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WHO IS IN CONTROL? Law Enforcement by State and Community

Cristian Butuman

(See GENERATIA 2000 Catalogue, on this website)

 

State and control

On top of the civil society and within the framework of modern nation-states, the state is, broadly speaking, the controlling element. It stabilises society, by preserving a relative status quo, according to the legislature in charge. Here we have as a cement the executive power in state - the government. In terms of Internal Affairs and at bottom level the policy of the government is enforced by the police, where we get a next item on the menu - policing.

Is policing aggressive or defensive, an action or an reaction? As the state is generally accepted as vouchsafer of civil society in its present form, we might presume its action as being defensive at a wide scale (we are dealing with the case of a stable, democratic state, i.e. GB). It takes two to tango, so the next question would be against whom or what is the state being defensive? There is a vast terminology that describes the enemy of the state (or be it the civil society, the two terms are often perceived as overlapping), with one common aim of extracting the offender, deviant, delinquent, criminal, etc. off the social framework. In the case of social (community) control, this function of delimiting and extruding aggressors off the social framework is exerted by the society itself. (Abercrombie, Warde et al, pp. 445) As this controlling role was technically taken over by the police1) the social perception has become equivocal and often distrusting or even adverse to actions taken by the police. Sociologists have perceived this fact in the 1960s and a ‘revolution’ has taken place in the sociology of deviance2). The focus has shifted towards political aspects of social problems in general, and deviant behaviour in particular, which are not objective ‘givens’ of social life, but are identified and shaped in an ongoing political process.3)

This paper’s intention is therefore to analyse in brief various definitions given to crime (offence, deviance, delinquency, etc.), the way community and centre (state - police) act and interact (and sometimes are opposed) in preventing criminal acts, referring to the most equivocal boundary of the field, namely the political crime, as present in Northern Ireland, case in which a flagrant opposition between the approach by the civil society and the police cannot be overlooked.

A second part deals with the hedging-strategies adopted by the state, providing the legal framework to efficient police control, while avoiding the stigma of ‘police-state’, in terms of international law (civil rights) - derogations.

Before moving over to political offences and their way of perception, here are three indicators which can shape the response of a social group (community) with regard to a certain deviant act (deviance)

Deviance

Starting with defining deviance as a variation from the social norm, a Canadian criminologist, Hagan, argues that we should think of deviance as being a continuous variable. There is an obvious difference between multiple murder and an adolescent marijuana use. He suggests that most deviant acts can be located empirically on a continuum of seriousness between these two extremes. Hagan identifies three measures of seriousness:

1 The degree of agreement about the wrongfulness of an act. This assessment can vary from confusion and apathy, through high levels of disagreement, to conditions of general agreement.

2 The severity of the social response elicited by the act. Social penalties can, of course, vary from life imprisonment to polite avoidance.

3 Societal evaluation of the harm inflicted by the act. Here the concern is with the degree of victimisation and the personal and social harm a set of acts may involve.

Hagan (1984)

This approach to the adverse response brings a certain insight but is also contentious. Hagan visualises the situation as a pyramid, with the less-serious forms of deviance at the base and the more serious ones at the top.4)

To go further, acts of deviance gathered under the term crime (Hagan’s major division is between criminal and non-criminal deviance. He argues that ‘the most serious forms of deviance are defined by law as criminal’.5)

 

Crime

can be also split according to the response induced to society / public opinion:

Consensus crime - murder, rape, robbery - outrage and scare the public.

Conflict crime - public disorder offences, chemical offences, political crimes (espionage, terrorism and conspiracy), minor property offences, "rights-to-life" offences (abortion, euthanasia) - "we lack societal consensus on the dimensions of public disorder, the use of comforting chemicals, permissible politics, the protection of private property and the limits of life" (Abercrombie, Warde et al., pp.449).

Hagan deals with the apathetic-to-adverse reaction to deviance and crime. However, beneath the bottom of his pyramid I would add another layer, represented by those crimes listed under Conflict crime, which might receive an empathic response from a certain part of the public opinion. This is obviously the case in political crime, and even in its extreme form - terrorism.

The empathic character that community control itself can acquire under certain circumstances can be exemplified on the Northern Irish case.

 

Community control

The community control movement intends to point out the social alternative to police control ( This alternative, decarceration, means dealing with offenders in the community rather than in institutions such as prisons, detention centres)6). Cohen (1985) exposed the illusions of a community-control movement. As he puts it, as a ‘widening’ effect, ‘it is ironic, that one of the major results of the new network of social control has been to increase, rather than decrease, the amount of intervention directed at many groups of offenders; and to increase, rather than decrease, the total number of offenders who get into the system in the first place.’ (Abercrombie, Warde et al., pp. 472)

A look at Note 6) is very useful in analysing the interaction between community and police. Which one of the two has failed in the case of Northern Ireland?

 

Sectarianism

A very strong reason for failure in community control is the sectarianism that can develop in closed communities, with deep-rooted anxieties to an ‘enemy-community’. Sectarian socialisation can occur within a local social structure. Sectarian ideology is an essential element in the culture of both nationalist and unionist blocs in Northern Ireland. McAuley gives an exhaustive description of the origins and growth of the Ulster Defence Association. He writes: ’Sectarianism is central to an understanding of the social relations of loyalism and to an understanding of day-to-day life in loyalist areas of Belfast.’

The embryonic form of the UDA, the Shankill Defence Association, was actually formed to oppose the effects the Belfast Urban Renewal Programme was having on the local area. In response to a worsening security situation, the group "readily turned into a paramilitary group patrolling the upper Shankill and the border with the Catholic Falls"(McAuley, pp. 48). As the Provisional Irish Republican Army emerged from a split in the republican movement, and Catholic opposition to internment intensified, the loyalist vigilante organisation grew in importance as local groups began to amalgamate and organise.

...somewhere near us there was a big fight going on and we Protestants wanted to be on the winning side. (McAuley, pp. 48)

The communities empathy on both loyalist and republican side towards illegal political activities, the self-styled policing, leads us to Note 6), where the police, as third party, or referee, has adopted the military policing style. The result was the establishment of a police state, with its five characteristics in policing: centralisation, increasing police powers, militarisation, pervasiveness, and de-democratisation.

The ‘Centre’ managed to justify its action, by invoking criminal law. The term terrorism proved very effective in allowing the power-holder to enforce emergency measures, such as internment, etc., in the framework given by the Prevention of Terrorism Act. Many exposed them as conflicting with Human Rights treaties:

Recently, the European Court of Human Rights condemned the British government for arresting men and holding them unfairly for four to seven days without charge under the PTA. (Sean Hillen, Irish Echo, NY June 12 1991)

 

 

 

Legal response to terrorism

Yes , some of those measures do restrict freedom. But those who choose to live by the bomb and the gun, and those who support them, can’t in all circumstances be accorded exactly the same rights as everyone else. We do sometimes have to sacrifice a little of the freedom we cherish in order to defend ourselves from those whose aim is to destroy the freedom altogether - and that is a decision we should not be afraid to take. Because in the battle against terrorism we shall never give in. The only victory will be our victory: the victory of democracy and a free society.

Margaret Thatcher,

at the Lord Mayor’s annual Banquet in November 1988

There is a contradiction in terms in Thatcher’s rhetoric - deprivation of freedom in the name of democracy would mean the demolition of democracy’s fundament itself. However, in terms of international civil rights, freedom-restricting measures can fully comply to the wording of the European Convention (art. 4) or the later passed American Convention (the two most important multilateral treaties on human rights), if enforced according to the Human Rights Standards in States of Emergency in the context of Multilateral Treaties, recte the Derogation Clause. However, what defines the emergency? The main features of emergency can be very well superimposed on the Northern Irish context:

a) The Emergency Must be Actual or at Least Imminent7).

b) Its Effects Must Involve the Whole Population8).

c) The Threat Must be to the Very Existence of the Nation9).

The state of emergency is also defined as temporary by its very nature and can be declared, for instance, under the circumstances of political crises: war (international war, civil war, war of national liberation), internal unrest, grave threats to public order or subversion. (Oraa, pp. 31)

 

 

The PTA (Temporary Provisions)

In compliance to the provisions of the European Convention and taking a firm stance against the rebelling Northern Irish factions, the British instituted the Prevention of Terrorism Act, which made special treatment for specific political prisoners and/or suspects legally possible. The PTA has been enforced since 1974. Home Secretary Roy Jenkins had said at that time, that the Act was ’draconian’, ’unprecedented in peacetime’, but ‘fully justified to meet the clear and present danger’. It passed practically without amendment. To explain the features of the PTA, the following measures are listed:

Proscription - Banning applies to the following paramilitary factions (as one can see, the list is rather balanced in terms of Protestant/loyalist and catholic/republican organisations): the Irish Republican Army, the Irish National Liberation Army, the Ulster Volunteer Force, the Ulster Freedom Fighters, the Red Hand Commando, Finn na hEireann, Cumann na mBan, Saor Eire. This means that it is an offence in Britain, punishable by up to ten years in jail:

a) to belong to one of the listed factions, also soliciting or inviting support on their behalf.

b) to arrange, manage, or address any meeting of three or more persons if it is known that the meeting is to support or to further the activities of one of the banned factions or is to be addressed by someone belonging to one or other of them.

c) to wear any item of dress or wear, carry, or display any article, ‘in such a way or in such circumstances as to arouse reasonable apprehension that he is a member or supporter of a proscribed organisation’. The latter case may incur a hefty fine or six months’ imprisonment. (Ewing, Gearty, pp. 216)

Exclusion - It prohibits a person from ‘being in, or entering, Great Britain’ with a view of being concerned in the commission, preparation or instigation of acts of terrorism.

‘Terrorism’ is defined as ‘the use of violence for political ends’ including ‘any use of violence for the purpose of putting the public or any section of the public in fear’10).

Detention - Section 14 of PTA includes a discretion to arrest, without warrant, where a constable has reasonable grounds for suspecting an offence against any of the proscription, exclusion, or financial provisions in the legislation. It permits arrest where reasonable suspicion relates to ‘a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism’. ( Ewing, Gearty pp. 221)

 

 

Conclusion

If generally, when speaking of lawlessness, one is apparently tempted to adopt the definitions given by the centre (as these are the written laws), he is most likely, unconsciously, applying his community’s set of unwritten laws (unless, perhaps, if he is a professional - attorney, etc.). Therefore, it is hardly surprising that the contact with a clear-cut State-made definition might raise discomfort. The State (centre) covers a broad array of communities with all different perceptions (the situation worsens even, in the case of federalism or broader super-state structure -EC, etc.). On the other hand, the State, as a central body, defends interests which are often different of those of the peripheral, small community. There will be practically always a dispute between State and community in terms of control. This situation becomes obvious in extreme situations, as is the Northern Irish case. Here the State becomes for part of the communities an alien force to be opposed. Crimes as political offences can get an aura of legitimacy. The community’s sense of control becomes perverted with a feeling of being cornered (there are always two enemies - the State represented by the RUC and the army, and the other) and permissive to apparently defensive acts.

Leaving this rather obsolete dark scenario behind, I intend to end by saying, that no matter how fuzzy the concept of control in the community, or slick the approach by the State, the strength, and ironically the weakness, of one lies in its flexibility, the other’s in its static, elaborated character. Reconciliation in Northern Ireland has become central on the local communities’ agenda and the State will need to loosen up in the course of negotiations. And, as history has proven, peace is conditioned by the two entities finding a safe middle-path.

Notes

1) However, there is a strong emphasis on the police’s side with regard to its independence from government-control:

....the police are not servants of government at any level. We do not act at the behest at the behest of a minister or any political party, not even the party in government. We act on behalf of the people as a whole (Sir Robert Mark, Commissioner of the Metropolitan Police, quoted in Abercrombie, Warde et al, pp. 463)

2) This involved the rejection of absolutist definitions of deviant behaviour (which assume that everyone agrees about what is deviant) in favour of an approach that ‘sees such behaviour as that which is defined or labelled in a particular way. This approach does not endear sociologists to those in power, for power-holders are in the business of trying to make their own definitions of deviance hold. It is not in their interest for the idea to get around that deviance is a relative concept and that there may be alternative versions of reality.’ (Abercrombie, Warde, pp. 445)

3) ‘We do not all agree on what is deviant behaviour. What is regarded as a problem by one group may not be seen in this way by another group in society. We are, therefore, engaged in a political process in which the values and interests of various groups are frequently in direct or indirect opposition to each other. The task - or perhaps the trick - of one group is to try to convince others that conditions which challenge their values or threaten their interests are objectively harmful and need to be corrected. In this sense, deviancy is created or socially constructed. (Abercrombie, Warde et al, pp. 444)

4)

Evaluation of social harm Severity of social response Agreement to norm

Source: From The Disreputable Pleasures by John Hagan, p. 111. Copyright ã McGraw - Hill Ryerson Ltd. 1984. Reproduced without permission.

5) One of the arguments of radical criminologists is that the powerful manage to avoid some of their more dangerous activities either being proscribed (forbidden) by criminal law or, if included, the sanctions are light.

6) In terms of relationship between the centralised police and the community control, Lea and Young (1985) identify two kinds of policing, defined by three major differences between the contrasting styles of consensus and military policing, in terms of the support of the community, the flow of information, and the role of stereotypes:

Consensus policing

1 Policing with the support of the community. The community supports the police because it sees them as doing a socially useful job. They are protecting the community against crime and is something that the community recognises as being harmful to its well-being.

2 Because of the support, there is a reasonably high flow of information concerning crime.

3 The more information is provided, the less recourse there is to stereotypes as the basis for starting investigations.

Military policing

1 Policing without consent. The community does not support the police because it sees them as a socially or politically oppressive force in no way fulfilling any protective functions.

2 The flow of information to the police approaches zero. Much of the police activity will consist of random harassment. The community may develop a type of surrogate policing, such as vigilante squads, which may operate clandestinely.

3 Maximal use of stereotypes; all Catholics, etc. are criminal.

Source Lea and Young, in Abercrombie, Warde et al., pp. 466

7) Under international law, so-called states of emergency of a ‘preventive nature’ are not lawful. This means, it is not permissible for States to derogate from human rights in order to face possible exceptional situations which have not yet arisen. There are however so-called Lawless Cases, such as the French version: ‘une situation de crise ou de danger public exceptionnel et imminent’. Another situation found lawful by the European Court in the Lawless Case is the declaration of emergency made by the Irish government, taking into account the ‘imminent danger to the nation caused by the continuance of unlawful activities in Northern Ireland by the IRA and various associated groups, operating from the territory of the Republic’. (Oraa, pp. 28)

8) The question can arise, whether it is possible according to the derogation clauses to declare a (non-abusive) state of emergency only in one part of the territory. In this respect two different situations can be envisaged:

an emergency in one part of the territory but affecting the whole nation

an emergency in one part of the territory and affecting only that part of the nation

The first situation presents no major problems. One can think for instance of terrorist activities that take place mainly in one area of the country but which have an influence on the whole nation. In the Ireland vs. UK case it was said that the emergency must affect ‘the whole nation and either the whole of the territory or certain parts thereof’. (Oraa, pp. 28) Nevertheless, an emergency in a part of the territory and affecting only the population established there is also accepted as a legitimate emergency situation.

9) This is understood as a threat to the organised life of the community constituting the basis of the State. The threat could be to the physical integrity of the population, to the territorial integrity, or to the functioning of the organs of the State. Thus, the majority in the European Commission and Court found that, because of the obstacles for the normal operation of tribunals in cases concerning IRA terrorists, preventive detention, with due guarantees, was in fact a legitimate measure in order to overcome the imminent danger. (Oraa, pp. 29)

10) A cause célébre of exclusion was that of Gerry Adams, Martin McGuinness and Danny Morrison (1982). The Prime Minister later claimed that the exclusion was based ‘on intelligence about the men’s involvement in terrorist activity’. The order against Adams was immediately lifted when he was elected to Parliament in 1983. However, the Government did not say that they no longer suspected Adams of any association with terrorist groups. (Ewing, Gearty, pp. 220)

11) The Principle of Proclamation of The State of Emergency (EC)

External supervision - Under the European Convention

The Principle of Good Faith (the construction of the Irish Government)

prima facie

The Concept of the Margin of Appreciation

In principle, the judicial review of the Government’s decision as to whether facts of a particular situation amounted to a public emergency and which measures were strictly required could be made using a purely subjective criterion (the good faith of the Government), or an objective criterion (after examining all the objective conditions of art. 15). - the Lawless case

The concept of the margin of appreciation is that the a Government’s discharge of these responsibilities is essentially a delicate problem of appreciating complex factors and of balancing conflicting considerations of the public interest, and that, once the Commission or the Court is satisfied that the Government’s appreciation is at least on the margin of the powers conferred by article 15, then the interest which the public itself has in effective government and in the maintenance of order justifies and requires a decision in favour of the legality of the Government’s appreciation.

(Oraa, pp. 34-45)

12) ‘[Since 1990] there has been a substantial increase in the numbers of groups and projects currently active in community relations work. Some groups have been born out of the desire to do something constructive in the wake of a particular atrocity. Other organisations concentrate on particular issues or with a significant specific group who have suffered as a result of the conflict (WAVE and Peace Train Organisation). A further, more obvious and encouraging trend is the growth in organisations in the voluntary and public sectors who have evolved practical responses to sectarianism within their area of concern (WEA, Playboard NI or National Council of YMCA’s are current examples)’. (Hinds, pp. v)

13) The importance of compromises in policing in liminal situations as the Northern Irish one is very well reproduced in a report from January 16 1996 in ‘The Irish Times’, on the Mitchell report on arms decommissioning:

Amnesty key to arms disposal

SENATOR MITCHELL refused to comment, on the grounds of confidentiality, on reports that the RUC Chief Constable, Sir Hugh Annesley, had confirmed to the Commission that the paramilitaries would not disarm prior to all-party talks.

On the weapons amnesty recommendation, General de Chastelain said that weapons would not be handed over if those who held them felt they could be prosecuted based on forensic examination of these weapons.

When the point was further put that such an amnesty might prevent the RUC and Garda from pursuing outstanding murder inquiries, Senator Mitchell replied: ``If you do not provide an amnesty, then you are ensuring that these arms will not be disposed of.''

(Reproduced without permission)

List of attacks committed by catholic Northern Irish terrorists in the 1970s

February 22 1972

Aldershot

Bomb at Parachute Regiment headquarters in Aldershot, England kills 9 soldiers and civilians

Official IRA

August 18 1973

UK

Fire and letter bomb campaign is launched in London, Birmingham and Manchester. In 6 weeks some 30 people are injured by 40 bombs. Many other bombs are safely defused.

Provisional IRA

December 18

London

Bomb in 2 cars and a parcel bomb injure 60 people in reprisal for jailing of IRA terrorists who exploded car bomb outside the Old Bailey in March 1973

Provisional IRA

April 26 1974

Dublin

Rose Dugdale is arrested for the theft of Sir Alfred Beit’s collection, which she threatened to destroy unless four convicted IRA terrorists are transferred from English to Irish jails. Dugdale is later sentenced to nine years in prison. The paintings are recovered unharmed.

IRA

January 8 1976

Ireland

Detachment of British Strategic Air Service deployed in Armagh. The task is to wrest control of that "bandit country" from the Provos.

Provisional IRA

March 11

Dublin

Eddie Gallagher is jailed for 20 years and Marian Coyle for 15 for kidnapping Dutch industrialist Tiede Herrema in an attempt to force the freeing of Gallagher’s mistress, Rose Dugdale.

Provisional IRA

July 31

Dublin

British ambassador to Ireland, Christopher Ewart-Biggs is assassinated by a culvert bomb.

Provisional IRA

October 28

Belfast

Maire Drumm, violently anti-British Provo leader, shot to death in hospital while recovering from an operation.

UDA

Splinter Group

February 9 1977

London

Balcombe Street gang terrorists are found guilty of multiple murders and sentenced to life imprisonment.

Provisional IRA

March 22

1979

Den Haag

Sir Richard Sykes, British Ambassador to the Netherlands and his Dutch footman shot dead at front door of residence.

Provisional IRA and

Red Help

March 30]

London

Airey Neave killed by Mercury-fused car bomb as he drives out of House of Commons car park.

INLA

August 27

Sligo

Earl Mountbatten murdered by radio bomb planted in his fishing boat. Three other people die.

Provisional IRA

August 27

Warrenpoint

18 British soldiers killed in double bomb ambush.

Provisional IRA

November 2

Dublin

Arms worth US 1,000,000 destined for IRA seized from boat in Dublin Harbour.

IRA

Dobson, Payne, 1982

 

Bibliography

 

Amnesty key to arms disposal’, The Irish Times, January 16 1996,

http://www.irish-times.ie/

Christopher Dobson, Ronald Payne, The Terrorists. Their Weapons, Leaders and Tactics, Facts on File, Inc., New York 1982

Jaime Oraa, Human Rights in States of Emergency in International Law, Clarendon Press, Oxford 1992

James W. McAuley, ‘Cuchullain and an RPG-7: the ideology and politics of the Ulster Defence Association’ in Culture and Politics in Northern Ireland, ed. Eamonn Hughes, Open University Press, Philadelphia 1990

Joe Hinds, A Guide to Peace, Reconciliation and community Relation Projects in Ireland, Community Relations Council, Belfast 1994

K. D. Ewing, C. A. Gearty, Freedom Under Thatcher, Clarendon Press, Oxford 1990

Nicolas Abercrombie, Alan Warde et al. Contemporary British Society, Polity Press, Cambridge 1992