Human Rights

[leo9]

Sex Offenders Win Appeal Over Register
Thousands of criminals will be allowed to appeal for their names and addresses to be removed from the database after a controversial court decision.

As soon as I heard of this, I knew you would be on it like a cat on a loose shoelace. Let me try to convey to you the rich deep irony of a British BDSMer springing to the defence of the SOR.

For those not swayed by moral arguments, the best reason to support universal human rights is the Niemoller principle. If you connive at unjust laws and unfair practices, because you believe the Powers That Be (and their tame media) when they tell you that these will only be used against bad people, never against respectable citizens like you... then you have nobody else to blame when you discover that they lied, and you are next. Because governments always take more power than they admit, and never more so than with laws like the SOR rushed into effect on the heels of a moral panic.

Some of this is accidental. Rushed laws are always botched, but with a knee-jerk law the botching is worse because Parliament daren't do its job of scrutinising and criticising, for fear of being accused of protecting the bad people (perverts, terrorists, whoever is the bogeyman du jour.) So the temptation is overwhelming to rush it into law in beta, and leave the courts to sort out the mess. (And then blame the judges if people don't like the result.) And part of it is intentional: when consulted, the police will always want laws left as wide open and imprecise as possible, because if the law is so vague that anyone might be a criminal, the police can get anyone they want. And the media who campaigned for the law will not warn you, because they want to trumpet a victory, not admit that the result of their campaigning is going to hurt their own readers.

For an example you won't object to, consider ASBOs. When this law was going through Parliament, people who bothered to look at the wording complained that it was far too loosely framed and could be used against almost anyone that someone objected to. And the Government told them not to worry their little heads, because it was only for use against bad people, and who could object to that? A few years down the line, just as predicted, ASBOs were being used against people with barking dogs, people who put their rubbish in the wrong bins, people who played music too loud, peace campaigners... OK, you wouldn't object to that last, but the point is that everyone could see it was too wide-ranging. So the new Government is rebranding it as Criminal Behaviour Orders, to indicate that this time, it really will only affect bad people. We shall see.

Back to the SOR, where you have swallowed whole the tabloid line that this is all about “perverts escaping justice.” And yet, if the Spanner men hadn't pursued their case to the European Court of Human Rights that you so deeply despise, you and I, as practicing BDSMers in England, would live in danger of being arrested on a charge that could put us on the SOR.

If that sounds too vague and speculative, try a hard fact: I came within a judge's whim of being on the SOR. It's a long story, but bear with me, the details matter. Old-timers here will recall that some years back I had a run-in with the authorities; it ended as a fight with Social Services to get my son back, but it began with an Inspector who was clearly bitterly frustrated that, thanks to the Spanner case and its political aftermath, the DPP wouldn't let him bang me up just for being a pervert. So as cops do, he scratched around to find something to charge me with. In their search for proof that I was part of a Satanic ritual abuse ring they had looked at every piece of paper in my filing cabinet (it took them all day, I know, because I had to wait it out in a cell,) and in one of those files were my family photographs.

Now, when my son was a baby, his mother used to play a game where she would push his feet and say “Look, this baby folds up for transport!” Which he thought was so funny that he went on playing it. And one day when he was about four he was playing “this baby folds up,” and his mother thought it looked so cute that she took several photos of him with nothing on and his knees up to his chest.

The law on indecent pictures of children is another rushed law that ranges far wider than the Government or media will ever admit to you. The textbooks list as one of the features of paedophiles that they see sexual significance in a child's innocent behaviour: but the law now requires police and judges to do exactly that, to look at an innocent picture of a child and find it sexually significant. Furthermore, as my solicitor grimly explained, the law explicitly requires the judge to ignore motive: even if he completely accepts that the picture was taken in all innocence and with no notion that it might be considered indecent, if the law doesn't like the look of it, you are guilty. They wanted to charge me with the more serious offence of taking the pictures, but could only prove possession. The judge explained to me that he had no doubt that my wife took the pictures with innocent intent, but after she died, I should have gone through our album and destroyed them: by failing to do which, I was now guilty of a sex offence. He gave me a conditional discharge and prepared to make an order putting me on the SOR.

At which point my solicitor, bless his briefcase, bobbed up and drew the judge's attention to a newly issued guideline from the Attorney General. Presumably even the Government was becoming embarrassed at the number and variety of people being swept in by the SOR, so the AG had asked that no order should be made if the plaintiff was discharged. The judge evidently wasn't up to speed with this – I'm sure if he had been, he would have fined me tuppence or something such in order to get me over the threshold – but it was too late to change the sentence, and as he sourly said, he couldn't argue with the AG.

But for that hair's-breadth escape, I would have been barred from a wide range of jobs, required to check in at the police station like a terrorist suspect, and at risk of having my windows broken any time some cop decided to drop a friendly warning that one of those evil perverts was in the neighbourhood. Can you honestly sit there with your hands on the keyboard and tell me you think it would be a perversion of justice if I were to be allowed to appeal against that branding?

[js207]

As soon as I heard of this, I knew you would be on it like a cat on a loose shoelace. Let me try to convey to you the rich deep irony of a British BDSMer springing to the defence of the SOR.

For those not swayed by moral arguments, the best reason to support universal human rights is the Niemoller principle. If you connive at unjust laws and unfair practices, because you believe the Powers That Be (and their tame media) when they tell you that these will only be used against bad people, never against respectable citizens like you... then you have nobody else to blame when you discover that they lied, and you are next. Because governments always take more power than they admit, and never more so than with laws like the SOR rushed into effect on the heels of a moral panic.

There is another side to that Niemoller Principle though ... when you speak up to protect child molesters and axe murderers from the consequences of their crimes, it doesn't help. Really, the root failing of both police states like Hitler's or Hussein's and botched legal approaches like the ECHR is the failure to distinguish between guilt and innocence. In recent years, we have seen politicians releasing convicted mass-murderers for political and financial gain, foreign killers allowed to walk free because sending them back to their own home would "infringe their rights" - and yes, we see those same authorities persecuting over non-crimes which harm nobody. Our current system fails in both directions.

[leo9]

There is another side to that Niemoller Principle though ... when you speak up to protect child molesters and axe murderers from the consequences of their crimes, it doesn't help.

And this is how they get you every time: by telling you it's all about child molesters and axe murderers, and who cares if they get a fair trial or decent treatment, given that they're guilty anyhow and should be [insert whatever revolting punishment happens to appeal to your imagination.] So you don't notice, until it hits you personally, that the unjust laws you were happy to see used on the bad people are just as unjust when they are used against you and me.

People attack proper legal treatment for axe murderers or child rapists by asking "what if your child was the victim?" Which is a fair question, so long as you also ask the question, "what if your child were falsely accused of the crime?" And suddenly a system in which people go free if their guilt can't be proved doesn't look so bad.

By the way, when you hear a police spokesman say that because of some reform of the system "X number of murderers have gone free," what he actually means is "X number of people we arrested and were sure were guilty went free." Do you see the small but significant difference?

Really, the root failing of both police states like Hitler's or Hussein's and botched legal approaches like the ECHR is the failure to distinguish between guilt and innocence.

I really have trouble believing that you said that with a straight face, but let's look at it as if it were a serious proposition.

Police states such as you describe have a very clear idea of the difference between guilt and innocence. Guilt is being accused by the police or other authorities: innocence is not being accused by them. It couldn't be simpler, since they don't need to worry about technicalities like evidence, and if witnesses are considered useful they can always be told what to say, or shot if they refuse. Confessions are the tidiest proof of guilt, and those can usually be arranged, as the Bush administration discovered anew.

The ECHR also makes a clear distinction. Guilt is having been found guilty by a fair trial: innocence is not having been. And they frequently cause problems for governments, including our own, who would much rather use the other definition I mentiones, which saves so much time and expense and allows them to present the voters with a nice neat story - crime, criminal found, criminal punished. (Or, in the case of things like the imaginary ricin plot, crime prevented and criminal punished, which looks even better and saves the trouble of waiting for people to actually do something bad before punishing them.)

What you are complaining about is not actually guilt and innocence. What you are complaining about is that even after someone has been found guilty, people like the ECHR continue to treat him like a human being, who should be punished for his crime but not otherwise treated worse than any other human being. And I can quite see that for those for whom the world is divided into good people, who deserve rights and protection, and bad people, who deserve nothing except the shit of the world, this is intollerable. If I believed the world were so simple, I'd feel the same.

In recent years, we have seen politicians releasing convicted mass-murderers for political and financial gain,

A blatantly unjust abuse of power, I couldn't agree more, but you weaken your protests against such scandals when you lump them in with a great many more defensible decisions. And it's worth also noting that the strongest reason they forced that through was that the chap was probably, on the evidence available, innocent, and had an appeal coming up where it might very well have been proved. Rushing him to Libya as a favour for oil, and publicly blaming it on those bleeding-heart human rights people, saved the government and the courts a huge heap of embarrassment, not to mention the possibility of a humungous compensation payment which would have angered equally those who believed him innocent and those who believed that the security services are never wrong.

foreign killers allowed to walk free because sending them back to their own home would "infringe their rights"

Look at it this way. Pick a regime you know to be vile and murderous - Mugabe's, Gadafi's, Khomeni's, whatever makes your personal flesh creep. And a victim of their persecutions comes here for safety with the marks of torture on him and the rest of his family already killed by the secret police. And since being an enemy of an evil tyrant doesn't automatically make him an honest man, he does something wrong - say, drives away from a fatal accident. (All the more likely if he's not just in fear of the law, but in fear of being sent home.) Of course, he should be tried and sentenced just like anyone else, and he is. But if you then deport him as well, you are sentencing him to death, probably a very nasty death. If parliament wanted hit-and-run drivers to die by torture, they would have legislated accordingly: since they didn't, it is reasonable to question whether it is just to add that to his sentence.

But that's different from the cases you are angry about, right? The difference is, the ones you reckon should be deported are not clearly good people. And you know they are bad people because the media tell you so.

It can be an amazing sight how the press can show us an evil, despicable villain that clearly needs to be sent home, or just dropped out of a plane a mile out to sea: and then the regime in his home country falls out with ours, and suddenly he's a poor helpless victim who we have a duty to shelter and protect. Or vice versa. You can avoid all that confusion if you simply focus on the fact that this is a person, like you or me, regardless of whether the media like him or loathe him.

- and yes, we see those same authorities persecuting over non-crimes which harm nobody.

I'd agree with you, except that I'm sure we have very different lists of non-crimes, and other people would have others instead. It's a complicated world.