(See GENERATIA 2000 Catalogue, on this website)

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.

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)

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)

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.

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?

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.

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:

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:

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)

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:

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.

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)

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.

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:

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:

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

(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:

Dobson, Payne, 1982

‘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

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