Introduction
As some of the left fall all over themseves referring to the genocide in Gaza and the West Bank as a breach of international law without gaining any criticial distancing from the limitations of “the law,” , the actual nature of law and its procedural acrobatics lies hidden. It is better to remind workers, citizens, immigrants and migrant workers of the real nature of law and not its rhetoric.
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.)
Rhetoric
You are either a citizen or an accused. Page 44:
One is either a citizen entitled to his freedom from arrest or the accused who, with a prima facie case against him, can be charged and if necessary taken into custody. The two-stage model reflects a once clearly defined structural distinction whereby the magistrates took over after arrest and any questioning was done in court under the supervision of the court, not the people reporting or investigating the offence. …
the two stages were being strictly adhered to by English judges at the end of the nineteenth century, so in R. v. Gavin (I88s) the judge stated categorically:
When a person is in custody the police have no right to ask him questions …. A prisoner’s mouth is closed after he is once given the charge, and he ought not to be asked anything. ( I88s: IS Cox C.C.)
Note the interchangeability of the points of ‘custody’ and ‘charge’ with the implication that custody could not take place without charge.
Reality
The two-stage model developed into a three-stage model as police developed its power. You are now either a citizen or a suspect or an accused. Page 44:
But in more recent cases the judges have operated in their decisions on the legitimacy of police control with a three-stage model of investigation which distinguishes the point of custody from the point of charge and in which the first category is governed by the
law of arrest, the third by the law of interrogation but the second avoids both. The three-stage model is implicit in the English] udges’ Rules, made particularly clear by the addition in the 1964 version of a second caution. Early in the inquiry the individual is classified as a
citizen helping police with their inquiries, next he becomes a (possibly) cautioned suspect, and finally when there is enough prima facie evidence, the cautioned and charged accused. Both English and Scots common law spell out the same model, exemplified in
England by R. v. Osbourne and Virtue (I 973), in Scotland by Bell v. H.M.Adv. (I 945). Only at the third stage does a prohibition on interrogation become applicable.
However, even this three-stage model becomes compromised in reality. Page 45:
… the judges, when faced with the question of narrowing down the accused’s rights, have managed to divide it into three definite logical stages. When it comes to defining the point at which those rights come into play, however, a new metaphor for characterising social reality is employed. The situation is suddenly revealed as not a three-stage structure but a fluid process, and the crucial point is left vague and almost mystically elusive:
Just when that point of time is reached is in any particular case extremely difficult to define—Qr even for an experienced police officer to realise its arrival. There does come a time, however, when a police officer carrying out his duty honestly and conscientiously, ought to be in a position to appreciate that the man whom he is in process of questioning is under serious consideration as the perpetrator of the crime. Once that stage of suspicion is reached, the suspect is in the position that thereafter
the only evidence admissible against him is his own voluntary statement. (Chalmers v. H.M.Adv., I954)The timing is thus left for definition to the police themselves, the people with the most obvious vested interest in postponing the point of inadmissibility as long as possible.
Conclusion
The rhetoric of law–that you are either a citizen who cannot be questioned or an accused who can be questioned–contradicts the reality of law. The reality of law is that there is now a third possibility–being a suspect–which enables the police wide powers to engage in questioning of workers, citizens, immigrants and migrant workers–and even then this three-stage categorization leads into the vague realm of giving the police even wider powers since it is often difficult to determine at which stage a person becomes a suspect.
But you would not know it from the rhetoric of the social-democratic left. We are still waiting for such social democrats as Herman Rosenfeld (a self-identified Marxist) here in Toronto to explain to us what he means by the following:
Shouldn’t that institution [the police] be thoroughly transformed, by political struggle, into a more humane, limited and less autonomous one?
My reply in an earlier post:
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?
In the context of appeals to international law and genocide in Palestine, should not the left be exposing the limitations of the law, both international and national in addressing the problems which we face as workers, citizens, immigrants and migrant workers?
The Abolitionary 