by Bryan Gibson (author of The Pocket A-Z of Criminal Justice)
(page 1 of 4)
Britain is a free country. I remember this from my schooldays. It was something to be grateful for we were told, and for good measure British justice was the best in the world, which is why so many other countries had either adopted or envied it. That, I suppose, is why we also stood for a minute’s silence on execution days. Later, as a lawyer, I learned that these claims are what are known as self-serving statements that may or may not be true, but should be treated with caution. Experience, especially in modern times, leads me to conclude that we are “sort of free”, not exactly living under a dictatorship or police state in the full sense of these words but increasingly hedged in by developments and incrementally unable to influence matters in any real or democratic sense. It has even become difficult nowadays to discover exactly what the law is at any given moment, never mind form an opinion on it or decide whether to agree with it or not.
The global nature of events means that we are less in the dark about what goes on in the rest of the world. In advanced nations at least, British justice is maybe par for the course, and frequently falls foul of European or other international standards. Perhaps it just looks better, more pomp and ceremony. Many high principles of a similar kind to those discovered in Britain appear to have arisen quite independently in other countries. Ours are now being eaten away. More repressive laws on the one hand, a diminution of rights on the other. It is now an offence to demonstrate near Parliament! Speakers Corner is still fine, so long as you mind what you say.
In former times such developments might have caused a bigger reaction. There is a lot of politeness around now and a fear of perhaps being marginalized. But there are signs of life. Over the past few months, the Guardian newspaper ran an interesting series on Britain’s “radical heritage” that it sees as important to preserve. Unfortunately, many radical events in history have ended in violence, disturbances, riots and murder, even if they have pushed the world forward – not necessarily straightaway but as the dust settled and people began to realize that a crackdown by the authorities, may, with hindsight, have involved injustice, unfairness or over-reaction towards those seeking to change matters. Sometimes questionable or savage means were used to quell disturbances, protests, uprising or rebellion. Whatever, the Guardian bemoans the general lack of blue plaques to commemorate such events and the airbrushing of them from the collective memory.
Rarely is it that the authorities rather than the rebels have been held to account in such circumstances although there are partial exceptions, as where compensation has been paid out in the wake of state violence. The miners’ strike of 1984 is a telling example of legitimate dissent that somehow turned sour, the protesters being put down by dubious means under Prime Minister Margaret Thatcher and whole communities destroyed. There is some evidence to suggest that there were political moves to interfere with the judicial process. Millions of pounds were later, and far more quietly, paid out to miners for the treatment that they received. The peace convoy that visited Stonehenge each June for the Summer Solstice is another, if less well-rehearsed, example of pre-emptive action by the authorities that went wrong. Police in riot gear from several forces closed in on these “toe-rags”, “vermin” and “ne’er do wells” over several days, forcing them into a bean field (hence the events are also sometimes called “The Battle of the Bean Field”), beating up travellers and smashing their wagons. Ostensibly, the convoy was a threat to local farmers and their crops. The response was politically charged and disproportionate. The TV and front pages were full of the actions of the police in stopping this lawlessness but few reported the heavy compensation payouts ordered by the High Court several years on.
by Bryan Gibson (author of The Pocket A-Z of Criminal Justice)
(page 2 of 4)
Moving the World on
Most events in our radical heritage perhaps rank higher than watching the sun come up behind ancient stones (although even that is a matter of opinion), but the principle is what is important. Not everyone wants to be the same, believe in the same things or to agree with the status quo, vague notions of Britishness (whatever that is), or increasing curbs on a true democratic process and people should be free to peaceably express this according to their own culture, lifestyle and conscience, which in theory they can, subject to longstanding rules about doing so within the law and some recent powers, controls, restrictions and forms of censorship. Not yet as bad as during some historical clampdowns, but getting there.
Dissent does not need to be on the streets of course, viz, The Penguin Book of Twentieth Century Protest edited by Brian MacArthur (1998, Viking) that reproduces several hundred extracts from the pens of people as wide-ranging in outlook as Keir Hardie, George Bernard Shaw, Beatrice Webb, Bertrand Russell, Arthur Koestler, George Orwell, Arthur Scargill, Kenneth Tynan, Fidel Castro, Bernadette Devlin, Sarah Hipperson, Peter Tatchell, Paul Foot and Tony Benn. At the opposite extreme, it may sometimes be legitimate to go further than wielding the pen, starting with civil disobedience. This may mean that offences are committed, prosecutions launched, people imprisoned or worse (some to become martyrs to a particular cause); but there are also instances of juries refusing to convict in the face of plain facts, what is sometimes called “pious perjury”. There are always a number of jurists, philosophers, criminologists and other thinkers who are prepared to explain how and why such disobedience may be more legitimate than the actions of the state itself.
In its series of articles, the Guardian has instanced events such as the Peterloo massacre (1819) when the militia was set upon people campaigning for “one man, one vote”, the Battle of Cable Street (1936) that led to the banning of private armies, military uniforms and the Public Order Act of that year that is still used, the Tolpuddle Martyrs (1834) from Dorset whose joint actions against their employers triggered the trade union movement, and the Putney Debates (1647) when The Levellers called for opposition to Oliver Cromwell’s increasingly authoritarian stance – as well as a motley collection of riots – including those over the original poll tax as part of the Peasants’ Revolt under and against Richard II, the first rising by the lower orders. There are countless lesser known, more deeply buried, sanitized or obliterated events.
The Big Issue
The bomb-prone Angry Brigade or Stoke Newington Four (some say Eight) from the late-1960s into the early 1970s can attest to the close attention paid by the authorities to certain activists. So also can members of the Committee of 100, the hard core of nuclear protesters working in parallel with the Campaign for Nuclear Disarmament (CND), including the philosopher Bertrand Russell who was, with others, sent to prison for direct action in causing disturbances at American airbases in Britain in the late-1950s as part of their protests against nuclear weapons (having been given the option of promising to behave and staying out of gaol, which they refused). Likewise, there was always a long queue of “peace wimmin” from Greenham Common ready to sit in the road and later, following their arrest, on the steps of Newbury magistrates’ court – or sometimes for snipping the wires of the perimeter fence.
The threat from which the public must be protected changes over time and was at its height in the UK during the troubles in Northern Ireland and when the Irish Republican Army (IRA) was active on the UK mainland especially. The big issue is now Muslim extremism which has triggered legislation capable of swallowing up all forms of dissent, physical, oral or written. The future depends on how you define, interpret, expand and thus criminalize the now potentially very wide notion of “terrorism”. Like treason, terrorism is a malleable concept. Mission creep is a constant danger. Overreaction and hidden agendas are always a risk. The whole situation is blighted not by a need to respond to a small cell of oddballs living in Stoke Newington or a Republican group with a discernible if sometimes wavering political agenda, but the fact that war, terrorism, truth, religion, emergency legislation and trust have all become intertwined in the fight against a largely shapeless and invisible enemy. As a result, we can all become terrorists now at the flick of a switch.
In Britain, people have traditionally objected, protested, demonstrated, dissented and generally remonstrated with government and others in authority when dissatisfied, even if, as is now regularly disclosed under the Freedom of Information Act 2000 (and so long as it continues to deliver what it says on the tin), such people were in the sights of, or infiltrated by, MI5 and Special Branch, or in earlier times under surveillance after the blueprint established by Sir Francis Walsingham under Elizabeth I. Nowadays, all sorts of ordinary people are being encouraged to spy on each other after the manner of Orwell’s 1984: neighbours, colleagues, workmates, taxpayers, car mechanics, doctors, dustmen, bank managers, accountants and solicitors. At the same time, Britain has become “The Surveillance Society” in which, according to the latest reports, it now leads the western world, like a modern-day KGB or Stasi.
In the 1930s, if you were a weekend rambler, you could trespass on Kinder Scout in an early bid to establish a right to roam and sing, as the late Ewan McColl did, of being “a work slave on Mondays” but “a freeman on Sundays”, but this might mean that you were labelled “communist”, treated as subversive and placed on a watch list. If you stepped too far out of line you could be leaned on in some way, possibly arrested or harassed. I know one police officer who packed in his job, bought a guitar and set out to make his way around the English folk music circuit. He even released a number of records in his new guise. In retrospect, I have often wondered whether he ever gave up being a police officer at all. It is a long way from Kinder Scout to Forest Gate or Stockwell Underground Station but the mindset created by surveillance should be kept an eye on (sic).
by Bryan Gibson (author of The Pocket A-Z of Criminal Justice)
(page 3 of 4)
Taking on the State
It may have been worse in the time of Charles I, hence the Civil War and the emergence of Oliver Cromwell as Lord Protector. Cromwell is, I suppose, the ultimate example of the freedom fighter as terrorist. The eventual trial of Charles I for treason is interesting on so many fronts for the student of radical heritage, first, that it happened at all; but ultimately for its irretrievable outcome. It has recently been revisited and from a refreshing perspective by Geoffrey Robertson QC in his invaluable book The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold (2006, Vintage). This extensively researched, expertly informed and quite outstanding account merges the story of brute radicalism and extremism with legal biography and is a must for any legal practitioner who wishes to contemplate the meaning of independence of mind. “The Man” in question is the little known John Cooke (sometimes Cook) (1606-1660), a barrister and son of an impoverished farmer from Burbage, Leicestershire, who rose from obscurity to become Solicitor-General under Cromwell and, later (though perhaps to get him off the scene) Chief Justice in Ireland. As Robertson explains, in 1649 Cooke was the barrister who was chosen to receive “the tyrannicide brief”, that for the prosecution of Charles I, after others more senior to him quit London for the country and the person to whom it was first sent, William Steel, the Attorney-General, “fell ill”. At which point Cook stepped up to lead the prosecution team.
Cooke was a lawyer and reformer of some considerable forensic skill and courage, who attracted the respect of his colleagues whilst being at odds with many of them due to his radical or unconventional views set down by him in numerous pamphlets and other publications including, eg, that an accused who was otherwise guilty ought not to escape on a technicality (an idea now, ironically, back in fashion with government and some police forces). Cooke has also been credited with originating – or drawing attention to, the importance of the cab rank rule for advocates under which the barrister must take any case that comes along unless there is good reason to decline it (so that even the most “undeserving” need never go unrepresented), the right to silence and the duty to act pro bono for the poor as a forerunner to legal aid. The following is just a flavour of the kind of man Cooke was and sums up the unenviable situation in which he found himself:
“In short, John Cooke was respected but not trusted. He tended to do and say what he believed was right, rather than what was popular or politic or likely to ingratiate himself with the prevailing power. Be it King or Parliament or a bench of Judges. He would do nothing merely to please … So he was a risky choice … His appointment as ‘Solicitor-General of the Commonwealth’ – a job that came with his acceptance of the brief – was a measure of Parliament’s desperation, as more senior and reliable barristers ran for cover.”
After the restoration of the monarchy (1660), Cooke himself stood trial at the Old Bailey as one of the Regicides and following his conviction for treason was sentenced to be hung, drawn and quartered; this being carried out at Charing Cross in a particularly gruesome fashion before a large crowd that reportedly included Charles II masquerading as a mere spectator. A poor end for someone with a first-class mind to whom, as Robertson explains, the instigators of both the French Revolution and the American Revolution were both to turn for posthumous justification and support. The king and his underlings later went after his publishers and did the same to them.
What Robertson also makes clear as one of the UK’s leading human rights and civil liberties lawyers is that there is room for protest amounting, in the extreme, to impeachment of a head of state for crimes against his or her own people. Cooke provided the blueprint for the Nuremburg Trials and those in the modern-day of Saddam Hussein, Slobodan Milosevic and other tyrants. The argument that no one is above the law begins not, as is often claimed, with Thomas Fuller but with the lesser known and much earlier John Cooke who sought to establish that even the King (even in the days before a constitutional monarchy) was not above the law: Rex did not equal Lex and no one is immune from prosecution for heinous crimes. A momentous argument that underpins the Rule of Law and which has lost nothing over the years.
Robertson also explains how remarkable it was that there was a trial at all in Charles’s case: he had been in prison for years (of a kind) and could (as Winston Churchill urged of the Nuremburg defendants) have simply been taken out and shot under military law, at any time as so many deposed leaders have been, globally speaking, over the years.
Radicals may riot, attack, take part in uprisings and rebellions, but they can also be decent human beings at the same time. Charles I was given a fair and proper trial in which the Judges went to lengths to ensure justice and fairness. In the end it was Charles who would not give up on his theories of absolute power and the divine right of kings. In stark contrast, Cooke’s own trial was biased, dismissive and served to fast track him (and the other Regicides) onto a hurdle to the gallows. The Crown Prosecution Service does not, so far as I know, have a patron saint. They should beautify and then adopt Cooke.
by Bryan Gibson (author of The Pocket A-Z of Criminal Justice)
(page 4 of 4)
Who Will Prosecute Tony Blair et al?
Lawyers of a radical or questioning frame of mind are perhaps unlikely to find themselves in quite the predicament that John Cooke did but, whenever there is a serious challenge to the status quo, the radical thinker, and especially the activist, places himself or herself at risk of the full might of the law or of being marginalized or sidelined in other ways. In bad regimes he or she may pay with his or her life, have no greater protection than a member of Saddam Hussain’s defence team (several of whom were murdered), or maybe a non-compliant Russian journalist: the lesson of history from Stalin, to Hitler, to Pol Pot and to Idi Amin. No one can guarantee the continuance of a good and benign regime of course; whilst even our present administration exhibits little in the nature of the kind of tolerance shown towards, for example, the Six Bishops or The Levellers who managed to negotiate their way out of reprisals, even if they are in a minority.
Without specific legislation, the UK has dealt with terrorism in the past until the troubles in Northern Ireland that is, but it is only more recently that anything in the nature of all-embracing and somewhat flexible laws have been enacted, that have such hidden potential across more general territory that your everyday radical (for which read terrorist when the pressure is on) must think hard before risking being placed an some secret list of undesirables.
There have, however, been no serious suggestions concerning the arrest of our present Queen (although there was some vague talk of one plot or “contingency plan”, I think it was labelled, a few years ago) and even the most diehard republicans do not appear to advocate the sharpening of the axe as opposed to an “exit strategy” for the Windsors. It would seem to be doubly ironic of course if Charles III were to fall victim to it. One problem now is that any latter day Oliver Cromwell or John Cooke would doubtless be on a hiding to nothing from the start: under surveillance, phone tapped, computer hacked, home, office, workplace or chambers bugged, bank account, medical records and other private dealings under scrutiny by the Serious and Organized Crime Agency (SOCA), Revenue and Customs in full flow, working in partnership with a host of other law enforcement agencies and informants to share data and “harry, hassle and hound” him or her. A modern-day Cooke’s assets (such as his were) would be seized or frozen, Solicitor-General or not.
But there has been talk of bringing a prosecution against Tony Blair, UK Prime Minister as he completes his ground-breaking decade in office: either for declaring war on Iraq illegally and/or for selling honours contrary to the legislation introduced in the 1920s to curb his predecessor David Lloyd-George. Both the present claims no more than allegations, of course. The latter, honours, investigation is now at an advanced stage and it is interesting to note the debate that has arisen over the decision-making process. Lord Goldsmith QC, the Attorney-General, cabinet minister and said to be a friend of the Prime minister is, at the latest count, to be involved in some way in this (if also, according to the Department of Constitutional Affairs’ rethinking his position and likely to take a back seat); the head of the Crown Prosecution Service and Commissioner of the Metropolitan Police and some others having declared their interests and opted out. Perfectly honourable, but John Cooke would have enjoyed this. Maybe this is not really about radicalism, but it does touch on the challenges faced by any lawyer who would take on those in high places. It is of the same genus perhaps and in the modern world tenuous connections are all that is needed. It is also worth noting that quite a number of those in high places caught up in the honours investigation have been hoist on their own petard in terms of new police powers of arrest, fingerprinting, search and DNA-sampling, etc, that, presumably, were only really intended to apply to real criminals, suspects proper and other people.
The Dying Embers of Dissent
It may well be of course that, with its articles on radical heritage, the Guardian, like Cooke the lawyer, pamphleteer and espouser of dangerous causes, is pushing the envelope. Having learned that it is now an offence to glorify terrorism, it has begun a historic and provocative dance around the dying embers of dissent. Just as these new laws are set to destroy aspects of our history unless past radical events are spoken of in hushed, derogatory or largely neutral tones, that newspaper’s editors appear to have set about a campaign to achieve the very opposite, and that could, at the flick of the same switch that turns other people into terrorists, see its editors in gaol. Another body to swell the prison statistics. Another radical to share a cell with the Prime Minister, perhaps? The editors proud descendants of Daniel Defoe, John Selden and other diehards of freedom of speech; the (by now one assumes) ex-Prime Minister scrutinizing his sentence plan and pondering the words “in denial”. Previous pages … 123 4
⌐ Bryan Gibson 2006. This article appeared in Justice of the Peace in February 2006
The Pocket A-Z of Criminal Justice is now available in colour paperback.