There have been two big cases in the last few weeks which have got people talking about what it means to be a rule breaker and what lawlessness looks like.
First, there’s the Colston case where the protestors who tipped the statue of a Bristol slaver trader into the sea were brought to trial only to be found not guilty by the jury. The second is the case of Prime Minister Boris Johnson and whether or not he knew about and participated in parties/events during the 2020 lockdown which would have gone against the very laws he had introduced.
Let’s take them in turn.
The Colston Trial
The case against the four defendants was that they had committed criminal damage by toppling the statue. The facts are incontrovertible and indeed it would be difficult to deny that in and of itself, the act constituted criminal damage. However the defence were successful. Rather than seeking to contest the facts, they instead argued that the action was justifiable primarily because the display of the statue itself was a criminal offence of public indecency.
Opinion appears to have polarised after the trial with some people celebrating the verdict as a moral victory in the battle against racism whilst others have expressed anger at the result arguing that it undermines the rule of law. In effect, people are aligning along the same lines as they originally aligned when responding to the toppling. On the one side are those who believe that historical monuments associated with the slave trade represent something so momentously evil that they cannot stand. On the other are those who argue that yes the slave trade was wrong but we cannot simply go about destroying our history and “cancelling” people because there is more to their life and track record than one demeanour.
My own position for the record has been that I would like to see these statues gone. There are other ways to learn about history than looking at statues. I’m not sure they are really much use for teaching history at all, they are more there as an act of public vanity. Perhaps I’m betraying my puritan sympathies, monuments to people are best avoided along with any other form of graven image. I do accept that a careful distinction needs to be made between honouring people who brought plenty of good whilst recognising their human flaws as opposed to overlooking and white washing the dominant and serious aspect of who they were and what they did.
But what about the specific court case? Some people have expressed bewilderment at the angry response from some quarters. “How can anyone be angry and complain about a jury decision?” they ask. I think there are a few reasons why you might be angry or at least passionately disagree with a decision. In general terms these include:
- That you think the jury got it wrong on the facts. Of course, the jury’s decision is what counts and in that respect your opinions are irrelevant. However, this doesn’t mean you cannot have opinions and disagree with 12 of your peers.
- That you think the jury got the decision wrong because they were misdirected. Their decision is based on the facts, it is the judge’s responsibility to direct them on matters of law. If he either failed to advise on a question of law or gave the wrong direction then their decision is open to challenge.
- That you think the outcome was correct, but you are concerned about process and implications. Has a principle and precedent been set?
- That you think that the jury were making a decision based not on the case presented to them but based on other considerations such as political motivation.
These are all reasons as to why someone could disagree passionately with a decision. They remind us that jury trial may be the best approach known to us but it is not infallible. It’s worth saying that in this particular case, strictly speaking there shouldn’t be a risk of precedent being set because that’s something created by judge’s rulings as a question of law, not by the jury. However, there may be some concerns here about how the law might be influenced. Arguments used in one situation can have further unintended consequences. Suppose for example that a few of your neighbours decide that your beautiful new garden feature is in fact offensive to public decency? I mean there are a whole range of things that I consider to go against public decency including the performance of some music, some horrendous plays and films I’ve been forced to sit through and the entire footprint of Elland Road football stadium. Am I permitted then to seek to prevent such things from existing or happening? How is public decency determined?
On perhaps a more serious note, this raises questions about free speech and freedom of religion. What happens when a street preacher offends? What about the existence of our church buildings and the symbol long regarded as offensive, the cross upset people? Are people permitted to take the law into their own hands? Whilst we may not be there yet in terms of definite precedent, the move has at least been made, the argument has been accepted in principle as admissible.
In this case my concern is that there has been a conflation of the immediate legal question and the bigger ethical one. I would have preferred to have seen those separated out so that the conversation about statues and memorials was fully debated outside of the court room. It may have been better then if the CPS had simply determined that it wasn’t in the public interest to go to trial with that debate still under way.
The Prime Minister and The Downing Street Parties
Boris Johnson has now apologised to parliament about a party that happened back in 2020 in the Downing Street garden. He has recognised that it should not have gone ahead and that he should not have attended. However, his apology has been partial. He continues to insist that he did not realise that the large group of people gathering with their own booze were at a party but thought they were at a work event. This defence has produced high levels of ridicule from all quarters. I guess it is possible that within Westminster culture, you consume alcohol at meetings but that would itself raise questions about the culture. Meanwhile, even if this was part of the working day, there would be significant questions about whether or not it was within regulations/guidelines to bring people together in the workplace to go and say thank you to them at the time. The excuse has probably made matters worse because people find it simply unbelievable.
It is fascinating though to observe how people are responding. There’s a lot of understandable anger particularly from those who suffered loss or experienced challenges through lockdown. However, there is a part of me that is a little surprised at the surprise and shock expressed. Everything we knew about Boris Johnson prior to his election as Conservative leader and then the 2019 General Election pointed towards his administration being chaotic, pushing the boundaries and having an interesting attitude to truth. I insisted back at the time that many of us would find ourselves unable to choose between him and Jeremy Corbyn at the election and so I argued that it was reasonable to refuse the choice.
In other words, we cannot be surprised, we knew what we got with Boris. MPs and conservative voters can hardly complain now. Nor though can those who supported, kept in place, campaigned and voted for an equally unpalatable alternative. We should never have been choosing between someone whose faithfulness and integrity was in such serious doubt and someone whose support for violent terrorists and enabling of antisemitism was also a matter of record.
Even now, there are those who are seeking to argue that it is preferable to have Boris for all his flaws because the other options even from within his own party are far less appealing. I don’t think that’s really a sustainable position. But my point is this, if Boris Johnson should go then that shouldn’t be because of this specific issue but rather because of everything we already knew about him which meant he should not have been there in the first place.
The other thing it is worth saying at this stage is that if there has been this truth light, boundary pushing, chaotic nature to government then that has pervaded the culture much more widely and deeply than can be pinned on one man or even one party. Similarly, the disturbing issues around government procurement raise questions about how the whole government machine functions. My view is that over the years we’ve seen a hollowing out of the civil service which really took off under Tony Blair, continued under Brown, Cameron and May and has perhaps reached its zenith with Johnson. The system is broken. However, that’s a point for another day.
What has particularly interested me about Partygate is the number of people lining up to say that they are not concerned about whether the law was broken. Their problem is not that officials and politicians broke the rules but rather they were breaking harsh, unjust and unnecessary rules that they had imposed themselves.
I find that line of argument confusing and concerning. You see, this seems to go beyond even the problem of hypocrisy. It’s not a question of whether rules were broken or even whether or not they had broken their own rules. No, the real issue here is that “I disagreed with the rules.” What happens then is that the discussion moves from the objective issue of “was the law broken” to “do I agree with the particular rules.” It moves us into that same area of personal subjectivity that we mentioned when talking about public indecency.
Indeed, if the party had been organised by a group of civil servants who work hard and normally keep the law but were not involved in the specific COVID regulations and in fact strongly disagreed with them, then perhaps Boris accidentally stumbled upon, not so much a party nor a workplace event but a legitimate and extremely creative protest. Imagine the reaction if charges were pressed and that defence was raised!
No, what should really matter here is the one simple question “Was the law broken?” And if the law was broken then those who broke it should face the consequences. If our political leaders broke the law, whether it was their own laws or not, whether they agreed with them or not and whether or not we agree with them or not, they too should face the appropriate consequences.
I think both cases highlight an important issue. Far too often we are not debating the actual issue at stake based on the evidence. We rarely make our own mind up on such issues. Instead, we tedn to come to our own judgements based on our pre-existing assumptions and prejudices.
It’s worth recognising then that we are all prone to this. At the same time, we should be challenged about it. My opinion about the Colston 4 is pretty much irrelevant and won’t change anything. It’s possible that my opinion about Boris may have some impact on the next General Election but even then probably not that much given I don’t live in a marginal constituency and in any case I very much doubt that Boris will be one of the options by then.
However, there will be lots of decisions to be made in life where my opinion will count. It’s worth checking what I base those decisions on.