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Putting Youth Rehabilitation at the Heart of our Attention

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5 March, 2014
Ashleigh Hamidzadeh, Criminal Law, Human Rights Law, Law & Practice, North East Law Review Blog Competition
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-Ashleigh Hamidzadeh (LLB Law, Newcastle University) a.t.hamidzadeh@newcastle.ac.uk

Prison – population in the UK is around 83,151 (Ministry of Justice 2013) – has evolved since the 19th century into the most arduous form of punishment in the United Kingdom. The number of detained young offenders is 1,350 (Transforming Youth Custody – government response to the consultation, transforming-youth-custody-consultation-response 2014). What is the role of punishment? Deterrence? Incapacitation? Or rehabilitation? The Coalition Government is “Putting Education at the Heart of Detention.” So, this blog is putting youth rehabilitation at the heart of our attention.

Punishment today is a strategy of crime: Durkheim believed the role of punishment was to enforce the collective conscience as well as instil the importance of social solidarity. The method of doing so is, punishment as a deterrence. The punishment faced by an offender for committing a wrong doing discourages future offending. Deterrence in action: The Conservative Party Manifesto 1979 promised a “Short, Sharp, Shock” programme to youth offenders. Another approach is incapacitation, the policy of punishment to remove the offender from the capacity to offend once more.

How to control in a detention centre: Foucault, would argue that disciplinary power is the most dominant, this is when power can be held over both the body, and increasing the mind, predominantly through the use of surveillance. Foucault describes this, by using concept of the “Panopticon” (Foucault, 1995). The Panopticon was a style of watchtower in prisons, in which prison guards were able to view all prison cells, however, the prisoners were not aware of when this would occur. Resulting in the conformity of prisoner’s behaviour. Foucault describes this as “Self Surveillance”, which subsequently results in “Self Discipline”.

Punishment as an opportunity for rehabilitation? The enactment of the Crime and Disorder Act 1998, under section 41, established the Youth Justice Board (YJB). This body operates to reduce reoffending and provide support of the victims of crime, as well as assisting the Youth Justice System. Section 41 (5) (b) (iv) provides that the Youth Justice Board must take “the steps that might be taken to prevent offending by children and young persons” (Crime and Disorder Act 1998, s.41 (5) (b) (iv)). The then Home Secretary, Jack Straw MP, described the department as necessary in the operation of the “fractured and immature youth justice system” (Travis 2011).  The Youth Justice Board is still in operation today, with between “10 to 12 members, which are appointed by the Secretary of State.” (Crime and Disorder Act 1998, s.41 (3)). As of 2012 and 2013 the net expenditure of the Youth Justice Board was £336.9 million (Grimwood, Strickland, 2013).

In the United Kingdom today we have seven Young Offender Institutions, aimed at rehabilitating young offenders, aged between 18 – 21. However, with currently, 71% young offenders reoffending within 12 months of being released, there is substantial need for reform. ‘Her Majesty’s Inspectorate of Prisons’ (HMIP) in an annual report in 2011, stressed the need for all youth offenders to “be involved in activities that give them the habits, experience and training they need to get and hold down a job when they leave custody” (Allen 2014).

What are “Secure Colleges”?

The Legislation: Under the proposed Criminal Justice and Courts Bill, clause 17 grants the Secretary of State the competence to “the power to provide secure colleges in

England.” (Criminal Justice and Courts Bill Fact sheet) Neighbouring ‘Glen Parva Young Offenders Institution’, the first “Secure College” has been planned to be constructed by 2017, holding over 320 young offenders (Casciani 2014), aged between 12 to 17 years old. The primary attention of these detention units will be on the need for education. The need for educational assistance can be demonstrated when considering that 86% of young offenders, who are currently in Young Offender Institutions have, at one point, been excluded from their school. “Transforming Youth Custody – government response to the consultation”, illustrates the urgent need of education for young offenders, with “over half of 15–17 year olds in YOIs have the literacy and numeracy level expected of a 7–11 year old.”

“We need to make sure that time spent in custody is time well spent. We need to turn these young people into better citizens not better criminals…” (Travis 2011) Nick Clegg has described these “Secure Colleges” as necessary to teach discipline and future life skills.

A previous example of education being used as a catalyst deterring young people from crime can be shown in the American study of the ‘High Scope’. “The Perry Pre School” (Highscope) was a community programme aimed at crime reduction. The experiment took a group of economically disadvantaged African American children in Michigan, and taught an intellectual experimental programme, as well as visiting the families of the children. The experiment continued into adulthood, discovering that those children involved in the project had fewer lifetime arrests, as well as being in education and employment (Schweinhart L. J. 2003. “Benefits, Costs, and Explanation of the HighScope Perry Preschool Program” 2003).

However, the Standing Committee for Youth Justice, have been in much disagreement with the proposed reforms. Penelope Gibbs, the Chair of the Committee, argues that the principle target for change is not the education of youth offenders, but further social causes, and has been quoted as stating: “A more holistic therapeutic model is needed rather than a gimmicky repackaging of our current costly and broken approach to child custody”.

Similarly, The Labour Party’s Sadiq Khan (Shadow Justice Secretary), commented on the need for education, but added that this proposal was insufficient in itself: “Education is crucial in reforming criminals but building one new establishment in the future will do little to reduce the reoffending rate across the rest of the country.”

The aim of “Secure Colleges” is to strive towards greater educational attainment within detention facilities for young offenders, the Secretary of State for Justice, Chris Grayling has stated that “We want education with detention rather than detention with some education.”  (Sellgren 2014).

On the 24th of February, the House Commons passed the Second Reading of the Criminal Justice and Courts Bill. The implementation of “Secure Colleges” proposes a need for better education in the provisions of youth offender’s facilities. However, the budget for the reform has been set at less than £100,000. This is considerably lower than the current yearly spending on Youth Offender Institutions, which is approximately £178,000 (Casciani 2014). The future of the “Secure Colleges” will, for now, depend upon the Criminal Justice and Courts Bill Committee Stage reading.

 

Human Trafficking – The Darker Side of the Olympic Gold

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3 March, 2014
Human Rights Law, Keira Constable, Law & Equality, North East Law Review Blog Competition, Sport Law
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(Image Attribution: By adrian8_8 [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons)

– Keira Constable (LLB Law, Newcastle University) k.a.t.constable@newcastle.ac.uk

With the 2014 Winter Olympics having just finished, I still wonder why the International Olympic Committee (IOC) chose to have these high-profile games in Sochi, Russia. Aside from the outrageous laws that were passed concerning gay propaganda, and the dangerously uncompleted accommodations for the press and tourists, Russia is still one of the largest source countries for trafficking in persons (TIP); specifically the trafficking of young women and girls. And while TIP occurs in every country around the world, Russia has been particularly lax in enforcing it’s laws on human trafficking, to the point where the U.S. Department of State’s Trafficking in Person’s Report 2012 labeled it as Tier 2 on the watch list, which basically means the country has legislation in place, but the current laws aren’t doing much to suppress TIP. I’m sure a country’s track record in combatting human trafficking doesn’t even appear on the radar when the IOC chooses where it will host the upcoming Olympic Games, perhaps it should be a factor for upcoming games.

Large international sporting events draw in massive amounts of people – athletes, media, and tourists alike. While tourist money does affect the local economy in many positive ways, it is also proven that tourist dollars can be used for evil, for instance, buying a pre-teen girl for a couple of hours; something that if one were to get caught doing in one’s home country, they would be criminally charged and thrown in jail. The sad fact of the matter is, sporting events such as the Olympics drive up the demand, and supply, of trafficked victims and if the host country’s TIP laws are already not up to international standards, how can we (the international community) help the victims of such a terrible crime, if we are the ones perpetuating the demand?

In 2000, the United Nations Office on Drugs and Crime (UNODC) created the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children which defined what TIP as the “recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” (United Nations Office on Drugs and Crime, 2000) Russia signed the protocol in 2000 and ratified it into domestic law in 2004. This (relatively) quick ratification was probably due to the government knowledge of the widespread abject poverty after the collapse of the Soviet Union in the early 1990s, which would lead people to try to make money by any means. Also, the lifting of the Iron Curtain freed the movement of peoples across former Soviet countries’ borders, either through legal or illegal means.

The Winter Olympic Games may not bring as many spectators as the Summer games, but they still bring a surge in tourism to the host city. In 2010, the Winter Olympic Games were hosted in the Canadian city of Vancouver, British Columbia where, according to the CBC (Canadian Broadcasting Corporation), “The [Canadian Tourism Commission] said the value of Canada’s tourism brand in 2010 was $132 billion, which it said was a 7.2 per cent increase compared with the pre-Olympics valuation.” (CBC, 2011) In countries with strict immigration laws, traffickers use these events as an easy way to obtain visas and masquerade their victims as spectators. (Hayes: Human Trafficking for Sexual Exploitation at World Sporting Event, 1106). But what about places like China, or Russia – two very significant source countries for human trafficking victims?

According to the Consortium for Applied Research on International Migration for the Eastern Neighbourhood of the European Union (CARIM-East) report on Russia, an estimated 30,000 to 60,000 women are trafficked out of Russia each year. This makes it one of the largest source countries on the planet. These women, for the most part, are trafficked into sexual slavery. While there is obviously no data to reflect the impact on sex trafficking in Russia in relation to the Winter Olympics as it is too early to tell, one can easily assume that traffickers would keep their girls local for the games. Not only is it less expensive for traffickers, since they don’t need to pay for plane tickets to send these women to another country, but they have thousands of people flocking to a country where sex laws are less strict than their own (for the most part) which drives the local demand way, way up, which, in turn, enables the traffickers to jack up the prices for pimping out these women – money that these women will never see themselves.

Taking all this into consideration, perhaps the IOC should start taking into account the impact that sex trafficking has on a country before that it is chosen to host one of the world’s biggest sporting events. While no country is immune to TIP, there could be bigger sanctions in place for those countries that fail to have proper legislation, or enforcement of existing legislation, concerning human trafficking, and are being considered to host an international sporting event. Despite the Olympics only just ending in Russia, from the notoriety of it being a source country, we can easily assume that the exploitation of women and children for sexual purposes in that country has  drastically increased this year due to the Olympics and its poor reputation in regards to TIP. From this, the IOC needs to look beyond the gold medals and the bright lights of the pistes and racetracks, to the broader impact the Olympics has on a host country and its people – namely, the women and children that fall prey to human traffickers and are sold to rich tourists to be used as sex slaves.

 

Constitutional Reform – A Labour of love?

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2 March, 2014
Constitutional Law, Harry Dyson, Human Rights Law, North East Law Review Blog Competition
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 (Image source: http://www.dailymail.co.uk/news/article-2138668/Im-ready-comeback-Blairs-millions-quitting–wants-engage-UK-politics.html)

 – Harry Dyson (LLB Law, Newcastle University) h.dyson@newcastle.ac.uk

Constituents being able to sack their own MP, televised trials, Scottish independence, and prisoner’s rights to vote; these are all constitutionally significant changes that have been proposed.  The Government have shown little in the way of support for any of these, and in the case of Scotland outright opposition. The Government should exercise caution in passing any constitutionally significant legislation and take a hard look at constitutional reform implemented by New Labour.

With our Constitution being more complex and ambiguous than Starbucks’s tax return, how did New Labour fare in their plight to modernise it? An un-written constitution is a wonderful thing, it facilitates modernisation and social change. However the reforms since 1997 have shown both the positives and negatives of an un-written constitution. New Labour’s reforms principally advocate one message to any government aiming to reform; partisan politics have no place in such a process.

The House of Lords have been a thorn in the side of the Labour Party since the days of Ramsay Macdonald, and in 1999 New Labour fought back. The main weapon in Blair’s arsenal being the House of Lords Act 1999. The casualty of this fight against the Lords was unfortunately the relationship between the two houses, which was unwittingly reshaped. The creation of life peerages and the reduction of hereditary peerages to just 92, as pledged in their manifesto, aimed to be more proportionate of Parliament therefore Labour wielding more power. However this unwittingly granted the Lord’s a slither of the one thing that could make them more powerful; legitimacy. Thus the Lords started to challenge their constitutional role, starting with constitutional conventions. That very same year Lord Strathclyde boasted that the convention that the Lords would not veto secondary legislation was ‘dead’. Lib-Dem Lords went as far as to openly oppose the Salisbury convention! Labour’s partisan legislation thus unwittingly inspired a train of thought advocating the Lords vetoing manifesto pledges – counter-productive for both our democracy as a whole and for the Labour Party.  The 1999 Act was short sighted and failed to protect conventions which are key to our democracy. Lesson one; stay well clear of partisan party politics.

A question that will haunt Tony Blair forever; did New Labour get anything right? The Human Rights Act 1998. This radical constitutional change was carried out very well. The 1998 Act incorporated most of the Human Rights Act into our law. However it did so while protecting the holy grail of constitutional theory; Parliamentary sovereignty. Dicey advocates Parliament is not ‘politically sovereign’ – It would be almost impossible, politically, to repeal the HRA without a suitable replacement. However legally Parliament could repeal it whenever they pleased. The Act allows the court simply to file a declaration of incompatibility if new legislation breaches the convention. So Parliament could in theory legislate contrary to every article in the ECHR. Despite this the ECHR is seemingly obeyed, for example the Belmarsh case. Here it was held the Anti-Terrorism Crime and Security Act 2001 incompatible and Parliament swiftly amended it as appropriate. The Act may have appeared moderate by having such limited court power, however understanding of Diceyan theory explains why this approach works well. New Labour exercised the caution and restraint here that was missing in their Lords reform. Lesson two; respect Dicey.

Maintaining the separation of powers is an underlying theme throughout Labour’s reform. The Constitutional Reform Act 2005 removed the Law Lords from the Upper Chamber and removed the Lord Chancellor’s judicial functions. This stripped Blair’s old friend and mentor Lord Irvine of the role of speaker of the Lords – a welcome modernisation. This constitutional reform, in contrast to Lords reform, although not escaping criticism, showed almost apolitical legislation. Any future constitutionally significant legislation will have to, in order to benefit the country, be somewhat apolitical in nature. Lesson Three; to coin a phrase used by Ramsay Macdonald in 1929 – reform should ‘put country before party’.

Allowing prisoners to vote may seem a fresh liberal approach, and yet another chance to throw around the term ‘human rights’, however it should be looked at with both foresight and caution. Lords reform is a prime example. I wouldn’t go as far to suggest that the ‘criminal vote’ would have a significant impact on British politics – however how would the political parties win this vote? If this would cause a lean in policies ever so slightly towards prisoner friendly policy, is this something we can allow? Despite the fact Labour may benefit from a prisoner vote, perhaps it should follow Blair’s stead in the case of the Lord Chancellor and put country before party.

Televising trials is also a risky proposal. The media already have an unwelcome influence on trials, especially given the lack of anonymity for defendants (Operation Yewtree being a prominent example), should we really be welcoming more? The possible political influence also shouldn’t be underestimated, as we have seen before in the Venables case. Labour’s reforms were successful because of their maintaining of the separation of powers – keeping politics out of the courtroom. Once again caution has to be exercised. In the meantime Mr Pistorius will be making for interesting viewing.

Scottish independence would easily dwarf Labour’s efforts in terms of constitutional reform. The unintended results of relatively minor Lords reform should be a huge warning shot to politicians on both side of the debate. Should Scotland vote for their independence it will prove to be the biggest ever test of a Government’s ability to implement constitutional reform.

Whatever your political persuasion one thing is clear; the Government of the day need to take extreme care in even the most moderate of reforms. New Labour’s efforts were on the whole beneficial for our country, however they highlight the need for foresight and caution. Scotland’s bid for independence is currently the biggest threat to our constitution, the changes it would force could have very unpleasant results in the long term for our constitution. However what is for certain is that a yes vote on the 18th of September would make for a very interesting couple of years for Public Law students and commentators.

 

Pushing Their Luck? UK Counter-Terrorism Powers and David Miranda

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26 February, 2014
Civil Liberties, Colin Murray, Human Rights Law
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David Miranda

– Colin Murray (Senior Lecturer, Newcastle Law School) colin.murray@newcastle.ac.uk

This post was first published on Human Rights in Ireland

Stop and Search certainly was the hot human rights news story of last summer within the UK. Schedule 7 powers under the Terrorism Act 2000 allow for extended powers to stop and search, and even detain for up to nine hours individuals in the context of ports and airports, for the purpose of assessing whether they are linked to terrorism. That police powers should be extensive in this context might be thought relatively uncontroversial. After all, the potential to trap hostages in such a confined space was attractive to terrorist groups long before the 9/11 attacks displayed the potential of using civilian airliners as weapons.

The problem, as so often is when counter-terrorism is at issue, is that when such exorbitant powers are assumed, legal systems can find it very difficult to constrain their abuse. The problem really comes to the fore when, as David Anderson QC, the UK’s independent reviewer of counter-terrorism powers, told Parliament on 12 November, criticism of the security services within the UK is often muted, partly because of national pride in their activities (dating from the work of the code breakers at Bletchley Park during the Second World War) and partly as a result of the 007 brand’s ongoing appeal.

This situation produces one key question. In rather feverish context of the security debate, and with a seemingly in-built national deference to the activities of the security services, what is to stop police and security officials from abusing extended stop and search powers? For over a decade the airport powers attracted little attention. This is especially the case when their operation is compared to the furore which surrounded the day-to-day use of extended counter-terrorism stop-and-search powers on the UK’s streets, which ultimately led to the European Court of Human Rights finding a breach of Article 8 ECHR. The police seem to have appreciated, as Joshua Rosenberg picked up from Anderson’s reports on the use of Schedule 7, that the power was not simply valuable, but that “like all valuable things, it needs careful handling”.

The powers suddenly became an issue of national importance with the detention for nine hours at Heathrow of David Miranda (pictured above), partner of US journalist Glenn Greenwald. The police were investigating whether Miranda had in his possession US national security documents received from the NSA whistleblower Edward Snowden. Embarrassing for a key ally perhaps, but where is the basis for using counter-terrorism powers, Greenwald and his supporters asserted? Miranda was not a member of any banned terrorist group. For the police, however, the link between these security-related documents and counter-terrorism powers was indirect, based upon the damage that the release of these documents could do to counter-terrorism operations. This attempt to link his case to terrorism has been likened to a “conjuror’s trick” by barrister and blogger Adam Wagner.

Yesterday the High Court ruled that a challenge to the legitimacy of this exercise of the power and to the compatibility of the power generally with the freedom of expression under Article 10 ECHR could not succeed. First off, Lord Justice Laws (giving the lead judgment) quickly dismissed the contention that the power had been used for an improper purpose, ie, that the examining police officers’ purpose in stopping Miranda was out with the scope of a counter-terrorism power. Laws LJ summed up the purpose of the Detective Superintendent involved stopping Miranda (at [24]): “given the connection with Mr Snowden and the latter’s movements, that the claimant might have been concerned in acts falling within the definition of terrorism in s.1 of the 2000 Act which might be carried out by Russia and designed to influence the British government”.

The key factor is that the court accepted that the definition of terrorism under section 1 of the Terrorism Act 2000 was broad enough to provide a basis for this arrest, notwithstanding that Miranda himself could not be described as a “suspected terrorist” (at [29]):

[T]he bare proposition that the definition of terrorism in s.1 is very wide or far reaching does not of itself instruct us very deeply in the proper use of Schedule 7. … S.1(2) is concerned only to define the categories of “action” whose use or threat may constitute terrorism: not to impose any accompanying mental element. Similarly, the expression “concerned in” in s.40(1)(b) is not to be taken to import the criteria for guilt as a secondary party which the criminal law requires in a case of joint enterprise.

As long as Miranda was linked to Snowden, who was intent on publishing materials which would influence government policy and could endanger the lives of UK agents, this was sufficient for the court to find that the purpose was proper (at [32]):

Putting all these features together, it appears to me that the Schedule 7 power is given in order to provide a reasonable but limited opportunity for the ascertainment of a possibility: the possibility that a traveller at a port may be involved (“concerned” – s.40(1)(b)), directly or indirectly, in any of a range of activities enumerated in s.1(2). If the possibility is established, the statute prescribes no particular consequence. What happens will depend, plainly, on the outcome of the Schedule 7 examination including any searches where those have been carried out. There may be a prosecution for an offence under the Act, or indeed some other offence; materials in the subject’s possession may be retained if the general law allows it; the subject may be released with no further action.

In terms of whether the stop was proportionate, in light of Miranda’s involvement in journalistic endeavour, drew Laws LJ into a detailed consideration of the freedom of the press in general. Whilst he appreciated that importance of the public interest in a free press, the proportionality of any interference had to be judged in light of other public interests, such as national security (at [46]):

[There is] an important difference between the general justification of free expression and the particular justification of its sub-class, journalistic expression. The former is a right which belongs to every individual for his own sake. But the latter is given to serve the public at large; … It follows that so far as Mr Ryder claims a heightened protection for his client (or the material his client was carrying) on account of his association with the journalist Mr Greenwald … [t]he contrast is not between private right and public interest. The journalist enjoys no heightened protection for his own sake, but only for the sake of his readers or his audience. If there is a balance to be struck, it is between two aspects of the public interest.

Whilst he was not willing to give carte blanche to a public official’s assertions of security concerns (see [57]), Laws LJ was clear that valid security concerns had been made out in this case, and that he would not substitute a journalists view of these questions for those of government (at [71]):

Journalists have no … constitutional responsibility. They have, of course, a professional responsibility to take care so far as they are able to see that the public interest, including the security of the State and the lives of other people, is not endangered by what they publish. But that is not an adequate safeguard for lives and security, because of the “jigsaw” quality of intelligence information, and because the journalist will have his own take or focus on what serves the public interest, for which he is not answerable to the public through Parliament. The constitutional responsibility for the protection of national security lies with elected government …

Wrapping up, Laws LJ concludes that the powers (limited to a ports and airports context) are hedged by adequate safeguards. For all that complaints have already begun regarding the level of respect accorded to elected decision makers in the security context, it seems that the strongest ground for appeal is this briefly addressed issue of safeguards. After all, it was the basis on which the general no-suspicion stop-and-search power was subject to major reform in the Protection of Freedoms Act 2012, and is already under fresh review by David Anderson QC. This legal battle may be lost, the war over counter-terrorism powers looks set to rage on.

Lessons from the Lex Gabinia

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20 February, 2014
Administrative Law, Civil Liberties, Constitutional Law, Harry Perrin, Human Rights Law
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‘Gnaeus Pompeius Magnus’ (‘Pompey’ or ‘Pompey the Great’)

– Harry Perrin (Independent Scholar and Trainee Solicitor)

It wasn’t all yo-ho-ho and a bottle of rum for the Ancient Romans when it came to pirates. By the fourth decade of the first century BC, Plutarch tells us, the pirates were so prevalent in the Mediterranean that ‘all navigation and all commerce were at a standstill’ causing resource shortages and volatile food prices. ‘Roman supremacy’, Plutarch continues, was ‘brought into contempt’ not only by the pirates’ ‘seizures of high ranking officials, and the ransoms which they demanded for captured cities’, but by ‘their flute-playing, their stringed instruments, their drunken revels along every coast.’ Evil crimes indeed.

The way in which the Romans dealt with the problem tends to spring to my mind whenever our country today is faced with situations billed as ‘emergencies’ or ‘extraordinary’.

The constitution of the Roman Republic in the first century BC was designed so that no one person could amass too much power over too prolonged a period: ‘an elaborate set of precautions against the accumulation of executive power in a single person’, notes Eric Posner, ‘to prevent the recurrence of monarchy’. There were two heads of state, the consuls, who held office for one year. The post which a consul would typically hold afterwards, the proconsulship – governing a foreign province in the Roman territories – was also limited in term to one year to prevent an already powerful individual accruing too much military might away from the watchful eyes of Rome.

If you are a fan of irony, you may already have spotted that from this Republic’s careful constitution sprang one of the most powerful empires we have known. Note also that Sulla, a constitutional reformer who tightened many checks and balances in 81BC (including limiting the proconsulship to one year), did so when he himself was holding dictatorial power on the basis of an emergency; and note the lex Gabinia.

One hundred and twenty thousand infantrymen, five thousand cavalrymen, five hundred ships, and the right to appoint twenty four powerful lieutenants, were among the resources allotted to Pompey by Gabinius’ law, passed in 67 BC, to combat piracy in the Med. In terms of territorial command, Plutarch notes that Pompey’s power over the sea and mainland areas up to fifty miles inland meant that ‘there were not many places in the Roman world which were not included.’ He had not only ‘the supreme naval command but what amounted in fact to an absolute authority and uncontrolled power over everyone.’ So much for the elaborate system of checks and balances.

Unsurprisingly with these resources Pompey dealt with the problem with incredible speed. Food prices dropped as soon as the lex Gabinia was passed and piracy was quashed within three months.

But Pompey did not surrender his power. Another ‘extraordinary situation’ justified Pompey not only keeping his naval command and resources, but being allotted further power over the Roman territory in the East, including the military forces already stationed there, then under the command of his colleagues Lucullus and Glabrio. The lex Manilia was passed to this effect in 66BC. The justification: war in the East, against Mithridates and Tigranes.

It is easy to turn history into linear narratives and morality tales with the benefit of hindsight, and history’s headlines should be questioned and re-questioned for accuracy and fairness. The headline point here is that the excessive accrual of power by Pompey clashed with the excessive accrual of power by Julius Caesar. Caesar crossed the Rubicon, said ‘the die is cast’; civil war, birth of the empire and the rest, as they say, is ancient history.

Headlines are memorable though, and I do remember the lex Gabinia whenever ‘emergency measures’ are proposed today. Take the detention of terror suspects. Until January 2011, the state could detain those suspected of terrorism-related offences, without charge, potentially without even telling them the reason for their detention, for up to 28 days. Unsuccessful proposals went before Parliament to raise this to ninety and then forty two days. The justification for prolonged detention without charge was that the country was in an extraordinary situation, and emergency measures were appropriate.

And were the laws put back to normal once the emergency had passed; once the pirates had been defeated, as it were? The detention-without-charge period was restored to fourteen days, but, as human rights group Liberty points out, this is still high compared with the USA (two days), Italy (four days), Canada (one day) and Ireland (seven days). Many would argue that the danger still exists here, that the pirates have not been conquered. This may or may not be so, but when a so-called extraordinary situation prevails for so long, it becomes the norm – it becomes ordinary – and we should discount any arguments based on the need to deal with an emergency in our assessment of whether laws in question are proportionate.

And take the trials following the summer 2011 riots, where courts sat throughout the night. Keir Starmer, Director of Public Prosecutions at the time, has praised the role of this swift administration of justice in curbing the disorder. Sentences for crimes committed during the riots were on average 4.5 times longer than those for similar offences in the previous year. This is not problematic per se, provided that due process was followed: judges can take account of the context of crimes when sentencing.

More of a concern is that due process was not followed. Solicitors who acted for defendants in the riot trials have voiced concerns, noting knee jerk reactions from judges, ‘conveyor-belt justice’, and a failure to distinguish between ringleaders and followers. A magistrate stated that the usual sentencing rulebook for children with no previous convictions had been ‘torn up and thrown away’.

The justification for the all-night courts was that the emergency in which the country found itself in August 2011 required an extraordinary response. This may well hold water. My concern though, and that of the defence lawyers cited above, is that these measures may have been disproportionate to the extent that they unjustifiably interfered with the defendants’ right to a fair trial.

I acknowledge that had the judiciary and the government failed to deal adequately with the riots, the consequences would have been dire – even more so than they were, and that all-night courts may well have been the best option. And the lex Gabinia may have been the right way of dealing with the pirates. Pompey succeeded where no other commander did. It is easy to point at it now as the beginning of the end of the Roman Republic, but if the pirates had prevailed, we might all be playing flutes and speaking pirate now. Aargh!

I have never been suspected of terrorism or rioting, or even piracy (though I have once exhibited drunken behaviour in a Mediterranean coastal-town). I do however urge the conscientious citizen to assess any proposals which have the potential to infringe on our rights or constitution and to bear in mind the lex Gabinia. Ask the following, because these issues matter to all of us:

  1. Is the measure proposed proportionate to the issue it is proposed to deal with?
  2. Are the reasons for justifying the measure sufficiently closely related to the measure, and if any of these reasons fall away (‘emergency measures’ when the emergency has ceased) is the measure still justified?
  3. Has consideration of the proposed measure been properly weighed up against a consideration of its effects on the constitution and on our rights?

There we have it: the ‘caveat Gabinia’. I have just coined a phrase. Latin scholars correct my grammar before it catches on.