The scandal of endless bail

Libertarian Alliance, May 2013

Writing in today’s Guardian, Neil Wallis calls for an end to the present situation whereby thousands of people have been on police bail for over six months[1]. The Birmingham Post reported that 57,000 people are currently on bail, and of these, 3,172 have been waiting for more than six months with no decision on whether they will be charged or not. One person remains on bail having been arrested over three and a half years ago.

The Law Society has called for a review and has said there should be a statutory time limit for police bail, suggesting a maximum of 28 days. This could be extended by application to a magistrate in which the police would need to explain what stage their investigation had reached and why extension was necessary. Other groups have suggested a longer maximum than this.

Police cuts are one reason why bail times are being extended. Another is suggested by Wallis, “The level of “reasonable suspicion” needed by police to make an arrest is simply far too low. I hear time and again about ordinary people being arrested and kept on endless bail so police can mount a fishing expedition into their lives.”

I have recently written about the Emma West case as an example of “trial by process” – whereby the mechanism of the law is sufficiently drawn-out to place the accused under a pressure that is in itself punitive. Here is more of the same.

A related issue is the increasing use of conditional bail by the police against activists who are arrested and then bailed on strict conditions before an event at which they would be likely to be present. This was used at the Olympics and again at the wedding of Prince William. Conditional bail allows the police to impose conditions – for example, not going within 500 yards of a given place at a given time – that would otherwise be legal; breaking those conditions then becomes a criminal offence. The charges are then, in most cases, quietly dropped once the event is over. It used to be the case that conditional bail could only be given by a magistrate; this power was extended to the police under the Police and Justice Act 2006 schedule 6, which amended section 30 of the Police and Criminal Evidence Act 1984.

[1] http://www.guardian.co.uk/commentisfree/2013/may/28/britain-police-charge-without-bail

In May 2013, I was the author of an article for the former Libertarian Alliance blog (subsequently re-published in my book The Radical Traditionalist Today) discussing the age of consent in the historical and present context of English and European law. This article takes as its starting point a third party’s proposal to lower the age of consent in England and Wales. As will be seen, the article is academic and discursive in nature and addresses the concept of consent in the light of recent legislative developments. It does not at any point express support for the proposal to lower the age of consent.

Whither consent?

Libertarian Alliance, May 2013

Writing in spiked! recently, barrister Barbara Hewson suggests that the age of consent for sexual activity should be restored to its pre-1885 position of 13.[1]

Reducing the age of consent to 13 for all sexual acts would bring the UK in line with Spain, although Spain has a legal caveat that allows for prosecution where sexual consent is obtained by deception in the case of a person aged between 13 and 16. Until 1995, the age of consent in Spain was 12. Indeed, Britain’s age of consent is high by the standards of European countries, many of which have an age of consent for heterosexual acts of 14 or 15, although the age of consent for homosexual acts is not necessarily the same. Among other developed nations, Japan has an age of consent of 13, although this is subject to further restrictions.

An interesting note to this matter is that until 1993, English common law held that a boy under the age of 14 could not commit rape as a principal offender because he was irrebuttably presumed to be incapable of sexual intercourse. That a boy of that age is indeed so capable has been the subject of some publicity[2].

While there is some merit in arguing about the moral, physiological, emotional and cultural import of an age of consent, and the extent to which children need to be protected both from the attentions of adults and their peers, we should also consider all this in the context of what consent has come to mean in the implementation of the law. Consent is not, and never was, the same as a contract, whereby terms are mutually agreed and non-performance brings with it an entitlement to compensation. Rather, consent is a highly complex concept which is changing rapidly in its meaning.

It has been established in law that there is a point at which consent becomes ineffective. This has generally been expressed as the idea that a person cannot consent to an act that results in physical injury to him or herself where such injury amounts to a level just below actual bodily harm. Over twenty years ago, Sean Gabb wrote about this situation and pointed out that in addition to personal consent, an additional criterion of “public interest” is provided that judges the actions by “what is acceptable in a civilized society and what is not.”

Where there is widespread agreement on what constitutes civilization – and particularly where sexual morality is a matter of consensus, be that consensus the result of religious teaching or otherwise – there may be argued to be a valid argument as to what constitutes a public interest in sexual mores, even if such an argument is not in accordance with a purist libertarian worldview. If, on the other hand, the context is one of secularism, post-modernism and moral relativism, there can be no abiding public interest, because there is no commonly agreed moral basis for that public interest to rest upon.

There may be an appeal to “common sense” and reference to public opinion such as finds expression in the media and through various interest groups, but these things are shifting sands. To recognize that this landscape is changing is fundamental to understanding the way in which consent and sexual morality are being redefined in law. To apply these changed standards of today retrospectively to events that occurred thirty or forty years ago, and then to act as if these standards were somehow universal points of principle at that time, is a form of delusion that is dangerous and that would lead – indeed some would argue has already led – to a society that is unbalanced and hypocritical.

After the current purge of aged or dead media figures has run its course, the media caravan will doubtless move onwards –  perhaps in time to the rock stars of the era and their teenaged admirers, who were the subject of far greater infamy in their day than those currently under scrutiny. Again, there will be the suspicion that at least some of the accusations are motivated by a desire for financial compensation, and the defence put forward that only now, despite the effluxion of time, have the victims gained the courage to speak out against their attackers. For all those who are genuine victims with no ambiguity about that status, there are also those who come into a grey area where any victimhood is a matter of perception and a range of other subjective factors will come into play.

What is needed in such a situation is a proportionate view of all of the factors involved and a balanced judgement so that justice, and not merely a media-driven sector of public opinion that often veers close to a witchhunt, is served. It seems improbable that this can be satisfactorily achieved in the current circumstances.

What, then, does consent now mean? Consent can be given, but it has historically been considered invalid if there was fraud or deception involved, such that the person would not have consented had the facts been known. This has been applied in cases of impersonation, and also famously in R v Clarence (1888) 22 QBD 23 where the defendant knowingly infected his wife with a venereal disease. As well as the aforementioned invalidity of consent in cases of physical injury, R v Chan-Fook (1994) 1 WLR 689 established that the definition of actual bodily harm could apply to psychological injury as well as physical harm. This effectively means that consent can no longer cover anything more than trivial injury.

Consent within marriage was historically presumed, but from 1991 (R v R) the courts have removed the exemption in law for marriage and thus given rise to the offence of marital rape. Allied to this was a change in the definition of rape, in which hitherto the victim had had to prove that there was a “continued state of physical resistance.” Lord Hale, writing in the seventeenth-century, opined that “rape…is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” Until 2003, English law on the matter was largely framed with this maxim in mind. Since that time, however, the balance of the law has shifted considerably to give weight to the plaintiff (who may often remain anonymous) and to remove protection from the defendant (who is invariably publically named, often at the cost of his reputation even if acquitted.)

Under the Sexual Offences Act 2003, the requirements for a defence of mistaken belief in consent were made more stringent in that they must now be both genuine and reasonable. There is now a set of presumptions against said reasonableness, including where violence is used or feared, the complainant is unconscious, unlawfully detained, drugged, or is by reason of disability unable to communicate a lack of consent. This has changed what was formerly a subjective test into an objective test. It also means that a man may be convicted of rape even if he believed that the victim consented, if the court were to consider the circumstances unreasonable. It remains impossible for a woman to commit rape as a principal offender, although she may commit rape as an accomplice.

All of these things are the result of complex changes in the way that society sees the nature of consent, and of the weakening of consent as a concept and as a defence. One major factor that has prompted this has been the assertion that too few rapists are convicted; this perception continues although it would be near-impossible to establish a sound statistical basis for deciding whether someone who was in law innocent of an offence was in fact guilty of an offence. The weakening of consent has certainly resulted in an increase in rape convictions, and these are reported to be at an all-time high with a current 63% conviction rate[3]. It should not be a great surprise that if the legal definition of consent is weakened, it will become easier to obtain more rape convictions, an outcome which has been seen by a number of groups as highly desirable, and which serves both the ends of a near universally-accepted societal agenda (to see perpetrators of sexual violence punished) and a much more invidious Leftist political agenda that benefits from the demonization of men as creatures of violence and sexual aggressors. The corollary of this, however, is that some of those who are convicted would not have met the legal definition of rape that applied before the change in the law had occurred. The law is thus not merely convicting more rapists, it is creating more rapists.

It is because of this that any argument about the age of consent carries considerably less weight than it would have done in the pre-2003 era. It might, indeed, be argued that consent has largely lost the meaning that it once had. Its importance now is increasingly that of a folk memory of its former significance, where in practice such a wide range of circumstances exist that can override it or question its validity that any sensible person would be foolish to rely upon it alone as a defence. And where, as a society, does that leave us?

[1] http://www.spiked-online.com/site/article/13604/

[2] http://www.thesun.co.uk/sol/homepage/news/2233878/Dad-at-13-Boy-Alfie-Patten-13-becomes-father-of-baby-girl-Maisie-with-girlfriend-Chantelle-Steadman-15.html

[3] http://www.guardian.co.uk/society/2013/apr/23/rape-conviction-rate-high

Libertarian Alliance, May 2013

The recent case of Arthur Redfearn has proved to be of some significance in establishing a firmer basis for freedom of association within employment law.

Mr Redfearn, a bus driver, was considered a “first class employee” and had neither attracted complaints from his employers, West Yorkshire Transport Services (a subsidiary of Serco), nor from service users, during the short period of his employment. Not long after starting work with WYTS in December 2003, Mr Redfearn won a seat on Bradford Council representing the British National Party. He was featured in an article in the local newspaper and this prompted a trade union and other employees to make representations to WYTS. WYTS’s response to this pressure was summarily to dismiss Mr Redfearn on 30 June 2004. Because he had worked for them for six months only, which was less than the statutory minimum period, he was unable to bring a case for unfair dismissal against them. Instead, he was compelled to claim racial discrimination (on the basis that the BNP was, at the time of the case, a “whites-only organization”) – an ironic position given the BNP’s longstanding opposition to racial discrimination legislation.

Mr Redfearn’s employment had been principally as a driver of buses for Asian adults and children with disabilities. WYTS claimed before the employment tribunal that their buses could come under attack from opponents of the BNP and that passengers and their carers could be caused anxiety about this. They attempted to justify Mr Redfearn’s dismissal on health and safety grounds, and the tribunal found in their favour. The suggestion that opponents of the BNP might use violence against buses of disabled children is one that should raise eyebrows.

In July 2005, Mr Redfearn won an appeal against the tribunal decision on the grounds that no consideration had been given to him being offered alternative employment, for example on non-driving duties. In May 2006, WYTS appealed this decision in turn to the Court of Appeal[1] and won[2], the tribunal deciding that the discrimination Mr Redfearn had experienced was political, not racial, in nature and thus fell outside the scope of anti-discrimination laws. It concluded that Mr Redfearn’s beliefs were incompatible with the European Convention of Human Rights, which would not uphold rights where to do so would compromise its values of “tolerance, non-discrimination and social peace”.

Having been refused leave to appeal to the House of Lords, Mr Redfearn, who appears to have displayed more than usual reserves of persistence in the face of official adversity, took his case directly to the European Court of Human Rights. In November 2012 the ECHR gave judgement for Mr Redfearn[3], ruling that his human rights had been breached by Serco[4]. It stated that it was “struck by the fact that he had been summarily dismissed following complaints about problems which had never actually occurred, without any apparent consideration being given to the possibility of transferring him to a non-customer facing role”.[5]

The ECHR said that the right to freedom of association “must apply not only to people or associations whose views are favourably received or regarded as inoffensive, but also to those whose views offend, shock or disturb”. This is significant, because the legislative imposition of the values of “tolerance, non-discrimination and social peace” itself involves considerable curbs upon freedom of association: association is by nature exclusive to a greater or lesser extent, and thus is likely to involve non-tolerance and discrimination at some level , whether in prohibited areas or not.

Mr Redfearn not only won a personal victory, but his case has also resulted in a change to UK law, in respect of an amendment to the Enterprise and Regulatory Reform Bill which is currently before the House of Lords[6]. In its judgement, the ECHR stated that the UK must “take reasonable and appropriate measures to protect employees, including those with less than one year’s service, from dismissal on grounds of political opinion or affiliation, either through the creation of a further exception to the one-year qualifying period under the 1996 Act or through a freestanding claim for unlawful discrimination on grounds of political opinion or affiliation”. The change in the law – perhaps we could dub it the Redfearn Amendment – means that the right of an employee not to be dismissed by reason of his or her political views or memberships will now start from the first day of employment.

Writing in spiked! today, Rosamund Cuckston suggests that this ruling may in fact have the perverse effect of further constraining freedom of association, making employers carry out “risk assessments” before employing individuals with controversial views[7]. Although I share her mistrust of the ECHR and its imposition of core values that have potentially troublesome implications, I do not share her pessimism. As I see it, political beliefs have now joined the list of other protected criteria in employment that may give rise to a discrimination case. It is more likely that employers will be careful not to ask questions in interview or application concerning a candidate’s political beliefs that could be seen as potentially problematic for them, and that they will recognize that they need to be careful regarding this area in respect of their existing workforce.

What will also be interesting is whether this change in the law has implications for those employment situations in which membership of the BNP is at present the subject of overt and active discrimination in the form of an outright ban. Organizations that have a ban on BNP membership among their workforce include the police, the Prison Service, and the Church of England in respect of its clergy. Other employers have considered or have been reported to be considering similar moves. There have been several situations in the past involving BNP members who may also be affected by this change.[8]

While the BNP are understandably delighted at this situation, the implications go well beyond the party and its members. A free society must preserve the right of freedom of association as a core principle. It should also ensure that people cannot be sacked from their jobs for holding political views, however distasteful they may be to some, that are not in line with those of the prevailing orthodoxy. If the arguments of the BNP are to be challenged, the correct means to do so is by confronting those arguments in the course of open political debate, not by suppressing society’s freedoms.

These days we are often told that people do not feel they can speak their minds in opposition to a culture of political correctness because to do so would threaten their employment. It would appear that those people have been thrown a legislative lifeline by the present developments. This, as they say, could turn out to be a game-changer.

[1] http://tablet.yorkshirepost.co.uk/appeal-court-probes-case-of-driver-sacked-in-bnp-row-1-2611259

[2] http://tablet.yorkshirepost.co.uk/sacked-bnp-supporter-to-take-his-case-to-the-european-court-1-2371620

[3] http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-114240

[4] http://tablet.yorkshirepost.co.uk/bnp-bus-driver-wins-victory-on-human-rights-1-5098819

[5] http://www.bbc.co.uk/news/uk-england-leeds-20235101

[6] http://tablet.yorkshirepost.co.uk/bnp-bus-driver-sacked-over-bradford-asian-passengers-forces-legal-change-1-5409685

[7] http://www.spiked-online.com/site/article/13590/

[8] http://www.telegraph.co.uk/news/uknews/3484612/Rod-Lucas-dropped-by-TalkSPORT-after-BNP-links-emerge.html, http://www.dailymail.co.uk/news/article-1088392/Teacher-prestigious-prep-school-faces-probe-job-BNP-exposed.html, http://www.guardian.co.uk/uk/2010/mar/25/barrister-bnp-loses-chambers-grierson, http://www.thesun.co.uk/sol/homepage/news/article2333676.ece, http://www.bristol.indymedia.org/newswire.php?story_id=25066

Life versus art

Libertarian Alliance, May 2013

It has been reported that pressure groups representing the survivors of rape, sexual violence and childhood sexual abuse have called upon the BBC to remove a statue by the sculptor Eric Gill that adorns its London headquarters[1]. The statue, from 1932, is a depiction of Prospero and Ariel, the latter depicted as a naked boy. This is not a new demand[2].

While the BBC has, entirely properly, refused this demand and pointed out that Gill, for all his sins, remains a major British artist whose work is widely regarded as of importance, this situation illustrates a phenomenon among the Left that is worth examining further.

Two insidious ideas are prevalent among the Left today. The first is that of political correctness. In this context, this means that groups that constitute a minority whose rights are privileged by the Left are granted the specious right not to be offended. This right is purely an invention of the Left to prosecute its Marxist agenda of the destruction of Western culture. It creates no-go areas of taboo and state protection that fundamentally attack the freedom of speech and force opposition to the Left out of the public arena. The second, related, idea is that a leading means of pursuing this Kulturkampf is to attack the past, whether in the form of its artefacts, in a revisionist approach to history, or indeed in the ancestor guilt that is often foisted upon the White population in the name of the remembrance of slavery, and that periodically results in the absurdity of “apologies” by the living for the actions of the dead.

This is not to suggest that the victims of abuse, along with many others, are not genuinely upset or offended by aspects of the life of Eric Gill, an enormously gifted man and devoted Catholic whose lifestyle extended beyond adultery to the practice of incest and bestiality. Gill did not try to reconcile his faith and his behaviour on an intellectual level, nor to excuse the latter. He seems to have regarded a state of permanent penance and self-reproach through a strict religious observance as the most that he could achieve in ameliorating his excesses. But as an artist, it is precisely this tension between the sacred and the secular, and between the devotional and the erotic, that renders his work important and of stature. As his biographer Fiona MacCarthy has said, “Gill is too good an artist, too ferocious and intrepid a controversialist, to be protected and glossed over. We need to see him whole.” If the process of seeing him whole takes us beyond the norm and into some of the darkest recesses of humanity, then there would be a strong argument that this is precisely the purpose of his art. If Gill can transcend his sins and present his broken morality as transfiguration through his creative ability, we are then left with some disturbing conclusions as to our own basis for judging him and the religious significance of what he has to say to us.

In the end, Gill’s profound flaws are what makes him such a fascinating and controversial figure, and that make the utter beauty of almost everything he produced so remarkable. There is a simplicity of line, a boldness and a wildness in his art that is at once balanced by the limits of his essential Englishness and his Catholic understanding. Gill always points to something beyond himself, usually spiritual, and at the same time is utterly honest in the subjectivity of his approach; everything is seen through his own eyes and in the context of his own understanding.

The question of the extent to which one can separate artist from art is a matter for perpetual discussion. In 1935, the critic Ernest Newman published his book “The Man Liszt” which was a poorly-researched attack on its subject, who was both during his lifetime and today acknowledged as one of the most significant musical figures of the nineteenth-century. Newman writes little about Liszt’s work as a concert pianist, composer or advocate of other musicians. Instead, the book is devoted to lambasting its subject’s moral failings and social climbing. As scholarship it is nugatory, but the effect it had upon the musical world of the time both actively prevented Liszt’s music from being taken seriously and relegated those who performed him to the second rank of marketability for several decades. Some years ago, a similar online controversy arose in relation to the music and lifestyle of Benjamin Britten, with one writer in particular taking exception to any appreciation of Britten’s qualities as a composer because of his alleged pederasty and other moral failings. The comments pro and contra this viewpoint in an online discussion at the Musicweb International website[3] are interesting to read. Similar debates concerning Wagner have raged for over a century, and his music still cannot be performed in Israel today, despite the fact that some prominent Jewish musicians, notably Daniel Barenboim, have performed and advocated his work.

What can be concluded is that firstly, attempts to censor art on the grounds of contemporary morality are ultimately doomed to failure in the long run, and earn their proponents both ridicule and opprobrium. Many of our greatest artists have been prone to moral failings of one kind or another. But once a work of art is created, it takes on a life of its own, independent from that of its creator. It is perhaps not too far-fetched to suggest that, in the language of the Left, an artwork has rights.

Secondly, the past and the dead are vulnerable precisely because they can be the focus of subjective, and therefore politically-charged debate. This should be perceived for precisely what it is, and not confused with the practice or study of history in any true sense. The dead require the advocacy of the living; they have no means of arguing for themselves. In preserving the good in what they stood for, we therefore preserve our traditions and our humanity.

[1] http://www.news.com.au/world-news/bbc-told-to-remove-work-by-pedophile-sculptor-eric-gill/story-fndir2ev-1226626709154

[2] http://news.bbc.co.uk/1/hi/magazine/6979731.stm

[3] http://www.musicweb-international.com/classrev/2003/Sept03/Britten_comment.htm