A Whiff of the Branding Iron


4:00 pm - November 4th 2009

by Unity    


      Share on Tumblr

Perhaps the most perceptive commentary I’ve ever read on the subject of public school education came not from an educationalist or politician but from what I suppose could be called a ‘socialite’. She said, in an otherwise typically fatuous interview, that the problem she had with public schoolboys was that their education gave them such a ‘gloss’ on their character that it could take ten years to realise just how stupendously thick they really were.

I’ve had my suspicions about the Tory’s Shadow Justice Minister, Dominic Grieve, for some time. Since, in fact, the publication in the Telegraph of a commentary on the always fractious subject of crime statistics in which he claimed that:

The BCS is a poor measure of violent crime. It does not count homicides, rapes and multiple assaults and excludes some of the most vulnerable victims of violence, including the homeless, elderly people in care homes, students in digs and until this year  children.

Much of what he had to say is, of course, untrue.

Data from the British Crime Survey on rape and other sexual offences is included in the Home Office’s annual crime statistics, much of which is incorporated into an annual supplementary volume on ‘Homicides, Firearms Offences and Intimate Violence‘ (pdf). This same publication also provides estimates of the prevalence on multiple victimisation in the context of ‘intimate violence’ (which includes domestic violence as well as sexual offences) – its on pages 59-60 of the current supplement, if anyone’s interested.

However, what most struck me about Grieve’s statement in the reference to the British Crime Survey not counting homicides, which ranks as perhaps the most absurd criticism of the BCS anyone could possibly make. The British Crime Survey, for anyone unfamiliar with it, is an annual self-reporting victimisation survey in which those taking part are asked to provide information about their experiences, if any, of having been a victim of crime in the twelve month period covered by the survey.

It follows, therefore, that the only means by which it could count the number of homicides would be to find people capable of answering ‘yes’ to the following question –

Have you been murdered at any time in the last twelve months?

You see why that set me to wondering about just how much of Grieve’s intellectual capacity might be no more than public school gloss?

For the record, when assessing the homicide rate, the Home Offices uses data from police records, which sensibly don’t rely on self-reporting.

That brings me on to Grieve’s recent interview with Joshua Rozenberg for Standpoint magazine, which Sunder has already picked up on in regards to his rather obvious prevarication on the question of how the Tory’s proposed ‘British Bill of Rights’ might actually differ from the existing Human Rights Act and/or the European Convention on Human Rights.

Broadly speaking I’m with Sunder inasmuch as I’m buggered if can see anything in the Grieve’s comments that suggests that the Tory’s actually have a plan here, other than simply to stick the word ‘British’ on the front of HRA as a sop to some of their more xenophobic camp followers. However, I was rather struck by Grieve’s response to Rozenberg’s prodding over the issue of naming (and presumably shaming) offenders in which he pulled a little known case from 2003 out of the bag:

But Grieve is too shrewd to be caught out that easily. He cites a little-known challenge to an Essex police sergeant who wanted to introduce an “offender naming scheme” in Brentwood. The High Court concluded in 2003 that more information would be needed — preferably from the Home Office — before it could decide whether the possible benefits of such a scheme were proportionate to the intrusion into an offender’s privacy. Grieve regards that as a call for guidelines which the Home Office failed to provide.

The Case – R (on the application of Ellis) v Chief Constable of Essex Police [2003]

This intrigued me enough to warrant a little digging for more information on this case, which led to, in turn, to tidy little summary of both the case and the High Court’s judgement provided by the law firm that acted for the plaintiff in this matter, which explains the proposed scheme in the following terms:

The scheme was introduced with a view to reducing burglary and car crime in the Brentwood area, and was implemented in an attempt by Essex police to perform its duties under the Crime and Disorder Act 1998 to implement strategies for reducing crime. It involved displaying posters at some 40 sites showing the name and face of a selected offender, the nature of his offence and the sentence he was serving. Essex police’s protocol governing the scheme required that only offenders serving at least 12 months in prison would be selected for inclusion in the scheme and that the offender and his legal representative were to be given written notice on the day of sentencing and given seven days in which to register an objection. The selection would then require approval from a senior officer after a risk assessment carried out in consultation with the probation service and social services.

The introduction of this scheme was opposed not only by the plaintiff, who would have been the first offender named in this way, by both the local authority, NACRO and by the Probation Service who argued that naming the plaintiff (E) in this manner would:

…increase his risk of homelessness, drug misuse, re-offending and non-compliance on licence, and was likely to increase the risk of harm to the public. They also concluded that there was a risk of harm to E’s parents, ex-partner and young daughter who all lived in the locality.

To which the police responded by arguing, somewhat alarmingly, that:

…his [E’s] conduct on release was unlikely to be affected, his crimes had already been reported in the press, his ex-partner and daughter had changed their names, and E had indicated that he intended to move away from Essex.

A view that the judge criticised as a ‘superficial reaction to the risk factors identified by the probation service’.

By the time the case made it to the High Court, Essex Police had decided not to proceed with the scheme in E’s case and to put the entire scheme on hold until it had been given the once over by the judiciary, leaving the judge to rule only on the principle of the scheme.

The Judge’s Ruling

As such, the judge took the following general view on the principle of ‘naming and shaming’ offenders:

1. That there is a general presumption against the police disclosing information about offenders unless there is an overriding public interest predicated on the necessity of preventing or detecting crime or protecting vulnerable people.

That pretty much covers the issue of everything from putting up wanted posters to making appeals for information on news broadcasts and programmes such as Crimewatch. Warning the public that a dangerous offender is at large or seeking information that might lead to an arrest is not a problem.

2. There should only be disclosure where there was a pressing need, and the police must first obtain as much information as reasonably practicable, including from other agencies.

Again, that seems reasonable – this isn’t the Wild West so asking the police to exhaust all other avenues before making a public appeal should present no difficulties unless there’s an imminent risk to the public or to a victim, as happens in the case of kidnapping, that might justify short-circuiting that process.

3. It is a principle of law that the police were not entitled to punish and that they should not seek to do so by “naming and shaming” offenders.

This one seems to have been given considerable weight by the judge, who went on to add that ‘[t]he scheme also involved a degree of unfairness in that it discriminated between those offenders who were included and those who were not, and the former would see inclusion as a form of additional punishment.

It is a long-standing feature of our criminal justice system that the judiciary has a marked dislike of arbitrary administrative rules, this being something that the current government, and its predecessors, have frequently fallen foul of in their efforts to ‘streamline’ decision making and turn it into a wholly bureaucratic exercise in box-ticking.

4. It was also a principle of law that a convicted person retained all his rights that were not expressly taken away by law.

Moreover, the judge also indicated that rights of those most closely associated with the plaintiff, his family, ex-partner and, particularly, his child needed to be taken into account, particularly in terms of both their article 8 right to a private and family life and any risks that ‘naming and shaming’ E might conceivably place them under. Although not referenced explicitly, one has to wonder whether the fact that we – unfortunately – live in a country where media generated hysteria over paedophiles resulted in the home of a paediatrician being vandalised might not have influenced the judge’s thinking in this case.

Ultimately, and in the absence of specific set of circumstances to address, the judge reserved judgement in this matter, taking the view that the legality of the proposed ‘naming and shaming; scheme would have to remain uncertain until it was either settled by parliament, in statute law, or until a case arose in which the circumstance of a specific individual could be addressed. The  judge did however state that had the case actually been brought on the basis that the plaintiff was to be ‘named and shamed’ then, on the facts of the case, he would have ruled in the plaintiff’s favour.

Should we be concerned – Yes.

Once you understand the detail of this case, and particular once you’ve read the judge’s carefully reasoned judgement it become apparent that what Grieve is alluding to in citing this particular case is the restoration, in a modern idiom, of a very medieval form of ‘justice’, one that carries and uncomfortable whiff of the pillory and the branding iron.

The proliferation of both offender’s registers and of measures which place long-terms behavioural conditions on ex-offenders after their release from prison over and above the usual strictures of probation,e.g. CRASBOs which both extend long past the point at which a sentence is served out in full, even allowing for remission for good conduct, and apply penalties for breaches far in excess of those levied for the original offence.  For all that for all that there may be some justification in using both measures where its apparent that an ex-offender is likely to pose a continuing risk to the public,  even after release, they nevertheless eat away at the important principle that an offender has repaid his debt to society on completing his or her sentence.

What Grieve appears to hinting at here would take that even further and moreover, in a direction in which the risk of vigilantism and mob justice would be significantly heightened by a measure that, however innocuous it might sound to some, goes against every principle that has informed the development of English justice for a century and more.

Moreover, it seems to confirm that, much like the current government, the Tories real intent in proposing its own replacement for the Human Rights Act is that of putting our rights and liberties on a footing that is, philosophically, Burkean in character – i.e. in a manner under which civil liberties are conferred on individuals in proportion to presumed moral character rather than applied universally to all. Conveniently, or maybe expediently, this is very much the principle that underpins the populist assaults on the Human Right Act mounted by the ‘popular’ press, particularly the Daily Mail, Daily Express and The Sun, all of which demand not only that offenders should be required to surrender some of the rights and liberties as part of their sentence, in just punishment for their crime(s), but that they should be regarded as having, generally, fewer rights and freedoms than others, even after their sentence is served out in full.

History has provided us with no shortage of examples of the consequences of such a ‘philosophy’, it being but a short step from treating a group as being worthy of only a lesser degree of liberty than that afforded to the rest of society to treating that same group as being less than human, with all the attendant horrors that implies.

Well might Grieve dissemble in the face of such possibilities – assuming he understands them.

    Share on Tumblr   submit to reddit  


About the author
'Unity' is a regular contributor to Liberal Conspiracy. He also blogs at Ministry of Truth.
· Other posts by


Story Filed Under: Blog ,Civil liberties ,Conservative Party ,Crime

Sorry, the comment form is closed at this time.


Reader comments


“Conveniently, or maybe expediently, this is very much the principle that underpins the populist assaults on the Human Right Act mounted by the ‘popular’ press, particularly the Daily Mail, Daily Express and The Sun, all of which demand not only that offenders should be required to surrender some of the rights and liberties as part of their sentence, in just punishment for their crime(s), but that they should be regarded as having, generally, fewer rights and freedoms than others, even after their sentence is served out in full.”

Presumably the loss of ability to sue for libel, should said shitrags start publishing inflammatory garbage about them that demonises them and their family.

Taken to its logical conclusion, what they’re arguing for benefits right-wing parties of the privileged as well – it’s well-known that the loss of voting rights that comes with a felony conviction in some states of the US has the knock-on effect of disenfranchising the poor (and usually black) citizens, who tend not to vote Republican.

it’s well-known that the loss of voting rights that comes with a felony conviction in some states of the US has the knock-on effect of disenfranchising the poor (and usually black) citizens, who tend not to vote Republican

Quite – those are some of the most disreputable laws to be found in any Western democracy.

Unity,

Broadly speaking I’m with Sunder inasmuch as I’m buggered if can see anything in the Grieve’s comments that suggests that the Tory’s actually have a plan here, other than simply to stick the word ‘British’ on the front of HRA as a sop to some of their more xenophobic camp followers.

I’m pleased to see that I’m not the only one – and that Unity is with me here.

Great OP.

By the way, there are a few documents linked to in the other thread by Evan Price that mention Bills of Rights and Obligations, written by Conservative lawyers… I wasn’t aware this was a Conservative approach to rights and freedoms.

“their [Public School] education gave them such a ‘gloss’ on their character that it could take ten years to realise just how stupendously thick they really were”

Compare this:

“The UK’s most expensive private schools are producing pupils who achieve the worst grades at university, according to research.

“An eight-year study of graduates’ results by researchers at the University of Warwick suggests that the more parents pay in school fees, the less chance their children have of getting a good degree.

“They believe this is due to the fact that A-level results are a product of both potential ability and coaching – the better the coaching, the lower the natural ability a student needs to get the A-level grades necessary to gain a university place.

“However, once at university, potential ability becomes more important and the boost provided by the independent schools’ coaching does not continue. . . .”
http://news.bbc.co.uk/1/hi/education/2552523.stm

For all the concern about the products of fee-paying schools, it is perhaps difficult to appreciate that less than 7 per cent of all pupils at school go to “non-maintained” schools.

Two maintained boys grammar schools within walking distance of where I sit achieve better average A-level results than Eton.

11. Bob B . Manchester Grammar Schol used to vie with Winchester College for being the most academically successful school in the UK. My grammar schools were academically better than many public schools. Historically , Eton never had high academic entry standards; this was provided by the Kings Scholars who had to do well in the scholarship exam.

@5

But the decision time that splits a person’s life into “academic” and “vocational”, at the mere age of 11, always was a bit arbitrary, wasn’t it?

@6: “But the decision time that splits a person’s life into ‘academic’ and ‘vocational’, at the mere age of 11, always was a bit arbitrary, wasn’t it?”

It was for much that kind of reasoning which led the then high-Tory Leicestershire County Council to pioneer comprehensive schools, the first of which, Oadby Beauchamp, opened in 1958. The political decision was pragmatic: the county’s population was growing rapidly in the late 1950s and 1960s and an increasingly middle-class electorate would not have put up with selection at 11. The City of Leicester, with a usually Labour controlled council, resisted introducing comprehensive schools and retained selection through to the reform of local government in the early 1970s.

The recognised failures of the selection system were largely: (a) the provision of few properly resourced and motivated technical schools for vocational schooling, contrary to the original vision of the 1944 education act; and (b) the wide dispersion in 11+ selection rates across Britain ranging from c. 15% in one authority oop north through to repeat opportunities to sit the 11+ exam again in parts of south Wales, largely reflecting the numbers of local grammar school places available. The average selection rate for the selective schools was reportedly c. 25% before comprehensive schools became the normal experience.

There are currently only 164 remaining, selective grammar schools in Britain. Several west European countries have retained vestiges of selective schooling of a kind, such as the gymnasiums in west Germany and surviving lycees in France.

Btw Nobel Laureate Sir Peter Mansfield FRS, failed his 11+ exam and left his secondary modern school at 15 to become an apprentice bookbinder. He took A-levels at nightschool to gain a place to read physics at Queen Mary College London from which he graduated in 1959. He went on to become professor of physics at the Univeristy of Nottingham.
http://en.wikipedia.org/wiki/Peter_Mansfield

In the course of a career, I’ve encountered several distinguished academics who virtually boasted that they had failed their 11+ exam.


Reactions: Twitter, blogs
  1. Liberal Conspiracy

    :: A Whiff of the Branding Iron http://bit.ly/16pmQ6

  2. Louis Féat

    RT @libcon Liberal Conspiracy » A Whiff of the Branding Iron http://bit.ly/16pmQ6

  3. Leanne Thomas

    Liberal Conspiracy » A Whiff of the Branding Iron: … ex-partner and, particularly, his child needed to be tak.. http://bit.ly/pWEQO

  4. Liberal Conspiracy

    :: A Whiff of the Branding Iron http://bit.ly/16pmQ6

  5. Louis Féat

    RT @libcon Liberal Conspiracy » A Whiff of the Branding Iron http://bit.ly/16pmQ6

  6. Leanne Thomas

    Liberal Conspiracy » A Whiff of the Branding Iron: … ex-partner and, particularly, his child needed to be tak.. http://bit.ly/pWEQO

  7. uberVU - social comments

    Social comments and analytics for this post…

    This post was mentioned on Twitter by libcon: :: A Whiff of the Branding Iron http://bit.ly/16pmQ6

  8. loveandgarbage

    I love "Have you been murdered at any time in the last twelve months?" – typically brilliant & incisive from @Unity_MOT http://bit.ly/4iaYhZ

  9. loveandgarbage

    @Unity_MOT – You've had some brilliant stuff at Lib Con and on MOT recently not least http://bit.ly/2iIBIA & http://bit.ly/4iaYhZ

  10. loveandgarbage

    I love "Have you been murdered at any time in the last twelve months?" – typically brilliant & incisive from @Unity_MOT http://bit.ly/4iaYhZ

  11. loveandgarbage

    @Unity_MOT – You've had some brilliant stuff at Lib Con and on MOT recently not least http://bit.ly/2iIBIA & http://bit.ly/4iaYhZ

  12. Matthew Baker

    Public school education gives a 'gloss' on character that takes years to realise how thick a student actually is: http://is.gd/5lL3x





Sorry, the comment form is closed at this time.