Introduction
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 of law and enforcing the real nature of the rule of law. (If others know of similar sources that expose the reality of law and the courts, it would be appreciated that they provide information in the “Comments” section.)
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 the Warrant System as a Protective Mechanism Versus the Reality
Warrant for Arrest
The warrant system is supposed to protect citizens, immigrants and migrant workers from unwarranted authority by the police. From McBarnet, page 38:
Given this, the warrant system provides a potential method for safeguarding the citizen against arbitrary arrest since it involves a specific charge and acceptance by a neutral judge that there are grounds for suspecting the accused.
This is the rhetoric of those who idealize the legal system. The reality is otherwise. In the first place, many do not use their so-called legal right to not be arrested without a warrant:
Of course, not everyone demands to see a warrant when he is arrested or even knows he may-the lower his status, indeed, the less likely he is to demand evidence of authority. And this fits with the familiar theory that rights available in law, be they on civil liberties or welfare entitlements, fail in practice because citizens do not take them up. The law itself is thus exonerated.
This is not supposed to be the law’s fault. However, given the often intimidating nature of the police, the lack of use of such a right becomes more understandable–a fact ignored by the courts.
In the second place, the reality is that as citizens, immigrants, and migrant workers take up their rights, the law itself often changes to negate such rights (pages 38-39):
But that may be a little misleading. Indeed there is some evidence that the very fact of rights being taken up can itself become a reason for removing them. The Thompson Committee (1975), for example, notes:
… the police at present are able to carry out their functions only because some persons whom they detain without warrant fail, through ignorance, or fear of authority, to exercise their rights. (p. I I)
However they also note that:
As people become increasingly aware of their rights the present tacit co-operation which makes it possible for the police to function may not continue, and the police may find themselves in a position to do only what they are specifically authorised to do by law. (p. 12)
-which of course is exactly what legality means! But legality is presented here less as an ideal than a problem: the solution is not to support this claiming of rights or take further measures to ensure all suspects do know their rights but to remove the rights by introducing ‘a form ofl imited, or temporary arrest, arrest on suspicion’ (Thomson Committee, 1975, p. 12), with a different name-detention-and more relaxed rules. In short they recommend police powers be widened so that they do not need a warrant, not only in practice, but in law.
In the third place, even without such changes in the law, the law often permits arrest and other police actions without a warrant. Page 39:
In any case police powers are already wider than the warrant system might suggest. In R. v. Kulynycz (1971) it was agreed that arresting without a warrant while pretending to have one was not fatal to the case; the Criminal Law Act 1967 allows a member of the public or a policeman to arrest without warrant ‘anyone who is, or whom he reasonably suspects to be in the act of committing an arrestable offence’; while a policeman may also arrest someone whom he reasonably suspects is about to commit an arrestable offence. So in most serious cases a suspect can be arrested without warrant. Specific Acts often have specific powers of arrest without warrant attached, e.g. in drug offences, immigration offences, and motoring offences.
Warrant for Search of the Person
Judges generally interpet the right of police to search a person in very wide terms in a rather twisted logic characteristic of the legal system–typical of the reality of law rather than in terms of its rhetoric of protecting citizens, immigrants and migrant workers. Pages 39-40:
Warrants of course affect not just arrest but search. However, searching a suspect for evidence without a warrant is generally excused if the police plead ‘urgency’, ‘urgency being widely interpreted in favour of the police’ (Rentlln and Brown, 1972, p. 36; Bellv. Hogg, 1967; Hayv. H.M.Adv., 1968). Indeed even the seizure without warrant of perfectly legitimate goods has been deemed acceptable in English law. In Chic Fashions v. Jones, 1968 Lord Justice Salmon pointed out that the police had reasonable grounds to suspect that the goods seized might be stolen, and since in the law of arrest ‘reasonable grounds to suspect’ legitimises seizure of the person, he could scarcely hold that the same did not apply to mere property:
If a man’s person is not so sacrosanct in the eyes of the law, how can the goods which he is reasonably suspected ofhaving stolen or received be sacrosanct? Only if the law regards property as more important than liberty and I do not accept that it does so.
Common law thus managed to justify invading personal liberty to recover property by the principle that personal liberty is more significant in law than property. In doing so of course it set up a new precedent that reversed its own justification, making the right to recover possibly stolen property outweigh the right to individual freedom from interference from the police.
Indeed, judges often rubber stamp requests for warrants made by the police–contrary to the rhetoric of law. Page 40:
In any case, the control function of the warrant seems rendered redundant by the view expressed in the authoritative Scots manual on procedure that ‘such petitions, being presented by responsible officials, are assumed to be well-founded’ (Renton and Brown, 1972, p. 28). This is rather at odds with Lord Hewart’s rhetoric on the rule of law over officials too:
One of our most priceless possessions is the liberty of the subject. If once we show any signs of giving way to the abominable doctrine that because things are done by officials, some immunity must be extended to them, what is to become of our country? (Ludlow v. Shelton 1938)
However, the view that officials can be trusted was upheld by the Thomson Committee (I975) in the face of requests for change and it was on this basis that they found it ‘satisfactory’ for judges to ‘rubber stamp’ rather than investigate requests for warrants (p. 20). Lafave and Remington’s American study of the warrant system (I975) points to informal judicial laxness as the source of its ineffectiveness, but from these views expounded by a legal authority and a committee set up by the government and Crown Office and chaired by a High Court Judge, it would seem in the Scottish case to be
formally endorsed common law and policy.Detaining someone is not then in general quite so hampered by controls as one might imagine from the rhetoric.
Conclusion
The rhetoric of law–that the warrant system, whether for arrest of the person or for search of the person–provides protection against arbitrary arrest and search–contradicts the reality of law. Furthermore, when citizens, immigrants and migrant workers begin to exercise what actual legals rights they have, then the legal system tends to create mechanisms to widen police powers so that citizens, immigrants and migrant workers are stripped of such rights.
Such is the nature of the legal system in a society dominated by a class of employers.
But you would not know it from the rhetoric of the social-democratic left. We are still waiting for such social democrats here in Toronto to explain to us what he means by the following. As I wrote in my previous post in this series (I quote Rosenfeld before expressing my own view):
Shouldn’t that institution [the police] be thoroughly transformed, by political struggle, into a more humane, limited and less autonomous one?
Okay. How does Mr. Rosenfeld or other social democrats propose to do that? Frankly, I think that you should not hold your breath while waiting for a response. The article written by Mr. Rosenfeld from which this quote is drawn is dated May 4, 2020. I have searched on the Net to see if Mr. Rosenfeld has elaborated on this assertion since then; I have not been able to find anything at all written by him on the topic since his May 4 article.
This is just social-democratic rhetoric passing it off for something real; it is pretending to be something that it is not. It is fake social reform. Workers, citizen, immigrants and migrant workers hardly need such pretentious rhetoric. Mr. Rosenfeld has no real intention to lift a finger to formulate let alone implement a policy for police “reform.” I suspect that this applies to many other social-democratic or reformist arguments.
Do not workers, citizens, immigrants and migrant workers deserve more than such rhetoric? What do you think?
The Abolitionary 