Category: Justice

My friend James Higham – learned counsel for the other side – has replied at length to the video I posted of Philip Spooner saying, in answer to whether he was supportive of gay rights, ‘what do you think I fought for at Omaha Beach?‘, saying “Marriage is the union of two people for the purposes of procreation – end of story“. Well, gauntlet thrown, gauntlet picked up.

The first objection is this – not only was the question wrong for anyone in a polling place to ask because it presupposed that the wrong answer would impact on the person’s right to vote, something not provided for by the constitution but if it did not prevent the man from voting, then why was the question there in the first place?

If the question was asked actually inside the polling place, where people are actually putting the cross in a box, or whatever the local variant is, that would be a problem. I suspect that this was just as Mr Spooner was going into or coming out of the polling place. I’m not familiar with the procedures in Massachusetts, but the election officials in the UK would come down on you like a ton of bricks if you did that. There is no restriction, though, on speaking to people near the polling place (so long as it isn’t intimidatory). Secondly, the fact that something is not provided for in the Constitution is irrelevant. The Constitution is based on negative liberties – unless it says you must do or refrain from doing something, you can do what you want. Indeed, the tenth amendment reads

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

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There is nothing in the US Constitution that prevents two people, on the way to vote, from discussing how they will cast their ballot.

The second objection is that it is a false question. You and I know full well that to just drop in the word “equality” and ask people to say whether they favour it or not will always produce a majority opinion in favour. That, however, is not what was really being asked. What was being asked was whether the person was in favour of gay marriage or not.

This becomes a semantic question. Does gay equality mean that we must allow gay marriage? I answer in the affirmative; James in the negative. James acknowledged this, and goes on to say

This is a blurring of two separate issues:

1. Do you believe that adult gays and lesbians should be able to pursue their lifestyle, insofar as they conform to the law, without fear or prejudice being shown towards them?

Most would say yes to that.

2. Do you agree that gays and lesbians have an equal right to marry as much as any heterosexual?

I think there is a real problem with that division. Let us substitute the term ‘people with blue eyes’ for ‘gays and lesbians’, mutatis mutandur, and see what happens.

1. Do you believe that adult people with blue eyes should be able to pursue their lifestyle, insofar as they conform to the law, without fear or prejudice being shown towards them?

2. Do you agree that people with blue eyes have an equal right to marry as much as any person with brown eyes?

In the second case, it’s very obvious that the law has been constructed to favour those with brown eyes against those with blue eyes. People with blue eyes can do whatever they want so long as they conform to the law and it is that law which prevents them from doing what they want to do. The law is cast unfairly.

Moving on, James says:

Here’s the logical fallacy. Same sex cannot marry, by definition. Here is the Merriam-Webster definition [until 2003, when the PCists got in and forced it to be changed]:

Main Entry: marriage
Pronunciation: ‘mar-ij also ‘mer-
Function: noun
Etymology: Middle English mariage, from Old French, from marier to marry
Date: 14th century
1 a : the state of being married b : the mutual relation of husband and wife : WEDLOCK c : the institution whereby men and women are joined in a special kind of social and legal dependence for the purpose of founding and maintaining a family
2 : an act of marrying or the rite by which the married status is effected; especially : the wedding ceremony and attendant festivities or formalities
3 : an intimate or close union

To which I say nonsense. All James has done is chosen a definition of marriage that he likes. I could simply choose a different one, or say that a family does not necessarily include children, or say that the definition was changed in 2003 to reflect changes in how the term is used.

Not only that but polls such as this one show that the majority do not accept that what gays have is a marriage – it’s a civil partnership. Even if they did achieve a majority that way, it is still pointless because it is like changing a science text to say that the sun rises in the west, just because a concerted propaganda campaign has convinced people of it.

In classical Greece, the household included slaves; in mediaeval Europe, servants. It can be extended or nuclear. The way in which we live changes; terms like ‘family’ are subjective in meaning.

The third objection is that not only are they blurring the question and presenting a false construct as a valid alternative but they are also lying about history. On the Meriam-Webster page, a commentator said that the only reason for that definition of marriage was that the man who wrote it was a fundamentalist Christian.

James then goes on to detail how marriage was seen as between a man and a woman in classical Greece, pharaoic Egypt and so on. Certainly, marriage was conceived of as between a man and a woman before Christianity appeared. I’m not sure that the construct is false – morality in the west is at least based on Judaeo-Christian values, and so, as marriage in those value is generally conceived of as being between a man and a woman, that it persists is no surprise. Judaeo-Christian values may be based on other values, or incorporate features of them, but the absence of many temples to Osiris in central London would suggest that the Egyptian mythos is not a major force. Marriage as described pre-dates Christianity, but it could have died out and Christianity was implemental in seeing that it did not die out. The inflexibility can be attributed to the fundamentalism.

In any case, I don’t really care what the ancients considered moral. Quite apart from their genocide, slavery and credulousness, to define one’s morality by any other’s actions, past or present, is to give up your rationality.

James then goes off on something of a flight of fancy, suggesting that ‘socialists’ are trying to rewrite history. Er… no. As I’ve tried to show, past definition does not apply today to a subjective term. Apparently, we are aiming for

1) Abolition of all ordered governments
2) Abolition of private property
3) Abolition of inheritance
4) Abolition of patriotism
5) Abolition of the family
6) Abolition of religion
7) Creation of a world government

I’m not sure where this came from – no link provided that I can see, but it is a load of garbage. (1) and (7) cancel each other out, the Christian Socialist Movement would have something to say about (6). (3) is a subset of (2), and that’s something than could be attributed to communists, not socialists or social democrats. Quite how we would go about abolishing feelings of kinship – (4) and (5) is beyond me. They survived the USSR, after all.

Ultimately, I see marriage as a contract between two adults. It’s no-one’s business how or why they enter into that contract. The only arguments other than ‘we don’t like gays’ against gay marriage have to do with marriage necessarily being a vehicle for procreation. That is a stupid thing to say – many couples can’t have children, many don’t want children.

xD.

In a post on her website¹, Nadine Dorries MP makes a series of contentions concerning the law on assisting suicide that I believe to be mistaken.

The first contention is that the 1961 Suicide Act clearly and unambiguously “states that those who aid, abet, counsel or procure someone else’s suicide, can be prosecuted and punished with up to 14 years in jail.”

That is true; however, section 2 (4) of the Act says that

no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.

Indeed, the case made by Purdy and the instructions to the DPP revolve around this section. As I understand it, the contention, which the Law Lords supported, was that article 8 of the European Convention on Human Rights, as Lord Neuberger of Abbotsbury said,

entitle[s] her [Purdy] to be provided with guidance from the Director as to how he proposes to exercise his discretion under section 2(4) of the 1961 Act

The second contention is that “clarification of the existing law can only mean one thing: assisting suicide is illegal and prosecutable with up to 14 years in jail.” In other words, the instruction to the DPP means that the law can only be clarified in one direction, which would increase the probability of a prosecution (and, so, limit the number of instances of people travelling to Dignitas). Again, that is simply not true. That is one possible outcome; however, on the basis of what reasons not to prosecute in these cases that the DPP (and his predecessor) has published, it seems equally likely that the public interest will not be seen to favour any tightening of the implementation of the law.

The CPS list a series of factors in the Full Code Test that will make a prosecution more or less likely. One of the points made in the ruling is that being an accessory to suicide is the only crime of aiding, abetting, counselling and encouraging where the principal is not guilty of a crime, suggesting that (at least possibly) those points may not be appropriate.

Ms Dorries, in the third contention, suggests that any deviation from more prosecutions would be the creation of new law (“Keir Starmer cannot change this law without a vote in Parliament. He can only define policy one way and that would be for the law, which has until now been quietly passed over by the authorities, to be paid due attention in each and every case”). This is simple rubbish. It seems worthwhile to quote Viscount Dilhorne, quoted by Lord Hope of Craighead in the ruling:

“In 1951 the question was raised whether it was not a basic principle of the rule of law that the operation of the law is automatic where an offence is known or suspected. The then Attorney-General, Sir Hartley Shawcross, said: ‘It has never been the rule in this country – I hope it never will be – that criminal offences must automatically be the subject of prosecution.’ He pointed out that the Attorney-General and the Director of Public Prosecutions only intervene to direct a prosecution when they consider it in the public interest to do so and he cited a statement made by Lord Simon in 1925 when he said:

‘… there is no greater nonsense talked about the Attorney-General’s duty than the suggestion that in all cases the Attorney-General ought to decide to prosecute merely because he thinks there is what the lawyers call a case. It is not true and no one who has held the office of Attorney-General supposes it is.’

Sir Hartley Shawcross’s statement was indorsed, I think, by more than one of his successors.”

Ms Dorries’ fourth contention is that the legalisation of assisted suicide will be the first step towards state-assisted suicide. I say that it is not the first step but the same thing. If it is legalised in the UK, it will like as not be available, at least for some people, with state support. If nothing else, there will be heavy state regulation and oversight. I see no difference in the two instances other than an attempt at implying that the NHS is going to start bumping off people who have no family. Ms Dorries evidently has a low opinion of doctors if she thinks they will routinely tell people to die because they’re holding up a bed; indeed, the possibility for doctors to do that now to the relatives of someone in, say, a persistent vegetative state exists in practice through the similar device of a DNR.

The fifth contention is that “the first job of Parliament is to protect the majority and the vulnerable”. This is rot; those are two jobs which could well be, and often are, at odds with one another.

The sixth contention is that those who want to change or clarify the law on assisted suicides might be better off “to let sleeping dogs lie”.

The idea of jury nullification is not new; it would be a stone-hearted jury that convicted Omar Puente of helping his wife to die. Indeed, one of the factors in the Full Code Test against a prosecution being brought is the likelihood of a conviction. That, at best, is an unknown, particularly if any weight is given to recent polls on the subject.

Ms Dorries might do well to remember a line by Abraham Lincoln:

“The best way to get a bad law repealed is to enforce it strictly.”

I have not dealt with whether there should or should not be a change in the law; I have merely pointed out what I believe to be mistakes in Ms Dorries’ reasoning. Given her stance on abortion, her stance on assisted suicide is of no surprise. For the record, I would probably be in favour of relaxing the law on assisted suicide.

The text of R (on the application of Purdy) (Appellant) v Director of Public Prosecutions (Respondent) is on the House of Lords website and the (very short) Suicide Act 1961 is on the OPSI website.

There is a certain irony on the last ruling by the Lords of Appeal in Ordinary in the House of Lords, thanks to the creation of the Supreme Court, is on assisted suicide.

xD.

1 – No comments or trackbacks mean it’s not a blog, just a regularly updated website.

PS – One of the pitfalls I have fallen into, blogging-wise, is not doing enough research. However, I’m not an MP and not running a campaign on this issue, unlike Ms Dorries. Indeed, the article she links to in the Daily Mail, talking about a Bill she is to propose to make it clear that a prosecution must be brought in all cases of assisting suicide, shows that many of the contentions she makes in the article on her website are flawed. I’m prepared to accept that I’m wrong on the detail, but I think I am right in saying that the situation is rather more complicated than Ms Dorries would have us believe. To the lawyers (there’s at least four) who read this blog – I appreciate corrections!

Firstly, this isn’t murder. Battery, yes; manslaughter, perhaps; conduct unbecoming, definitely. We do not have enough evidence yet to say that the actions of the police lead to Ian Tomlinson’s death. The fact that A happened after B does not imply that B caused A. It may be that Mr Tomlinson’s sand had run out, regardless of the intervention by the police officer. It also does not look like the police officer intended to kill Mr Tomlinson. Manslaughter may be a possibility, but the people saying ‘it was murder’ are just flat wrong.

At the same time as one side of the political debate has sought to say, straightaway, that this is murder, another side has tried to play the whole thing down. It doesn’t matter – from the point of view of the principle – whether Mr Tomlinson died or not. As Septicisle points out over at Liberal Conspiracy, the copper in question could not reasonably have expected pushing someone over to result in death.

There is a problem with CCTV and, indeed, all forms of photography, whether still or moving. We simultaneously want the right to take pictures wherever we want without interference by the state (I recommend looking at Matt Wardman’s list of incidents) and we want a right to privacy in the public space. I add a couple of riders to that – firstly, the public space bit means that Max Mosely’s sexual preferences should have remained private. Secondly, the problem of the gutter press publishing pictures of celebrities in unfortunate positions is a function of the lack of responsibility of said outlets and our own (media-driven) obsession with celebrity rather than photography.

Given that a private organisation, Google, now has the capacity not only to photograph us all from above but, street by street, from the road, the debate shifts as the power to accumulate a huge amount of photographic data on just about everyone is no longer solely in the hands of the state. I think this helps frame the debate in a more helpful light as the widening of the capacity removes some of the noxiousness that occurs whenever ‘the state’ comes into debate.

One of the distinctions that has been made for private and state cameras is that we have a choice about going into private shops and so on but do not have that choice for the public highway. That is a false choice, as nigh-on every convenience store, supermarket and pub in London and, I suspect, most built-up areas of the country have CCTV and it can be pointed from a private building into a public space. There are also private spaces that have a public function – for instance, a football match at any large stadium will be covered in cameras.

We need to decide how we resolve the tension between right to photograph and right to privacy in public before we address CCTV. I don’t want to go into it at length, but I favour the former as the restrictions on public space required by the latter I find unpalatable and unworkable.
Fundamentally, what is the difference between the images caught of a police officer attacking Mr Tomlinson and the (putative) images of a civilian attacking a police officer? Fundamentally, what is the difference between the government saying that it is wrong to photograph its agent (in the form of a police officer) in delicto flagrante and the assertion of a right to privacy by a celebrity?

There is no difference. In the latter case, there are issue of reasonableness but they have more to do with excess and aggressively shoving a camera in someone’s face than the principle itself. There are risks in having a large number of cameras around the country. These can be managed and reduced, but, in this instance, the state has been made a legal person like any other – or at least, like Google – by the march of technology. Particularly given the footage that has emerged of the police behaving in what is at best a stupid manner and may well be a criminal manner, the need to be able to show what the police are doing.

Newsflash to the right: just because someone’s in a police uniform doesn’t mean that they’re Dixon of Dock Green.
Newsflash to the left: just because someone’s in a police uniform doesn’t mean they’re a member of Birmingham CID.

The police are sometimes a bit naughty. Well, stop the presses. No, m’lud, he fell down the stairs before accidentally brutally stabbing himself to death while shaving.

Indeed, while it shouldn’t happen and other officers there should have stopped him, it’s no great surprise that when you put a load of people in uniform and then alternate them between sitting in vans for ages and dealing with the great unwashed, things go a little bit Zimbardo.

There has been an amount of soul-searching given that the right would not normally react in a positive way to something like this; I’m going to point you in the direction of our Hellenic chum, Mr Eugenides.

The police are, amazingly, humans. As I said earlier on, it should be no surprise that the police are subject to all the other features, good and bad, of the H. sapiens. For the record, I suspect that most but not all police are not in the habit of hitting someone with their truncheon for no good reason. For the record, I suspect that most but not all police are not racists.

It only takes a few people to give a larger group a bad name, whether their name is Constable Savage or their penchant is for throwing bricks through windows. As ‘Various People Against Nasty Things (Hijacked by Nutty Lefties)’ does not, as yet, have a standing army, I’m going to focus on the police as they are present everywhere and are rather more important to the cohesiveness of society.

Fortunately, the police are a lot better than they used to be but incidents like the death of Ian Tomlinson (or, rather, his being hit with a truncheon) don’t only happen when there’s a camera watching.

Opposition to paperwork in all its forms has become something of a leitmotif for many parts of the political spectrum, as is opposition to ‘heavy-handed Whitehall diktat’ or words to that effect. Certainly, there is a balance to be struck, but I hope that this incident shows that we do need to find a more satisfactory answer to quis custodiet ipsos custodes? – who watches the watchers? – than the Guardian and Indymedia. That means paperwork and that means procedure and that means form-filling and that means having a watching brief to make sure that it’s not going to far in either direction. That equally applies to social services, teaching, medical care and so on.

I have been on protests for all sorts of things and I rather suspect I will continue to protest for all sorts of things. For the record, I’m a fairly law-abiding sort of fellow. I have been known to attend protests without, I might add, the slightest intention of throwing anything at anyone. I only mention this because I recall being shoved by a police officer on one occasion; I was walking, with a friend, right at the back of a block of demonstrators. The police wanted us to go a bit more quickly – a few of us at the back were dawdling – but instead of asking us to stay with the rest of the group, they pushed us. Not violently, not with any force of any substance, but enough to get the message across.

This raises a couple of issues.

Firstly, the rationale for protesting. For a lot of people – think of the huge protest against the war – it is a bourgeois, middle-class activity on a par with writing a letter to your MP. It’s not something you do very often, it’s not something you really expect to achieve anything but at least you’ve had your say and you feel like you’ve had something to do with democracy, or something similarly nebulous, registered your protest and hopefully brought some publicity to your cause. There is a section that does want to throw bricks around and/or start the revolution, but it is relatively small. What the police don’t seem to have realised is that they push the former group into the latter group before they even arrive at a protest if they’ve seen pictures of the last protest and are expecting trouble.

Partially, there is a disconnect between those who wish to protest peacefully and those who are going to cause trouble. That isn’t going to be resolved any time soon. In the meantime, the police are going to need to rethink their tactics – yes, kettling – but also the attitudes of individual officers, on the ground, towards protesters. For a start, they have to explain this photo. Not the fact that the officer in question is a medic, but that the officer in question has baton raised and that this is not an isolated incident.

The justification of protecting public order seems to be pretty weak, given that SOCPA has been kicked in the teeth by the displaying the flag of the LTTE – a proscribed, terrorist group within the EU, USA and other countries – on Parliament Square without the necessary permissions to be even protesting under the Act.

Secondly, failure. One of the most scandalous parts of this whole, sorry tale was that the police made up a story and then passed it onto the papers, who dutifully reported it without checking the facts, with no amendment made until the infamous film footage came to light. Not only that, but the IPCC seemed to think that the CCTV cameras in the City of London – an area liberally coated in them and other security apparatus – were all broken that day. It needs to be possible for organisation to say ‘we screwed up’ or ‘we don’t know’ without howls of derision from the media and, indeed, the blogosphere.

This the operative White House position. All other statements are inoperative.

– Ronald L. Ziegler, after Watergate was uncovered.

Similarly, you could look at the Menezes case, or the Lawrence case, or Blair Peach, and so on. I don’t know what the answer here is. Some of the questions and some of the answers might be above, but ultimately the police need to try to change the attitude whereby rule-breaking by officers is not reported. That has been going on for some time, but pressure must be maintained for it to continue and the change must respond to the current situation.

Our sympathies must and do go to the family and friends of Mr Tomlinson. However, the last few minutes of his life are, I’m afraid, unremarkable except for the issues that they raise. To lose sight of those issues and focus on the personal tragedy for Mr Tomlinson’s kith and kin would be to miss the opportunity that events have forced upon us.

xD.

Update: Bloggerheads – I’m not standing for this. Why were police officers going around with their numbers covered? Why were they allowed to? Why were they attacking people who weren’t doing anything?