1990s >> 1995 >> no-1085-january-1995

The Criminal Justice Act: The Icing on the Cake

Few issues in recent years have caused as much confusion as the Criminal Justice Bill (now the Criminal Justice and Public Order Act 1994). The deranged hangers and floggers of the Tory right believe it will curb crime. The reformers of the left claim that it destroys “democratic rights” to picket, to assemble and to demonstrate. This is fantasy, no such legal rights existed in the first place.

Just look at some of the powers the police already had.

Police powers

In 1978 the Labour government’s Criminal Law Act introduced the statuary offence of conspiracy, defined as an agreement between two or more persons to commit a crime. No crime need actually be committed for a conspiracy to have taken place, only an agreement to commit a crime. The Act does not define what constitutes an “agreement” and in practice evidence that the accused had a common aim is sufficient to imply that an agreement has been made. There need only be one accused, incidentally, as a single person can be charged with “conspiracy with persons unknown”. Effectively, then, anyone can be arrested at any time if they are suspected of having agreed to commit a crime, even if the person(s) with whom the agreement is alleged to have been made are unidentified and the crime itself has not even been committed.

In addition to this, the Police and Criminal Evidence Act of 1984 gives police officers power to stop and search persons or vehicles if they have reasonable grounds for suspecting that they will find stolen or prohibited articles. The same Act bestows upon JPs the authority to grant a warrant to enter and search premises if they are satisfied that the officer who made the application has reasonable grounds for believing that a serious arrestable offence  has been committed and that there are materials relevant to the investigation and prosecution inside. What exactly constitute “reasonable grounds” is left unclear. “Serious arrestable offence”, a central concept in the Police and Criminal Evidence Act, is defined as one which has led, its intended to lead or is likely to lead to any of the following consequences: serious harm to the security of the State, public disorder, serious interference with the administration of justice, death, serious injury, or substantial financial loss/gain. Just as under the Criminal Law Act it is the police who can decide what constitutes an agreement to commit a crime, so under the Police and Criminal Evidence Act it is the police who decide the intention and likely consequences. These “discretionary powers” made police powers of arrest and entry virtually unlimited even where no crime has been committed, and this was before the Criminal Justice Act became law.

The Public Order Act of 1986 requires that written notice be given to the police of any proposed marches and demonstrations. If the senior police officer reasonably believes that a march or demonstration may result in serious public disorder, damage to property, disruption to the community, or that it has been organised for the purpose of intimidation, he may “give directions imposing on the persons organising or taking part in the procession such conditions as appear to him necessary to prevent such disorder, damage, disruption or intimidation” (S. 12. 1b); the wording of the Act suggests that conditions may be imposed even after the march as begun.

If the senior police officer reasonably believes that powers under section 12 are insufficient for the prevention of any of the above he apply to the district council, for an order banning the march which may be granted with the consent of the Secretary of State.

Section 14 grants similar powers to the senior police officer in relation to public assemblies (e.g. picket lines, rallies and outdoor meetings, etc), though not to the extent of outright bans. The “senior police officer”, incidentally, is defined as “the most senior in rank present at the scene” (S. 14. 2a), the implication being that even a single police constable present at a public assembly (defined as 20 or more people in a public place), and who reasonably believes it to be causing a disruption, may impose on those taking part in it such conditions as appear to him or her necessary to prevent further disruption. In other words the police already had the power to break up a public meeting. It should be clear that even before the advent of the Criminal Justice Act the “democratic rights” the reformists speak of existed no more in law than they did in reality. Strikers at Orgreave and Wapping, travellers at the Beanfield and protesters at the anti-poll tax march in London, all found their “democratic rights” to picket, assemble and demonstrate instantly terminated on the arbitrary whim of police and bureaucracy without the Criminal Justice Act.

While it might be pointed out that the Act extends the power to impose banning orders on processions to cover public assemblies and introduces a new power to impose a five-mile exclusion zone on any place subject to a banning order, it is no less true that police and local authorities have already used bans and exclusion zones to prevent public gatherings on numerous occasions, even without the explicit statutory power to do so—at Summer Solstice gatherings at Stonehenge, for example—and exclusion zones have been used to prevent travellers reaching the Glastonbury festival.

Law and Order

It is with regard to travellers and their (alleged) freedoms that much of the concern about the Criminal Justice Act has arisen, but again existing legislation already makes these freedoms illusory. Under the Caravan Sites Act of 1968 designated local authorities have the power to order trespassers to leave land, while under section 39 of the 1986 Public Order Act the police may order those who trespass or damage property with vehicles to move on and arrest them if they fail to comply. The Criminal Justice Act extends the Public Order Act’s reference to “damage” to include “damage to land”, defined as widely as to include walking across a field, and extends the powers of the 1968 Caravan Sites Act to all local authorities but no longer requires that those concerned actually be trespassers in that there need not be any request from the landowner to leave; absence of consent is enough. Should the “trespassers” be there with the landowner’s permission then the landowner can be charged with offences relating to unlicensed caravan sites under an earlier (1960) Caravan Sites Act.

The Criminal Justice and Public Order Act is an attempt by a weak and unpopular government to mobilise its supporters against what appears to be a resurgent Labour Party. We need hardly point out that much of the Tories’ support comes from bigots whose tolerance level is akin to that of the Tonton Macoutes and who would more than welcome the restoration of public floggings and executions for the most trivial offences. They are, as ever, complaining that “crime”—basically anything they don’t approve of—is on the increase, and so are demanding a good dose of “law and order” (i.e. state-managed persecution), which the Labour Party have promised to give them.

The Criminal Justice Act is intended to counter this by reasserting the Tories’ traditional role as the “Party of Law and Order”. It consists of a lot of tough talk but introduces little if anything that is new, merely tightening up existing legislation and legalising policing actions that were previously of a somewhat dubious legality. Nevertheless, the bait has been swallowed by all concerned; the right have rallied to the Act as the new symbol of law and order while the left have mobilised to oppose it, providing the right with an instant enemy to unite. Thus the Labour Party are outmanoeuvred; unable to oppose the Act for fear of being portrayed as “soft on crime”, they are unable to support it either for fear of alienating their left camp-followers.

What democracy?

Just as the reactionaries of the right claim to be guardians of “law and order”, so the reformists of the left pose as the defenders of “liberty and democracy”. Despite all the left’s radical rhetoric and militant posturing the campaign to prevent the Criminal Justice Bill becoming law was a pathetic failure and, in the extremely unlikely event that the second round of this crusade succeeds in getting the Criminal Justice Act repealed, then the same powers conferred by it can quite easily be brought back onto the statute book by a series of quiet backdoor amendments to the various Acts referred to above. And even if this doesn’t happen it won’t prevent such powers being used because, as noted, they were already being used anyway.

The reformists seem oblivious to the fact that for democracy to be defended it must exist in the first place. Democracy means literally “the people rule” (demoskratos). Unless qualified (and democracy qualified is no democracy at all) “the people” must be taken to mean every single living human being without distinction of age, sex, “race”, etc; and what they rule is everything—every single aspect of their community existence. That no such state of affairs prevails within capitalism need hardly be emphasised. The political reality of capitalism is class conflict between those who work but do not own and those who own but do not work. For the most part it is the owning class who have the upper hand in this conflict by virtue of their control of the state apparatus, via their representatives in Parliament, by which they can physically force the working class to submit to their rule.

Actual physical force, however, is generally unnecessary; the owning class’s representatives issue directives in the appropriate form and make known the punishments that await those who fail to comply (this is what is meant by “law and order”). As part of this process they present these directives as being in the interests of the whole of society, an illusion reinforced by the fact that the representatives if the owning class are elected to Parliament by universal suffrage. This is the extent of capitalism’s claim to be democratic: that we may give our endorsement to one party of capitalism’s hirelings over another and in so doing give our consent to whatever these people do while in office.

This is not real democracy. This can only exist where is no ruling class and no repressive state apparatus, where the whole community, rather than a parasitic clique, have control over society’s productive and distributive resources enabling each individual to have free access to the goods and services they need to live. It will never be achieved by engaging in futile campaigns to repeal pieces of legislation that are nothing more than the legal expression of the state’s already existing arbitrary powers, powers derived from the support given to corrupt capitalist politicians in elections, which, ironically, the reformists persistently urge us to do.

Ian Simpson

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