victim, and from time to time that forgiveness is given.

While society also suffers from the effects of crime, in a secondary way, it would be an affront to our notions of justice if our law enforcers had the discretion to ignore the victim and forgive the wrongdoer. While our justice system does not allow forgiveness of a wrongdoer, the State itself, through the President, has the power under our Constitution to pardon or to commute or remit punishment. Such a pardon is the official act of the State forgiving a crime. It is not a declaration that the person has not committed the crime, but it means that the record of the criminal conviction is removed and there can be no further punishment for the crime.

We have a number of instances of this in Ireland. Nicky Kelly received a presidential pardon in 1992 in connection with his conviction and imprisonment over his alleged part in the Sallins train robbery. Very recently a pardon and amnesty was granted, perhaps a little late in the day, to soldiers who deserted the Irish Army to fight for the Allies during the Second World War.

The background to this was that in August 1945, the government, through an Emergency Powers Order, dealt with soldiers who absented themselves during the war by summarily dismissing them from the Defence Forces and disqualifying them for seven years from holding any State employment.

State pardons, here and worldwide, can be controversial. One common feature of such pardons is that in deserving cases they invariably come too late, often after the pardoned person has died, whether naturally or through execution. Another common feature is that they are frequently granted quite freely in questionable circumstances.

In the united States for example there are many instances of Presidents dishing out pardons to the favoured few in the days before they vacate the White house. There are instances worldwide of amnesty been given to despotic tyrants and murderers as a trade off for the introduction of democracy.

While these are pragmatic decisions of State, they do highlight the fact that allowing a discretionary interpretation of the Rule of Law is an open door to corruption.

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The Right to be forgotten

At the risk of misjudging readers,  it is probably safe to say that every one of us has at least one acutely uncomfortable memory of something we did in the past, and which is so embarrassing that it is filed away in one of the many dark uncluttered corners of our mind, where, if we’re lucky, it will lie undisturbed for years, maybe even forever.

However painful or excruciating it might be, try to bring the memory of that event to mind now, in all of its glory.

Now consider how you would feel if you were told that the entire episode, in full colour, had actually been captured on video, and that video has been posted on the internet. You are also told that any internet search of your name will bring up this video on the first search page. If you were told that there is no legal way for you to have the video removed, because to do so represents censorship, and would diminish the right to free speech, how do you think you would feel about free speech?

Thankfully, (well, hopefully) this exercise is only an imaginary scenario, but for a great many people the indiscretions of their past are beginning to catch up with them through the internet.

There is a modern compulsion to record every event, no matter how inappropriate, for posterity. (I once saw a man fall overboard into the lake while he was cleaning his boat. His wife’s first thought was to reach for the video camera, his safety came second).

The laws relating to the right to free speech and censorship, and the underlying reasoning behind these laws were developed long before the internet age, and could not have anticipated the challenges posed by the incredible immediacy and proliferation of the web. The delicate balance between the conflicting concepts of free speech and privacy has shifted, and slowly the law is beginning to respond.

One specific area which is to be the subject of new rules by the European commission is the introduction of a new right for citizens, in certain circumstances, to have information or data about them on the internet deleted. This could be photographs, videos, a posted opinion or simply personal information. These new rules are being called “The Right to be forgotten”

When these rules come in to force citizens will have the right to ask web administrators to delete data about them on websites, and the administrators will have to comply with the request, unless there are legitimate grounds to retain the information. This request to delete could be related to material posted by the individuals personally, or posted by a third party.

To a great many people who are daily humiliated on the web this will come as a very welcome relief. Many others are opposed to the plan. Some are convinced that this is the start of internet censorship. There are some merits to that argument. If your desire is to delete a drunken opinionated rant, or images of a youthful indiscretion, that seems fair enough, and could hardly be described as censorship. If, on the other hand, the motivation is to suppress truthful, valid or uncomfortable criticism, then it starts to look like censorship.

Whether we like it or not, the internet has become an alternative public record, and it will undoubtedly serve as source material for the sociologists and historians of the future. Your personal embarrassing moment should not be part of that record. On the other hand introducing rules which allows the erasing or manipulation of material which is genuinely in the public interest should be of concern to us,

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Shades of Grey

Though I haven’t read it, I admit to being delighted by the publication of the book, “Fifty Shades of Grey”.

Apparently, in the book, Dominant male gives a gift to Submissive female of a first edition of Thomas Hardy’s “Tess of the d’Urbervilles”, written in 1891, and that simple pretentious reference has led to vastly increased sales of ‘Tess’.

Anyone who buys a copy of “Tess” in hopes of finding more of the same will be disappointed but those who stick with it will discover one of the finest books ever written.

“Fifty Shades” revolves around sadomasochism, a pastime which involves taking pleasure from acts of inflicting or receiving pain or humiliation, usually as a means of experiencing sexual gratification.

The subject is one which can be very stimulating for lawyers, particularly the more academic ones, from a strictly professional point of view of course, raising as it does the all important legal question of consent.

Generally what goes on behind closed doors between consenting adults is their own business, and unless certain boundaries are crossed the law is happy enough to let them get on with it. The question of consent arises in a couple of ways.

In the UK the Courts have found, in a case involving sadomasochism, that even if consent is given, it is not a defence where the activity leads to grievous bodily harm. Then there is the question of what constitutes true consent. Our law in general interprets consent as “informed” consent, meaning that you must understand what it is you are agreeing to before it can be truly regarded as consent and you must always have the right, at any time, to withdraw that consent.

Even in more mainstream relationships the issue of consent is not always as straightforward as might be supposed. The introduction of any element of violence or intimidation can transform what was an occasion of intimacy into an assault, or even rape. It cannot be assumed that an otherwise willing partner is also consenting to the unexpected.

It is a truth universally accepted that one pervasive aspect of human relationships, especially between men and women, is failure to communicate effectively, and misunderstandings between the sexes are commonplace. Men occasionally like to believe that when a woman says “No” she really means “Yes”, and likewise, some women conclude that when a man says “No”, he just got the answer wrong because he doesn’t really understand the question.

There are many shades of grey on what is meant by “consent”. Some years ago, in Israel, a Palestinian Muslim was convicted of rape. The evidence was that he deceived the woman into consensual sex within ten minutes of their first meeting by letting her believe that he was Jewish and unmarried. Her consent was based on that belief, and since her belief was false she had never truly consented.

Moving into the area of sadomasochism the matter grows more complex. Presumably in the heat of the moment in sadomasochistic activity there is abundant scope for misunderstandings, since by it’s very nature there are obvious difficulties in establishing when the boundaries of consent have been breached. By definition one participant is submitting to painful and humiliating punishments inflicted by the other, and if, for the sake of argument, after a particularly hearty lash they start yelping for mercy, is that just part of the fun, or are they really at that point withdrawing their consent?

In ordinary circumstances asking somebody to stop beating you sends out a clear enough message, but here you have a masochist who is supposed to enjoy that sort of thing. On top of that you’re begging for mercy from a sadist. How realistic is that? And people think law is dull!

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Bullying

There is nothing new about bullying. Most of us have some experience of it, whether as victims or witnesses.

It is an unfortunate aspect of human relationships, the delinquent aspect. Our modern society recognizes that not alone does it cause untold hurt and distress to the victim, it also has a very damaging effect on society generally.

Bullying takes place everywhere, in school, at work, at home and in social situations. Society at large feels the effect of it, from absenteeism at school or work to all manner of stress related illnesses. The stresses on a victim sometimes leads to suicide.

As part of its response most societies have reacted by legislating against bullying and introducing anti-bullying practices into schools and workplaces. Some legislatures, particularly in the United States, have designated some forms of bullying as a criminal offence. In Ireland we do not have a specific crime of bullying, and neither do we have any employment laws which expressly forbid bullying.

However that does not mean that the victim has no rights. Under various employment laws the victim may have rights of redress, for instance under anti-discrimination rules, employment equality laws, health and safety laws and unfair dismissal legislation. One of the difficulties of specifically legislating against such behaviour is the problem of defining what exactly is meant by “bullying”. To some you are being bullied if you feel bullied. While that definition may have merit it is dangerously subjective. Another accepted definition is that

“ A person is being bullied when they are exposed, repeatedly and over time, to negative actions on the part of one or more other persons. Negative action is when a person intentionally inflicts injury or discomfort upon another person, through physical contact, through words or in other ways.”

While this definition is fine for a sociologist, it is simply too imprecise and subjective to be useful as a legal definition. The “inflicting injury” part is clear, (and it’s a criminal offence anyway), but should making someone feel discomfort really be against the law?

A second problem with such a definition is that it could only be enforceable in certain environments, such as schools and places of work. It would be unthinkable to have a general law in society outlawing such behaviour in every situation. If it was applied generally then many marriages, and, I suspect, every family would be in breach.

The reality is that the law is a blunt instrument and criminalizing such aspects of interpersonal relationships is not an answer.

There is another reason why anti-bullying laws are not as effective as we would wish, and that is that the bully is rarely made to suffer the consequences. While in many cases, in Ireland and elsewhere, the law may give some form of redress to a victim of bullying, generally that redress is obtained not from the bully but from the organisation that the bully is attached to. In the case of work related bullying the claim is made against the employer, though the bully is frequently a fellow employee of the victim. For students the claim is made against the school, and not the bully. Neither the employer nor the school may be aware of the bullying, yet they are responsible.

Sometimes the stock response of society is to say  ”There should be a law against that”. Sometimes there should be, but with an issue like bullying, complicated by factors of morality, personality, sensitivities, the law can rarely provide a solution.

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