The Criminalisation of Political Dissent: Huckstering the Law

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The Criminalisation of Political Dissent: Huckstering the Law

22 October 2012

By Brenna Bhandar

“The sub­ver­sion of law begins with the reduc­tion of polit­ics to a crime.” — K.G. Kan­nabiran¹

“What is never ques­tioned is the bour­geois state of law upon which mod­ern cap­it­al­ism depends. This remains the sac­red cow that even the most rad­ical crit­ics from the likes of Occupy Wall Street and the World Social Forum dare not touch.” — Sla­voj Zizek²

***

On Octo­ber 19^th, Trenton Old­field was sen­tenced to six months in prison for his protest against elit­ism that saw him dis­rupt­ing the Oxford Cam­bridge boat race. He was found guilty of caus­ing a pub­lic nuisance.

Many oth­ers have remarked on the out­rageous­ness of a prison sen­tence for this act of protest, this act of polit­ical dis­sent. It is entirely dis­pro­por­tion­ate, and reflects a per­ceived increase (more on that below) in the crim­in­al­isa­tion of polit­ical protest by a state bent on pun­it­ive aus­ter­ity meas­ures that are affect­ing the poor, the unem­ployed, work­ing peoples, peoples with dis­ab­il­it­ies, single moth­ers, and other vul­ner­able and mar­gin­al­ised com­munit­ies entirely disproportionately.

The fact that the judi­ciary is com­prised of 78% of Oxbridge gradu­ates has been poin­ted out, draw­ing atten­tion to a ser­i­ous and well entrenched prob­lem, the lack of what is obliquely referred to as “diversity” on the bench, and the interests that this major­ity of white elite men ulti­mately serve. The epi­stem­o­lo­gical ques­tions related to the capa­city of judges to under­stand the life exper­i­ences, not to men­tion the polit­ical and legal con­scious­ness of the sub­jects who appear before them has led to a glob­al­ised field of judi­cial (re)-education pro­grammes and aca­demic pro­jects that re-​write judg­ments from fem­in­ist and anti-​racist per­spect­ives as a way of ima­gin­ing a judi­cial sys­tem that would be more rep­res­ent­at­ive and demo­cratic. These pro­jects are import­ant and their value in real­ising change should not be underestimated.

How­ever, I want to focus here on some­thing else. I want to focus on the rela­tion­ship between the right to protest, polit­ical dis­sent, and private prop­erty (or, the bour­geois state of law). In my view, Zizek has a good point. The right to protest and to not be crim­in­al­ised as a res­ult of said protest needs to be artic­u­lated as oppos­i­tion to a legal sys­tem whose raison d’être is to pro­tect a sys­tem of private prop­erty. Private prop­erty here is under­stood as being inclus­ive of many dif­fer­ent things, includ­ing the prop­er­ties that attach to indi­vidual own­er­ship and wealth. These prop­er­ties are affect­ive and intan­gible and yet, have the most mater­ial of con­sequences. The sense of enti­tle­ment, priv­ilege, secur­ity and power that attach to actual rela­tions of own­er­ship con­sti­tute the régime of private prop­erty that our cur­rent sys­tem of law works to uphold in man­i­fold ways. As Bentham put it so well, the primary pur­pose of law is to provide secur­ity for private prop­erty interests.

So, this struggle to stop the crim­in­al­isa­tion of polit­ical dis­sent, our out­rage at sen­tences such as the one handed down today,³ can­not only be about the right to polit­ical protest itself, and the desire for a more just sys­tem that does not come down so viciously on people protest­ing the rise in stu­dent tuition fees, aus­ter­ity, the war in Gaza, police bru­tal­ity, etc. While that would cer­tainly be wel­come, there is some­thing rather more rot­ten in the state of the law itself. The very sub­stance of the laws used to crim­in­al­ise polit­ical dis­sent require a robust anti-​capitalist, anti-​racist, fem­in­ist cri­tique that was once par for the course in both crit­ical legal schol­ar­ship, crit­ical race the­ory, and polit­ical activism.

Let’s take the crime of pub­lic nuis­ance as an example. It has its ori­gins in a private law action for inter­fer­ence with one’s prop­erty, and then drifts into the pub­lic sphere as a means of crim­in­al­ising improper con­duct (along with inter­fer­ence with private prop­erty). This is not only a mat­ter of Justice Molyneux hav­ing mis­con­strued who con­sti­tutes the “pub­lic” in con­sid­er­ing who suffered the harm in this case. Nor is it solely about a judge uphold­ing the interests of the elite who were engaged in a sport­ing event, over the rights of Trenton Old­field to express polit­ical dis­sent of myriad forms of inequal­ity and injustice. The crime of pub­lic nuis­ance has its ori­gins, and remains in essence, a law con­cerned with pro­tect­ing private prop­erty and notions of pro­pri­ety. For this reason and oth­ers, the crime of pub­lic nuis­ance should be abol­ished.⁴

The crime of pub­lic nuis­ance has an inter­est­ing his­tory. The word itself, spelt ‘nusance’ until the 18^th cen­tury, “ori­gin­ally meant no more than ‘harm’.⁵ Theft con­tam­in­ates its ety­mo­lo­gical roots, law­yers hav­ing stolen the term “from ordin­ary speech, assigned [it] a tech­nical mean­ing, and then accused the man in the street from mis­us­ing [it].”⁶ Nuis­ance ori­gin­ates dur­ing the feudal era as a private law action in tort, to pro­tect indi­vidu­als from any inter­fer­ence with their prop­erty short of actual dis­pos­ses­sion. The tort of nuis­ance grows as a type of action between neigh­bors, but as early as the end of the 13^th cen­tury, the private con­cern with prop­erty had drif­ted into the concept of pub­lic nuis­ance. The main con­cern was with the com­mon bene­fit and the obstruc­tion of high­ways by agri­cul­tural waste and efflu­ence. It is not until the 16^th cen­tury that, in the local crim­inal courts of the King, what are now con­sidered to be ‘pub­lic wel­fare offences’ come to include a wide range of actions con­sidered to be harm­ful to the community.

If words like “com­mon bene­fit” and “com­munity” are mak­ing you feel warm with nos­tal­gia for a bygone era, please wipe that notion out of your head. Included in the list of ‘pub­lic wel­fare offences’ was the pun­ish­ment of “com­mon scolds.” A com­mon scold was by defin­i­tion a woman, an angry, trouble­some woman who would dis­rupt the peace in her neigh­bour­hood. Pun­ish­ment was by duck­ing, a form of tor­ture reserved for women, exem­plary of the kind of miso­gyny that the law once sanc­ti­fied. By the 18^th cen­tury pub­lic nuis­ance begins to be used to dis­cip­line all sorts of beha­viour, includ­ing blas­phemy, inde­cent beha­viour, pub­lish­ing obscene books, and even selling unwhole­some food.⁷ The array of con­duct covered by pub­lic nuis­ance, a cat­egory that was treated as infin­itely expand­able, more elastic than any other com­mon law doc­trine is simply stag­ger­ing. The cat­egory becomes a catch-​all for any crimes not covered under any other exist­ing offences. Spen­cer notes that by the early 19^th cen­tury, “the expres­sion ‘pub­lic nuis­ance’ is used more or less to describe the power of the King’s Bench and it’s suc­cessors to pun­ish any beha­viour, whether pre­vi­ously thought crim­inal or not, which is felt to be harm­ful to the pub­lic.“⁸

The crime of pub­lic nuis­ance was used pro­lific­ally in the colo­nial con­text. And while there has been an intens­i­fic­a­tion in the length of prison sen­tences handed out to those involved in the riots of August 2011, and the stu­dent protest­ors, the crim­in­al­isa­tion of polit­ical dis­sent in the UK has a long his­tory else­where, a his­tory in which the colon­ies func­tioned as a legal labor­at­ory for meth­ods of sup­pres­sion and sub­jug­a­tion. Michael Ander­son notes that after 1870 in India, pub­lic nuis­ance crimes “rep­res­en­ted the most fre­quent and sys­tem­atic applic­a­tion of police power under colo­nial rule.”⁹ If we want to think, his­tor­ic­ally, about the per­ver­sion of the term “pub­lic interest” one need only look to the colo­nial con­text. It is in colo­nial India, as in Man­date Palestine (and in present day Israel/​Palestine), that land, water, resources, and thus the live­li­hoods of people were and are routinely appro­pri­ated in the name of the “pub­lic” interest and for “pub­lic use”. The concept of the “pub­lic” in colo­nial set­tler con­texts is as tain­ted as the concept of sov­er­eignty that rep­res­ents set­tler interests at the expense of indi­gen­ous ones. When we think about the prop­er­tied nature of white­ness that endows par­tic­u­lar com­munit­ies with such a strong sense of enti­tle­ment to eco­nomic, social, cul­tural and polit­ical priv­ileges over oth­ers, colo­nial his­tor­ies and his­tor­ies of slavery that have been fun­da­mental to the devel­op­ment of Eng­lish law and cap­it­al­ism can only deepen our under­stand­ings of con­tem­por­ary judg­ments about what the interests of the “pub­lic” are and con­cep­tu­al­isa­tions of pub­lic space.

If the 18^th cen­tury was a time when the crime of pub­lic nuis­ance pun­ished beha­viour deemed to be improper, lack­ing in the pro­pri­ety expec­ted of loyal sub­jects, the 19^th cen­tury wit­nesses a coup­ling of the dis­cip­lin­ary dimen­sions of pub­lic nuis­ance with the use of this offence to pro­tect private indi­vidu­als from inter­fer­ence with their rights in real prop­erty. A private cit­izen, by the 19^th cen­tury, could obtain an injunc­tion against a pub­lic nuis­ance if it threatened phys­ical dam­age to his property.

We have seen the effects of this use of pub­lic nuis­ance in recent injunc­tions sought to sup­press polit­ical protest on cam­puses, and against the Occupy protest­ors at St. Paul’s. Inter­est­ingly, and as a small cor­rect­ive to Zizek’s cri­ti­cisms, the Occupy Lon­don protest­ors did attempt to dis­rupt and chal­lenge the prop­erty rights of the City of Lon­don by assert­ing an indef­in­ite right to occupy. Prop­erty rights are never indef­in­ite, but exist as ascer­tain­able peri­ods of time, and thus by chal­len­ging the tem­poral frame­work of prop­erty the Occupy protest­ors attemp­ted, albeit unsuc­cess­fully, to alter the very fab­ric of prop­erty law.

Nearly if not all of the type of pub­lic nuis­ance offences that the law was his­tor­ic­ally inten­ded to apply to have now been covered by stat­ute. The prof­lig­ate doc­trine of health and safety breeds new rules and reg­u­la­tions daily it seems; and crim­inal law offences have become increas­ingly codi­fied. What is left, after all of this con­tent has been emp­tied out is a dan­ger­ously elastic form of crim­inal offence that can lit­er­ally be applied to any sort of con­duct. And with this, we arrive at Oldfield’s sen­ten­cing hearing.

The Court found that Old­field “decided that he had the right to stop mem­bers of the pub­lic enjoy­ing a sport­ing com­pet­i­tion which they had chosen to go and watch.” Justice Molyneux tells Old­field in no uncer­tain terms that “he did not have that right…” and that he had “given him­self the right to spoil the enjoy­ment of oth­ers.” Here the prop­erty interests at stake appear quite clearly. Old­field is guilty of dis­rupt­ing the row­ers’ sense of enti­tle­ment to carry on with their sport­ing event over and above his right to par­ti­cip­ate in dir­ect polit­ical action, shored up by years of cus­tom­ary use, and ren­der­ing their right to use the river as they wish, accord­ing to their long-​held tra­di­tion, insec­ure.

Old­field not only viol­ated and dis­rup­ted these long held priv­ileges, but he is described as hav­ing “given him­self the right” to do so. Old­field is a lone indi­vidual who ‘gave him­self the right to protest’, he is not a con­cerned indi­vidual express­ing a polit­ical pos­i­tion that res­on­ates with thou­sands upon thou­sands of people who have taken to the streets, who have writ­ten, who have rung their hands in the air, who have organ­ised con­fer­ences, demon­stra­tions, strikes, poetry read­ings, art install­a­tions, made films, all in order to protest gov­ern­ment attacks on social ser­vices, edu­ca­tion, and the polit­ics of aus­ter­ity generally.

Marx illu­min­ated how the pas­sage to a lib­eral demo­cratic cap­it­al­ist soci­ety essen­tially pulls a veil over actual inequal­it­ies in power and mater­ial wealth, leav­ing us with the illu­sion of equal­ity between ostens­ibly sov­er­eign indi­vidu­als. The notion that Old­field was ‘pre­ju­diced’ (against the Oxbridge row­ers) reflects a con­cer­ted effort to ignore the obvi­ous dif­fer­ences in priv­ilege and wealth of the par­ti­cipants in the race and those on whose behalf Old­field was protest­ing. In the con­text of this pub­lic nuis­ance action, all parties are on equal foot­ing, the row­ers from Oxbridge and Cam­bridge as vul­ner­able to suf­fer­ing the effects of pre­ju­dice as any other group of people.

Of course it would be just if the State were to stop crim­in­al­ising polit­ical protest­ors, and this is neces­sary, at a min­imum. But polit­ical trans­form­a­tion lies in chal­len­ging the nature of private own­er­ship that per­vades the very form that law takes. In the Eco­nomic and Philo­sophic Manu­scripts of 1844, Marx writes that the “huck­ster­ing with landed prop­erty, the trans­form­a­tion of landed prop­erty into a com­mod­ity, con­sti­tutes the final over­throw of the old and the final estab­lish­ment of the money aris­to­cracy.” Huck­ster­ing, Marx tells us, is what defines the very essence of own­er­ship (whether it’s feudal or cap­it­al­ist, of land or money).

Per­haps huck­ster­ing is also an apt and ana­log­ous term for the use of law to crim­in­al­ise polit­ical dis­sent. What we are being offered here (what is being peddled) is a ver­sion of the law that deems it crim­in­ally improper to dis­rupt the enti­tle­ment of the wealthy to enjoy sport, to assert a noisy, vis­ible pres­ence in pub­lic space, to chal­lenge the increas­ingly private own­er­ship of our uni­ver­sit­ies. Per­haps one place to begin in recon­cep­tu­al­ising a law of pub­lic harm is to ima­gine laws that are not tied to the pro­tec­tion of prop­erty in all of its glor­i­ous diversity, but con­ceives of pub­lic harm as that which dam­ages the life chances of that major­ity liv­ing on the mar­gins of socio-​economic privilege.

Brenna Bhandar is Lec­turer in Law, Queen Mary, Uni­ver­sity of London.

http://criticallegalthinking.com/2012/10/22/the-criminalisation-of-political-dissent-huckstering-the-law/

End the Criminalisation of Protest: The Case of Trenton Oldfield

19 October 2012

By Deepa Naik

This morn­ing (19 Octo­ber 2012) Trenton Old­field will be sen­tenced at Isle­worth Crown Court for his protest at the Oxford and Cam­bridge Boat Race. He faces a poten­tial cus­todial sen­tence for his dir­ect action against gov­ern­ment cuts and a cul­ture of elit­ism in the UK. This state­ment was writ­ten, together with Defend The Right To Protest calls for an end to the crim­in­al­isa­tion of protest. Select list of sig­nat­or­ies below. Full list here.

***

On the 7^th of April 2012, Trenton Old­field under­took a direct-​action protest at the Oxford and Cam­bridge Boat Race. The aim of his protest was to focus atten­tion on the long-​standing and entirely unjust inequal­it­ies in Brit­ish soci­ety that are being severely exacer­bated by gov­ern­ment cuts and reduc­tions in civil liber­ties. Trenton chose the Oxford and Cam­bridge Boat Race because it is a sym­bol of class, priv­ilege and elit­ism in Britain.

An aston­ish­ing 70% of the cab­inet in the cur­rent gov­ern­ment are Oxford or Cam­bridge gradu­ates. This gov­ern­ment is pro­tect­ing the priv­ileges of the wealthy while cut­ting the essen­tial neces­sit­ies of the major­ity and the poor and redu­cing people’s rights and freedoms. In the three days before Trenton’s protest, the coali­tion gov­ern­ment (1) received royal assent for its bill to privat­ise the NHS, (2) intro­duced the Com­mu­nic­a­tions Data Bill to leg­al­ise sur­veil­lance of all digital com­mu­nic­a­tions of UK sub­jects, and (3) called on people to ‘shop their neigh­bours’ if they sus­pec­ted they might protest at the 2012 Olympic Games. Trenton’s protest aimed at draw­ing atten­tion to these injustices. He swam into the course of the boat race. The race was hal­ted and restar­ted 25 minutes later. The action was seen by an inter­na­tional audi­ence but it affected just 18 row­ers and a hand­ful of event organ­isers on a closed river, on a long week­end. The direct-​action protest was wholly con­sist­ent with Trenton’s dec­ade+ work in Lon­don on address­ing this city’s unne­ces­sary poverty and inequal­it­ies. The audi­ence for the free event exper­i­enced a minor delay of 25 minutes. The BBC cov­er­age ended at its pre-​scheduled time-​slot. Not a single com­plaint was received from the pub­lic by either the Met­ro­pol­itan police or the BBC.

Trenton was ini­tially charged with Sec­tion 5 of the ‘pub­lic order act’. Hansard reports reveal that gov­ern­ment min­is­ters asked the police com­mis­sioner to increase the charge so that a cus­todial sen­tence could be achieved. On the morn­ing of his first court appear­ance (23 April 2012) Trenton’s charge was sig­ni­fic­antly increased via the ancient com­mon law charge of ‘pub­lic nuis­ance’ under which con­vic­tion can res­ult in life in prison. On the 26 Septem­ber 2012 Trenton was found guilty of caus­ing ‘pub­lic nuis­ance’ for under­tak­ing his protest.

The recent con­vic­tion and sen­ten­cing of Rus­sian fem­in­ist rock col­lect­ive Pussy Riot to two years in prison for their protest was rightly met with shock and anger for the lack of tol­er­ance towards dis­sent under Putin. The very same lack of tol­er­ance towards dis­sent seems to be hap­pen­ing in Bri­tain as Trenton waits for sen­ten­cing on the 19^th Octo­ber 2012.

Defend the Right to Protest (http://​www​.defendtheright​to​protest​.org/) extend our solid­ar­ity to Trenton and whole­heartedly believe that he should not have faced crim­inal charges for exer­cising his right to protest. We are con­cerned about the change in the ori­ginal charge seem­ingly due to polit­ical and media pres­sure. To us it is clear that this protest against inequal­ity and elit­ism does not war­rant a cus­todial sen­tence, least of all pos­sibly years in prison. Defend the Right to Protest (http://​www​.defendtheright​to​protest​.org/) are also alarmed that this charge might be levied against pro­test­ers in the future. The only motive we can see for the CPS select­ing this out­dated legis­la­tion is that it offers courts the chance to hand down sen­tences up to life in prison.

After his ori­ginal ver­dict Trenton made the fol­low­ing statement:

“As inequal­it­ies increase in Bri­tain and across much of the world, so does the crim­in­al­isa­tion of protest; my solid­ar­ity is with every­one every­where work­ing towards more equit­able societies.”

We urge an end to this wholly inap­pro­pri­ate over-​punishment of Trenton and the crim­in­al­isa­tion of protest.

Han­nah Dee, Chair, Defend the Right to Protest

John Car­los, 1968 Olympics Black Power salute

Adbusters, Cul­ture­Jam­mers

Pragna Patel, Southall Black Sisters

David Bur­gess, 2003 ‘No War’ Sydney Opera House

Danny Dorling, author Inequal­it­ies: Why Social Inequal­it­ies Persist

Gloria Mor­rison, Joint Enter­prise Not Guilty By Association

John Pil­ger, journ­al­ist and author The Rulers of the World

Mai Pal, Anti-​capitalist Initiative

Marc McGowan, Artist Taxi Driver

Fanny Malinen and Steve Rushton, Bread and Circuses

David Wear­ing, Depart­ment of Devel­op­ment Stud­ies, SOAS

Car­oline Day, Save Leyton Marshes

Dan Hind, author The Return of the Public

Dave Zirin, sports writer, act­iv­ist, author Bad Sports: A People’s His­tory of Sports

Illan Wall, Crit­ical Legal Thinking

John Pil­ger, journ­al­ist and author The Rulers of the World

Mike Wells, Games Monitor

Kris O’Donnell, Occupy London

Les Levidow, Cam­paign Against Crim­in­al­ising Communities

Marc Perel­man, author Bar­baric Sport: A Global Plague

Mike Davis, author Evil Para­dises: Dream­worlds of Neoliberalism

Nad­ine O’Connor, Cam­paign dir­ector Fath­ers 4 Justice

Pau­line van Mourik Broek­man, Dir­ector Mute Publishing

Simon Hardy, Anti-​capitalist Initiative

Space­hi­jack­ers

Stefan Dick­ers, Bish­opsgate Institute

Simon Wor­thing­ton, Co-​publisher Mute

To add your name to this list, please email naik_​d@​hotmail.​com /​Full list here.

Deepa Naik (This Is Not A Gateway)

& Defend The Right To Protest

_​_​_​_​_​_​_​_​_​_​_​_​_​_​_​_​_​_​_​_​

Deepa Naik

Coordinators@​thisisnotagateway.​net /​naik_​d@​hotmail.​com

www​.this​isnot​ag​ate​way​.net

Defend The Right To Protest

info@​defendtherighttoprotest.​org

www​.defendtheright​to​proest​.org

http://criticallegalthinking.com/2012/10/19/end-the-criminalisation-of-protest-the-case-of-trenton-oldfield/