This is a continuation of a series that exposes the reality of courts as part of the exposure of the reality of the rule of law.
The series involves quotes from the book by Doreen McBarnet (1983) Conviction: Law, the State and the Construction of Justice as well as short commentaries related to the quotes. I use her book as a way of exposing the real nature of the rule of law and the role of courts in both hiding the real nature and enforcing the real nature of the rule of law.
The courts and the police are interrelated, and as a consequence what the police do and the nature of the police have an essential bearing on what courts do and on the nature of courts–as courts have an essential bearing on what police do and the nature of the police.
Does the law protect workers, citizens, immigrants and migrant workers from arbitrary arrest, and does it treat the police on the same level as workers, citizens, immigrants and migrant workers?
The Ideology of Evidence for Arrest Versus the Reality of Arrest to Find Evidence (Arbitrary Arrest)
Theoretically, or ideologically, the police are supposed to have some basis for arresting citizens rather than arresting them and then finding evidence. From page 27:
In principle then the police must have evidence against someone before detaining him, not detain him in order to obtain evidence against him-exactly the principle one might expect to be enunciated in an ideology of legality which seeks to safeguard the citizen from the state by prohibiting arbitrary arrest. At the level of abstract principle, due process and crime control seem well and truly at odds. And the question facing us is how do the police, in the face of legal definitions of due process, acquire the requisite information for incriminating suspects and setting the whole process in motion?
Police work is typically presented in relation to the right of a citizen not to incriminate oneself (as typically presented in police shows (such as those on Netflix and Amazon Prime), with the police then engaged in a process of investigation to establish evidence that substantiates criminal charges. This situation, however, is the exception of criminal charges rather than the rule. Page 27:
…how difficult the incrimination process is depends on the kind of offence involved. In what the police see as ‘real police work’ (Cain, 1971, p. 88) incrimination may well be problematic. For this is the stuff detective fiction is made of, where only the offence comes to light and both offender and evidence for incrimination have to be established by investigation. But this is not the kind of offence that dominates the work of either the police or the courts. Petty offences, particularly offences against public order, are much more typical and these are of quite a different nature. They are largely a matter of police-citizen encounter with the police defining marginal behaviour as subject to arrest or not, with the
policeman and the culprit on the spot, with no investigation involved, and the process of incrimination simply begun and ended with the charge. In short for the vast majority of cases that are processed by the police and the courts, incrimination, and the constraints of law on incrimination, are simply not a problem.
This does not mean that the police are satisfied with such a situation. They do indeed seek to obtain enhanced powers that would allegedly permit them to widen their field of arrests to include more professional criminals. The problem is that such professional criminals, as professional, often will adapt their procedures to take into account the changed procedures of the police, thereby once again eluding the police. The probable result is that either it will be more likely that the same petty offenders will be arrested, or more petty offenders will be arrested. Page 27:
Of course the police demand for more powers is less concerned with such petty offenders than with the ‘hardened criminals’ who escape conviction by slipping through the net of procedures that are ‘excessively solicitous towards accused persons’. The irony is that
the people most likely to be caught by wider police powers are the petty offenders who, as it were, know not what they do. Successful professional criminals are, as Mack ( 1976) notes and Mcintosh ( 197 1) demonstrates historically, successful professional criminals
exactly because they can find their way round and adapt their methods to new procedure.
As an aside, but related to this, Herman Rosenfeld, a supposed Marxist radical here in Toronto, Ontario, Canada, claimed the following:
Shouldn’t that institution [the police] be thoroughly transformed, by political struggle, into a more humane, limited and less autonomous one?
Since the police, when they make an arrest, do so in the majority of cases because of petty crimes, where the person is allegedly “caught in the act,” how does Mr. Rosenfeld propose to “transform the police as an institution into a more humane, limited and less autonomous one” under these circumstances? I am still waiting for Mr. Rosenfeld’s elaboration of such a proposal. I predict that he will never elaborate on such a proposal because his statement is pure rhetoric–typical of many social reformists or social democrats.
Returning to the issue of the so-called right not to be arrested arbitrarily, not only are the vast majority of arrests for petty or minor offences but they are “easy” in that they do not involve substantial investigation or inquiry. Page 28:
there are so many marginal arrests [because] they are easy.
Arrests without warrants rarely go challenged. Pages 28-29:
… as Renton and Brown (I972) point out in discussing arrest without warrant, ‘it is not often challenged’ (p. 28). Given the methods available for challenging an arrest, this is
hardly surprising. The opportunities are limited: one may challenge the arrest in the course of a trial, one may take out a civil action or one may lodge a complaint against the police under the 1964 Police Act.
Furthermore, most such offences do not even go to trial since most of those charged plead guilty. Page 29:
But most cases do not come to trial since most defendants plead guilty (whether they believe themselves guilty or not) 4 and the legitimacy or otherwise of the arrest is therefore never challenged.
Even the presence of a lawyer hardly guarantees that police conduct will be challenged. Page 29:
… even defendants who are represented may find their lawyer advising against questioning police conduct since it might turn the judge against him (Baldwin and McConville, 1977)
If the accused does challenge the arrest, the probability of winning is less than 20 percent: Page 29:
Box and Russell (1975) show that only 18 per cent were found-by the police-to be substantiated. The improbability of successfully challenging an arrest, particularly for a trivial offence, provides one immediate reason for the ease of marginal arrests.
This lack of probability of successfully challenging the legitimacy of an arrest and being taken into custody is due: 1. in part to the vagueness in the law’s reference to the legitimacy of an arrest in the interests of justice; 2. in part to only the subjective requirement of the police’s belief that the arrest was justified and 3. in part in the history, character and living circumstances of the person taken into custody. Page 29:
The legality of custody is defined in terms of reasonableness or the interests of justice (Renton and Brown, 1972, p. 30), neither of which sets the parameters very clearly, allowing wide scope for subjective discretion. Indeed, the common law merely offers a post
hoc check on the ‘reasonableness’ of the policeman’s belief that arrest was justified. The law also accepts the belief that people ought to be taken into custody if they have a past record (Carlin v. Malloch, 1896) or are jobless or homeless. Lord Deas, in Peggie v. Clark ( 1868)
made it clear that the arrest of a member of ‘the criminal classes’ or of someone with no means of honest livelihood or fixed abode is easier to justify than that of someone who:
even although expressly charged with a crime by an aggrieved party, be a well-known householder-a person of respectability-what, in our judicial practice, we call a ‘lawabiding party’.
The homeless and jobless are automatically suspect as being of the “criminal” type; only those who work for an employer (and thus are oppressed and exploited) and, possibly, own some form of property (such as a house or condominium) as well as employers and professionals, should be free from arbitrary arrest since they form essential means or material for the continued existence of capitalist society.
As I have pointed out elsewhere (Reform Versus Abolition of the Police, Part 8: The Police and the Political Economy of Capitalism), the legal system is designed to ensure that workers remain workers for employers, and those who are on the fringes of the employer-employee relation are always suspect and easy prey for arbitrary arrests by police. This situation is not despite the law but because of the law. From pages 30-32:
Given the law’s attitude to the homeless and jobless we could not expect equality anyway. Pragmatics and rationalisations at the informal level-with the consequence, intended or otherwise, of class and racial bias-are also endorsed in formal law. As for having sufficient evidence on a specific offence, there is also plenty of scope for legally circumventing that principle. The specific offence may itself be rather unspecific: breach of the peace (whose
peace?), loitering with intent or being on premises for unlawful purposes (how does one determine purpose or intent?), possessing goods for which one cannot satisfactorily account (how many people carry receipts and what is satisfactory?), carrying implements
that could be used for housebreaking (where does one draw the line?), or as weapons. Even an empty milk bottle has been defined as a dangerous weapon (Armstrong and Wilson, I973). If the police operate at this level with wide discretion (Bottomley, 1973) it is not just because they surreptitiously take it into their own hands but because they are formally allocated discretion on what constitutes an offence via vague substantive laws and wide procedural powers.
So, in vague cases like breach of the peace, the offence exists because the police say they observed someone loitering, drunk, ‘bawling, shouting, cursing and swearing’, to quote the daily menu for the district courts, or more unusually but nonetheless an observed case, ‘jumping on and off the pavement in a disorderly fashion’ (Case 30). These offences may be, in Maureen Cain’s term, marginal. They are, as described, amazingly trivial. But they are also numerically significant ( 76 per cent of the arrests Cain (1971) observed), hence her interest in probing the non-legal reasons for police making such arrests (p. 74). But what is also important is the formal structure which makes such arrests, whatever their
Likewise, one must refer to more than informal stereotyping to explain the arrest of two young boys (Case g), a ‘known thief’ and his companion, who, according to the police evidence, were ‘touching car handles’. Whatever the motivation of the police, the legality of their action is indisputable and the stereotyping more than informal. The General Powers Act 196o lays down the law that known or reputed thieves in suspicious circumstances are subject to arrest. A known thief is someone with a previous conviction for dishonesty: previous convictions become therefore not just informal leads for narrowing-down suspects on committed crimes but legal grounds for arresting them. A reputed thief is someone who keeps bad company and has no known means of honest livelihood: stereotyping and assuming the worst are thus written into the law. Suspicious circumstances are left to the police to define. Thus police evidence in this case is expressed purely as subjective interpretation:
‘they were touching them as though to open them .. .’,
‘he seemed to say to Craig to stand back .. .’,
‘they appeared to be watching and waiting .. .’ (McBarnet’s emphasis).
Note that it is not just police practice but the formal law here which deviates from the ideals of legality, replacing arrest for a specified offence with arrest on suspicion or for prevention; replacing established law with arbitrary definitions; replacing the doctrine of trying each case on its merits with the relevance of previous convictions. Personal and bureaucratic motivations can explain why the police want to make arrests; the law itself explains why they may.
The Real Rule of Law Privileges the Police Over Citizens
The real rule of law privileges police over citizens. An arrest by the police makes the probability of a finding of a guilty verdict quite high. The police in the courts, in effect, are treated as privileged citizens who have a higher regard for the truth. From page 32:
What is more, judicial sanctions on police arrests at this level are meaningless. Vague laws and wide powers effectively sidestep standards of legality and proof by equating the subjective police decision with substantive law and requisite evidence. The police are given the statutory powers to define the limits of the behaviour that constitutes public order. It is not necessary to prove any ill effect, for example, in a breach of the peace, that anyone was offended or even affected: a breach has occurred:
where something is done in breach of public order or decorum
which might reasonably be expected to lead to the lieges being
alarmed or upset. … (Raffaeli v. Heatly, 1949; McBarnet’s emphasis)
So the refusal of members of the public to say they were offended in witnessing the incident, a point regularly made in police reports, is rendered irrelevant, as indeed judges point out to juries, reading out the legal definitions and emphasising: ‘Note that ‘might be’. There need not be evidence that anyone was actually upset’ (Case 93). Nor is there any need to prove intent in cases like these, by, for example, reference to:
any particular act or acts tending to show the purpose or intent;
he may be convicted if, from the circumstances of the case and
from his known character, the court is of the opinion that he was
intending to commit a felony. (Vagrancy Act 1824, s. 12)
No further evidence than the policeman’s general statement of his impression unsubstantiated even by details of how he formed it seems to be required. Hence Case 29 where the accused were convicted of attempted theft from cars:
Prosecutor: And was anything missing?
Policeman: No. They didn’t get in.
Prosecutor: But you are sure they were trying to get in?
Policeman: The behaviour of the boys left me in no doubt that they were trying to enter the van.
Let us now return again to Mr. Rosenfeld’s social reformist political rhetoric:
Shouldn’t that institution [the police] be thoroughly transformed, by political struggle, into a more humane, limited and less autonomous one?
Given the above situation, how does Mr. Rosenfeld propose to remedy the situation? Through phrases? He refers to “political struggle,” and yet I have yet to see Mr. Rosenfeld engage in political struggle in this area. How are arbitrary arrests to be prevented? How is the main focus of police on petty offences (if indeed they are offences at all) to be transformed into a more humane form? Political struggle for him must mean–engaging in political rhetoric (in order to hide no real political struggle through challenging the power of the police and courts either on the streets, by way of his writings or a combination of the two).
Furthermore, what does he mean by “more humane police institution?” Some police institutions are certainly better than other ones (where police are personally corrupt in various ways versus not being so, for example), but the police as an institution is in itself inhumane and an expression of inhumanity. Mr. Rosenfeld, through his rhetoric, really wants the police to continue to exist indefinitely; that is the practical meaning of his political rhetoric. His reference to “more humane police institution” is an “abstract slogan”–a slogan with little meaning in the real context in which workers, citizens, migrants and migrant workers live and experience this world.
Let us now return to McBarnet’s exposure of the reality of law as opposed to its rhetoric. Minor charges (which are the vast majority of criminal charges) require little proof for guilt to be found. Court bias–and hence the bias of the law–is to assume that the police are telling the truth and that the charged person is lying unless there is evidence to the contrary. Police who arrest on the basis of minor charges in effect are assumed to be disinterested or neutral in making the charge rather than individuals whose prime function is to maintain social order in a society dominated by a class of employers. From page 35:
For the minor offences which dominate the courts incrimination is not a problem either practically or legally. Indeed the three analytical stages of incrimination, assembling a case, and convincing the court collapse into one. The policeman’s observations constitute the grounds for arrest, the substance of the case, and the authoritative presentation to convince the magistrate. There is little at issue for the court to decide in its role of reaching a verdict-nor indeed for it to control in its role of watchdog on the police.
Arbitrary arrest, most arrests involving alleged minor offences, the unlikeness of challenging arbitrary arrest and the privileges status of police in relation to workers, citizens, immigrants and migrant workers: these are the characteristics of the real rule of law and not the rhetoric or abstract slogan of the rule of law.
The social-democratic left, however, cling to the their rhetoric or abstract slogan of “transforming the police [and courts]” into a more humane form–without ever specifying how the real world of the rule of law functions nor how they propose to transform this real world of the rule of law into such a more humane form. They cling to the rhetoric or abstract slogan of the rule of law–its public face and by that very fact hide the reality of the rule of law, with its oppressive social structures in the form of oppressive legal structures (courts and police).
Having myself been arrested and subject to police harassment (see A Worker’s Resistance to the Capitalist Government or State and Its Representatives, Part Eight), I find this rhetoric to be quite offensive. It fails to recognize the extent to which people are persistently oppressed in a society dominated by a class of employers and the associated oppressive and exploitative economic, political and social structures.
Perhaps the social-democratic or reformist left will specify how they propose to ‘transform the police and the law, by political struggle, into a more humane, limited and less autonomous one’? I doubt that they will–or can.
Workers, citizens, immigrants and migrant workers deserve much more–they deserve that their experiences of oppression and exploitation be recognized. They deserve that this recognition be the preparation for the abolition of such oppressive and exploitative conditions. They deserve to live a human life.