An Idiot’s Guide to Self-Defence

The law of self-defence is clear and based on common experience. In 1971 the Privy Council in the leading case of Palmer v R [1971] AC 814 held that

It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary.

Section 3 of the Criminal Law Act 1967 provides that

A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large

Section 76 of the Criminal Justice & Immigration Act 2008 adopted the common law principles from Palmer and other leading decisions, without changing the substance of the defence.  Section 148 of the Legal Aid Sentencing & Punishment of Offenders Act 2012  amended Section 76, to give further ‘clarification’.

The law permits the citizen to use reasonable force for the following purposes:

  • Self-defence
  • Defence of another person
  • Protection of property
  • Making a lawful arrest
  • Preventing crime

The citizen includes the police officer, to whom the law grants no additional licence to use violence.

What is reasonable is measured by the belief of the person using force. There may be no time for anything other than an instinctive reaction. The law does not require a fine calculation of just what amount of force is needed, but it does require that the use of force should be necessary in the circumstances, as the person concerned saw them. There is no duty to run away instead of using force.  “If … in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken” (Palmer).

There are limits. An obviously disproportionate response would not be reasonable – such a shooting an unarmed burglar in the back, and killing him, as he ran away. This is what occurred in the notorious case of Martin [2002] 1 Cr App R 27. The use of violence has to be controlled or else the law will yield to lawless vigilantism.

The Crown Prosecution Service has published Guidance on how to deal with cases of self-defence. Where a person has used force against some one committing a crime, the CPS advises

Common examples are burglary or theft from motor vehicles. In such cases, prosecutors should ensure that all the surrounding circumstances are taken into consideration in determining whether a prosecution is in the public interest.

  • Prosecutors should have particular regard to:nature of the offence being committed by the victim;
  • degree of excessiveness of the force used by the accused;
  • extent of the injuries, and the loss or damage, sustained by either or both parties to the incident;
  • whether the accused was making an honest albeit over zealous attempt to uphold the law rather than taking the law into his/her own hands for the purposes of revenge or retribution.

People who think that the law needs changing to free householders to take gross and disproportionately violent action against burglars should read the CPS Guidance. They should also apply some commonsense and ask whether it’s more likely that a burglar will take a weapon if he thinks he’s going to be attacked. Do we want more dead burglars and more dead householders?

New Immigration Laws: Miaow!

The Home Office’s Statement of Intent: Family Migration (June 2012) sets out the Government’s plans to reduce the number of immigrants coming to the UK from outside the European Economic Area (and those staying here, especially if they have committed crimes), to be enacted in a revision of the Immigration Rules in July. It makes no reference to domestic pets, but includes a major change in the approach to the right to family and private life in Article 8 of the European Convention of Human Rights. The new rules, it is said, will expressly incorporate the requirements of Article 8 into the Immigration Rules. But much is left unexplained, in particular the role of the Judges in determining Article 8 appeals. The intention appears to be to stop Judges using their own discretion when they think that an official has made the wrong decision in an Article 8 case.

Since the Human Rights Act 1998 came into force, something like a parallel jurisdiction has evolved in Article 8 cases in immigration law (with echoes of the availability of remedies in equity where none existed at common law). An applicant who fails to comply with the requirements of the Immigration Rule that applies to her case may still succeed if she can show that she has formed a family or private life, and the state cannot prove that removal or a refusal to allow entry is justified and proportionate on public policy grounds. A large body of case law has grown up around the way in which ‘decision makers’, including judges, should look at Article 8. It was originally thought that it could only apply to claimants themselves, and not family members who would be affected by adverse decisions. That changed when the House of Lords ruled in Beoku-Betts v SSHD [2008] UKHL 39 that decision makers should take account of the impact of a person’s removal upon those sharing family life with him as well as its impact upon him directly. In the leading case of Huang [2007] UKHL 11 they held that there is no requirement for an appellant to prove exceptionality, although they thought that cases in which removal was otherwise lawful, but are found not to comply with Article 8, would be rare:

“…the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality.” [20]

They held that the task of a Tribunal considering an Article 8 appeal was ‘to decide for itself’ whether the challenged decision is unlawful as incompatible with a Convention right, or compatible and lawful. They referred at para. 18 to the State’s ‘negative duty to refrain from unjustified interference with a person’s right to respect for his or her family’ and also its ‘positive duty to show respect for it’; they went on to describe the ‘core value’ which Article 8 exists to protect:

“…Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant’s dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant. The Strasbourg court has repeatedly recognised the general right of states to control the entry and residence of non-nationals, and repeatedly acknowledged that the Convention confers no right on individuals or families to choose where they prefer to live. In most cases where the applicants complain of a violation of their article 8 rights, in a case where the impugned decision is authorised by law for a legitimate object and the interference (or lack of respect) is of sufficient seriousness to engage the operation of article 8, the crucial question is likely to be whether the interference (or lack of respect) complained of is proportionate to the legitimate end sought to be achieved. Proportionality is a subject of such importance as to require separate treatment.” (emphasis added)

The trend has been for the UK Courts, taking the lead from not only from the European Court of Human Rights in Strasbourg but also from decisions by the European Court, applying EU law, to make it easier for Article 8 claims to succeed, by emphasising the state’s ‘positive duty to show respect’ for family life. The welfare of children is pre-eminent in cases where a parent faces removal, and if a child’s welfare is likely to suffer, removal of the parent may be impossible. This applies across the board, notoriously to cases in which ‘foreign criminals’ (doubly bad!) rely on their family rights to avoid deportation.

The Home Secretary’s infamous ‘cat’ speech merely gave infelicitous expression to a view that too many people were being let in (and too many criminals were being allowed to stay) through Article 8, and that it was somehow an abuse. The Home Office now intend that the new Immigration Rules will supersede the separate consideration of claims under Article 8 in all but the most exceptional cases:

The new rules will reflect fully the factors which can weigh for or against an Article 8 claim. They will set proportionate requirements that reflect, as a matter of public policy, the Government’s and Parliament’s view of how individual rights to respect for private or family life should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis. [7]

What happens at present is that the Home Office (or Visa Officer or Entry Clearance Officer in an embassy abroad) will assess an application with family/private life elements under the relevant Immigration Rule, and then again under Article 8. The ‘refusal letter’ will typically set out both assessments. A failure to consider Article 8 at all will almost certainly cause a Tribunal to find that the decision was ‘not in accordance with the law’ for the purposes of Section 84(i)(f) of the Nationality Immigration & Asylum Act 2002, and new a decision will have to be taken – usually by the Tribunal itself.

So in a sense, the government is merely doing a tidying-up exercise, reuniting the Immigration Rules with the principles of Article 8 – so that ‘equity’ and ‘law’ are one in this area.

But Article 8 will not go away, and the extensive jurisprudence on it – from the Strasbourg and UK courts – will not go away either.  According to the Statement of Intent

This does not mean that the Secretary of State and Parliament have the only say on what is proportionate. The Courts have a very clear role in determining the proportionality of the requirements in the Immigration Rules. It is for the State to demonstrate that measures that interfere with private and family life are proportionate. But a system of rules setting out what is or is not proportionate, outside of exceptional circumstances, is compatible with individual rights, as has been accepted by the Courts in other spheres, e.g. housing law. Where the rules have explicitly taken into account proportionality, the role of the Courts should shift from reviewing the proportionality of individual administrative decisions to reviewing the proportionality of the rules. [37]

This is a puzzling statement. It suggests that the ‘Courts’ – including the Asylum and Immigration Tribunal? – will not look at whether ‘individual administrative decisions’ are proportionate in Article 8 terms. The experience of Immigration Judges is that sometimes those decisions are wrong because officials have failed to give due weight to matters that show that the proposed interference with Article 8 rights is disproportionate: for example, where the official failed to appreciate that in a relationship between adult family members there are exceptionally close emotional ties, and real, committed and effective personal support – enough to bring the relationship within the protection of Article 8. The government appear to think that only a challenge to the rules themselves will be possible. It is not the role of the Tribunal to ‘review the proportionality of the rules’ – whatever this means. If the rules themselves do not comply with the ECHR, that is a matter for the higher courts to consider. Hitherto, the Tribunal has been required to determine each case on its own facts, and has the duty to make its own findings of fact – including findings about whether an adverse Article 8 decision was ‘proportionate’. If the plan is to restrict the Tribunal’s independent fact-finding and its ability to reach its own decisions on proportionality, it is arguable that appellants would be deprived of an ‘effective remedy’ for breaches of their human rights – something guaranteed under Article 13 of the Convention.

It’s almost as if the Home Office don’t trust the Judges.

The Trouble with Joint Enterprise

The Lord Chief Justice is the UK’s most senior judge and has particular responsibility for the administration of criminal justice in the Courts. When suggests that the ‘fiendishly difficult’ law of murder needs reform, you might think that people would sit up and pay attention. On 6th December 2011 Lord Judge told a press conference that

‘It is sometimes felt that in the long run the complications [in the law] leave a sense of injustice about how an individual case has fitted into the framework overall. I would have thought myself that a careful consideration of reform of the law of murder might reduce the call for the automatic sentence to be removed.’

He also spoke of the difficulties in the legal doctrine of ‘joint enterprise’ which prosecutors use against people who are marginally involved in group violence that leads to a killing.

There is a serious mismatch between the law that allows people who are very remotely connected to a killing to be found guilty of murder, and the law that requires everyone convicted of murder, whether the actual killer or the fringe member of a gang to get the same sentence: life imprisonment. One or the other or both must change.

A little legal background. The law distinguishes between ‘principals’ – people who are directly responsible for committing offences, and ‘secondary parties’, who are guilty because they have indirectly participated in a ‘common design’ with the principal but may not have performed the criminal action with him. But in practice there are three forms of joint enterprise liability:

1. Where two or more people commit a single crime together, all as joint principals, for example when three robbers together confront bank staff.

2. Where D2 aids and abets D1 to commit a single crime, for example where D2 provides D1 with a weapon for use in a robbery, or acts as getaway driver, or gives encouragement (as, notoriously, with ‘let him have it, Chris’ in the case of Derek Bentley).

3. Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B) which D2 had foreseen he might (intentionally) commit.

The difficulties arise in case 3 and are laid bare when the law deals with group violence that ends in a killing. The classic case would involve a showdown between two gangs of youths. They charge around in a park shouting and waving knives at each other. Gang A runs off, but Gang B sees and chases after a straggler.  The leaders of gang B catch up with him and stabs him. He dies on the spot. The killing takes place out of sight of X, who was at the back of Gang B and did not know about the stabbing until afterwards. Now, if X went to Park intending to do some violence in the showdown with gang A, and he foresaw that someone else in his gang might kill or seriously injure another person, then X is guilty of the murder as much as the stabber. The judges have developed the doctrine of joint enterprise to make this possible.

So joint enterprise makes X guilty of murder without intending to kill or seriously injure anyone  – the necessary mental elements that must be otherwise be proved in murder. He did not use a weapon. He did not see the weapon being used. He did not know that a killing had occurred. He is guilty because he joined in another, prior ‘common design’, and foresaw that some one else might (intentionally)  kill or cause serious injury.

He will get a life sentence: the minimum time he has to serve before he can be considered for release on licence may be shorter than the actual stabber’s but it is a life sentence nonetheless.

Can a conviction for murder on that basis be justified, and if so should it call for the same sentence as the real killer gets?

The meaning and application of joint enterprise in murder cases has occupied the country’s most senior judges in the House of Lords/Supreme Court and the Court of Appeal (Criminal Division) with worrying regularity over the last 20 years, and each time the Court has given subtle but important variations to its statements of what the law is. (For reference, the leading cases are R. v Powell & English (1999) House of Lords; R. v Rahman (2009) House of Lords; Yemoh (2009) Court of Appeal; Mendez (2010), Court of Appeal;  R. v A (2010), Court of Appeal)).

Another case, Gnango (2010, Court of Appeal) shows how far the Courts have been prepared to go and is worth looking at in more detail. G and some one referred to as Bandana Man (B) had a gun fight in the street. A shot from B’s gun killed a passerby. Bandana Man ran away. A jury convicted G of murder, having been directed that if they thought G & B had taken part in the joint enterprise of affray (ie the unlawful violence in the gun fight between themselves), and if G realised that B might kill someone by shooting, then G was guilty of murder.

The Court of Appeal unusually assembled 5 of its most senior Judges to hear the appeal (the usual number is 3). They decided that the Judge’s directions went too far – they thought that the killing by B of the passerby was too far outside the scope of the joint enterprise (G and B to shoot one another) for G to be guilty of her murder. The prosecution appealed to the Supreme Court, including Lord Judge. In a judgment given on 14th December 2011 they upheld the conviction by a majority of 6-1. They took a broad brush approach, deciding that G and B had chosen to indulge in a gunfight in a public place, each intending to kill or cause serious injury to the other, in circumstances where there was a foreseeable risk that this result would be suffered by an innocent bystander. It was a matter of chance which of the two fired what proved to be the fatal shot.

So liability depends on joining crime A and foreseeing that crime B might occur. That is a very open-ended basis for convicting people. The sheer number of times that joint enterprise has come before the highest appeal Courts clearly suggests that trial judges, and maybe even the appeal judges, are having difficulty in formulating and applying the law correctly. If they struggle, what are teenagers who may get caught up in group violence meant to think? You go along for what may be an ugly bit of fighting – perhaps sparked off by an immature row outside the school gate; things get out of hand – some one pulls a knife; a boy is killed – and you can be found guilty of murder if you foresaw or realised that it might happen. Please note: ‘might happen’; not ‘would happen’. Might happen.

Of course gang violence is a scourge in some places in the UK; and people die pointlessly in gang fights. Their families’ lives are destroyed. There is an undoubted public interest in discouraging and preventing gang violence, and the criminal law has an important role to play. Lord Brown expressed the view in Gnango that

‘The general public would be astonished and appalled if in those circumstances the law attached liability for the death only to the gunman who actually fired the fatal shot (which it would not always be possible to determine).’

He may well be right – in circumstances like the insane shoot-out in Gnango’s case. However, the trouble with the present law is that it allows prosecutors to cast the net too wide in some cases, and to draw in people who on a common-sense view are too remote from the killing to share full responsibility for it. The result is an increased risk that the wrong people end up with convictions for murder. Are we comfortable with a law which, in effect, allows a jury to say: you were there or thereabouts; you were in the gang; you didn’t kill but we think you all must pay? When the Lord Chief Justice speaks of a ‘sense of injustice about how an individual case has fitted into the framework overall’ this is not the voice of a wet liberal – as can be shown in the line he takes in Gnango.

If we need to convict people on this basis, shouldn’t we at least allow the sentencer to draw a distinction between the person who has pulled the trigger and his co-defendant who went along and merely foresaw that some one might be killed? While the life sentence remains the only sentence for all kinds of murder, how can that be just? Andrew Jeffries QC and Kim Evans write about the problems in the one-size-fits-all sentence in the The Justice Gap focussing on mercy killings getting the same sentence (apart from the tariff) as gangland executions. The same issue arises in joint enterprise – there must be a better and more flexible way of measuring degrees of culpability in sentences.

(This post also appears in http://thejusticegap.com – the brilliant online magazine which tells you what the law is really about.)

DEPORTATION & FAMILY LIFE

This a true story about deportation and family life.

M came to the UK in 2005 from the Indian subcontinent as a student. He had a visa until 2008. While at college he got a part-time job, as allowed by his visa, and sent money home to his family. He was a good student. After a few months he started a relationship with a young British woman, A. She had previously been the victim of a violent attempt by her father and her male relations while she was on holiday in Pakistan to forcibly marry her to another family member, but with the help of the British Foreign Office, she escaped to the UK. In the summer of 2006, A’s family in the UK traced M. They kidnapped him and beat him up, and ordered him not to see A again. M and A courageously ignored them, and in due course they applied to the Home Office for a Certificate of Approval for marriage, which was granted. They married in December 2006 without the consent of A’s family. In  2007 the Home Office granted M leave to remain in the UK as the spouse of a British citizen until 2009, when he was granted indefinite leave to remain. Later, he applied for British citizenship.

While that application was under consideration M charged with fraud and remanded in custody. In December 2009 he pleaded guilty to conspiracy to launder the proceeds of an extensive mortgage fraud, and offences in relation to false identity documents used in the fraud. He had been recruited by the ringleaders to go to banks and withdraw the fraudulently obtained money, in cash, using false IDs. His name appeared on (fake) company documents used to carry out the fraud, but he was not sentenced as one of the main players in it. In March 2010 he was sentenced to four years imprisonment. The Home Office then served him with a deportation notice, to Pakistan.

Now, a bit of law.

Section 32 of the UK Borders Act 2007 (http://tinyurl.com/5trtolx) makes deportation automatic for ‘foreign criminals’ such as M who have been sentenced to 12 months imprisonment or more. This law was New Labour’s attempt to ‘rebalance’ the system: it abolished the Home Office’s discretion to decide whether to deport in individual cases – although they invariably did and there has always been a powerful presumption that deportation for serious criminals is in the public interest.

What Theresa May and her friends dislike is the use that potential deportees can make of the European Convention on Human Rights, made part of our law by the Human Rights Act 1998, especially Articles 3 and 8. Section 33 of the UK Borders Act creates an exception to the automatic deportation provision in Section 32 (http://tinyurl.com/5tap2ze), where deportation would breach the offender’s ECHR rights, or this country’s Convention obligations to him.

Article 3 prohibits torture, and inhuman or degrading treatment or punishment. It prevents the government from returning foreigners to states where there is a real risk that they may be tortured or treated in that way. If you think it is OK knowingly to consign people to that sort of fate, don’t bother reading the rest of this post. Go and pull the wings off flies instead.

Article 8 is more complicated. It protects our right to family and private life from unjustified and disproportionate interference by the state. The framers of the ECHR were for the most part conservatively minded, not to say religiously minded: for them, the integrity of the family was the centrepiece of a good and orderly society. So it is for most of us, including the present government. In the aftermath of the August riots (see last post) the Prime Minister spoke of the need to support the 120,000 most troubled families, who he thinks largely caused the disorder (http://tinyurl.com/3ddrefu). If you think that it is OK for the government to break up families, and muscle into people’s private lives without a compelling reason, stop reading this post and remind yourself of how the KGB or the Gestapo or the Syrian secret police conduct themselves.

Interference can take many forms. It can be directed at one family member, but may harm others. It comes sharply into focus in the manifold cases where the government wants to remove a family member from the UK, potentially causing the break-up of the family. British Courts including the House of Lords and the Supreme Court, and the European Court of Human Rights, have agonised over how to draw the line between interference that is justified and proportionate with the right to family and private life, and that which is not. Most of the time, the decision-maker’s task is highly fact-specific. But the underlying principle is that we all have a legal right to family and private life, because they are so important for individuals and society, and there has to be a compelling justification before that right can be seriously interfered with.

When children are involved, the law requires Home Office to take their best interests and well-being into account as primary (though not paramount) considerations. It has to safeguard and promote their welfare in any of its functions relating to immigration, asylum and nationality. This has nothing to do with the Human Rights Act: the law in question is Section 55 of the Borders, Citizenship and Immigration Act 2009 (http://tinyurl.com/5vcaukr).

Back to M: the Home Office wanted to deport him to Pakistan when he had served his sentence. He had no children, but A loyally stood by him while he was in prison. Their marriage was made to last. The Home Office dealt with M’s argument that his deportation would terminate his marriage and destroy his family by suggesting that A went with him. She was a British citizen and could not be removed from the country. Another branch of the government had rescued her from serious abuse and violence by her own family. No one could make her leave the UK or go back to Pakistan, and for obvious reasons it was the last place she would have gone to, as her life would have been in danger for bringing ‘dishonour’ to her family.

Eventually M’s case came to appeal. Reports by the probation service were clear: he had reformed, and was not likely to reoffend. He had no previous convictions. His crime though serious was not violent or sexual. He was not evil. A decision had to be made: he was liable for deportation under Section 32, and there is a clear and powerful public interest in deporting foreigners who commit serious crime here. He was not at risk of torture etc, but deportation would terminate his marriage and destroy his and wife’s family life. His wife was utterly blameless in all this. For killers, or a major drug dealers – different considerations would apply: the public interest in them not being here would probably be overwhelming, and would outweigh family life claims, but those aren’t the hard cases. It’s where the balance is closer that the difficult decisions have to be made.

So Mrs May and your friends, what would you do with M when you’ve changed the rules? What would you do if he and A had children – who would also have been British citizens? Is it your wish to visit the sins of one family member on the rest, to break up families in every case without exception? Forget about the unpopular Euro-packaging of the right to family life, and look at what the right actually means and what it protects. Which part of family and private life needs less protection by a legal right? Do tell.

You can adjust the immigration rules if you like, and it need not be voted on in Parliament. But unless you scrap Section 55, you’ll have to carry on ensuring that children are safeguarded; and even if you manage to ditch the Human Rights Act, the UK will be a signatory of the ECHR – so you’ll have more judgments from Strasbourg rather than our courts to consider.

The Scarman Report – 30 Years On

A month on, the riots begin to look like an outbreak of midsummer madness – not the Götterdämmerung as imagined by the right, not the backlash of the oppressed as wishfully thought on the left: but something hard to describe in a political sound-bite. I thought about the disturbances in 1981 and took down my battered Penguin edition of Lord Scarman’s Report on the Brixton Riot in case there was something to learn from it.

The public inquiry announced on 31st August (http://tinyurl.com/3uuthx6) should give us a better understanding, and its members appear well qualified. But it’s worth noticing that when Brixton exploded in April 1981, the Home Secretary (William Whitelaw) did not appoint a panel of low-profile technocrats, but one of the most senior and respected Judges of the day, Lord Scarman, to head the inquiry. His report was published only seven months later, and it laid the foundations of the most important changes to police practice in a generation, the Police & Criminal Evidence Act 1984. It also led to the reforms of public order offences in the Public Order Act 1986, and began to re-set official attitudes to ethnic minorities.

It is worth looking at the facts of the Brixton riot and Scarman’s findings. Both may help to put those terrible August days into context.

Scarman heard evidence from witnesses, in public, for four weeks that summer, followed by a week of written evidence and submissions, also in public, in early September. He visited locations in London, Birmingham and Liverpool. His report was published as a Penguin paperback and was widely read.

Scarman did three things: he gave a full account of what happened before and during the riots; he described the social and economic background; and he made recommendations. His approach was far more subtle than to ascribe causes, but he identified overt racial discrimination and lack of opportunity for ethnic minorities in housing, education and employment as key background features. Young black people felt ‘a particular sense of frustration and deprivation. Spending much of their lives on the street, they are bound to come into contact with criminals and the police’ (8.5). He said ‘the social conditions in Brixton do not provide an excuse for disorder. But the disorders cannot be fully understood unless they are seen in the context of complex political, social and economic factors which together create a predisposition towards violent protest’ (8.7).

In the days before the riot the police launched ‘Operation Swamp’ which sent hundreds of officers in to stop and search the local youth – with no legal requirement at that time of ‘reasonable cause to suspect’ that they were committing a crime or were about to; and when the youth protested, in went the Special Patrol Group. Community policing in areas like Brixton was virtually non-existent at that time. Scarman criticised the police. He thought that ‘they must carry some responsibility for the outbreak of disorder…they were partly to blame for the breakdown in community relations’ (4.97). Junior officers showed racial prejudice and harassed members of the public, and he found that their behaviour gave substance and credibility to the critics of the police. But there was no institutional racism according to Scarman (8.20) – for that finding we had to wait until 1999, with the MacPherson Report into Stephen Lawrence’s murder. With a few exceptions, Scarman did not think that police overreacted to the ‘terrifying lawlessness of the crowds’. Their tactics were generally to be commended, not criticised, although the execution of their plans was not firm enough (8.24). He found that the community and its leaders in Brixton had to take ‘their share of the blame for the atmosphere of distrust and mutual suspicion between the police and the community’ during the 1970s’.

On the first day of the Brixton riots, officers attempted to arrest youths who had stabbed a young man, without success. The victim ran away, not wanting the police’s help, and the officers followed. When they caught up with him he was bleeding profusely. The crowd thought the police had injured him. In the aftermath of  Operation Swamp and those years of mutual suspicion, they were seen as the enemy. What the crowd mistakenly thought had occurred was enough to start battles between them and the police.

Serious looting and arson began on the second day. Scarman found that the looters were white and black. Some were very young, but the whites were ‘generally older and more systematic in their methods’ (3.61). The looters were ‘quite different from the people who were attacking the police. Many of them came from outside Brixton and were simply taking advantage of the disorders for their own criminal purposes’. Any police who ventured into the area where looting was taking place were attacked. Buildings were set on fire but the fire brigade could not reach them because there were not enough police to escort them.

Sounds familiar, doesn’t it? There’s much in common with recent events: a violent incident between police and a member of the public, which is not properly explained at the start; a background of mistrust between elements of the community and the police in the area; an apparent failure by the police to execute their plans on the street to quell the disorder that the initial incident provoked; then widespread looting, arson and opportunism – by dedicated criminals and hangers-on.

1981 was coincidentally the year when the British Crime Survey began to keep a proper, statistically sound record of the incidence of crime in the UK. In its latest report (July 2011, http://tinyurl.com/3d95zgj) it reports that figures for 2010-11 were the lowest since the Survey started. Crime peaked in the mid-1990s and has been falling ever since. Now, you can a torture a statistic till it says what you want, but consider this: is a society that is suffering from a ‘slow moral collapse’ likely to experience a steady and consistent fall in criminality at the same time?

Looters came into Brixton from outside because they heard that the opportunity to steal had arisen. They did not have BBM or Twitter, but what’s the difference apart from the speed at which information now travels? The rapid spread of disorder in 2011 into other places far from Tottenham does not exactly replicate what happened in Brixton. But in July 1981, there were riots in Birmingham, Leeds, Liverpool, and several other parts of London. I remember the sense that these were political, a cry of inarticulate rage against the unfamiliar toughness of the Thatcher government – a toughness that now looks rhetorical and mild in comparison with the anti-liberty stance of New Labour and the present economic policies.

I don’t think the 2011 disorder will be remembered like that, if it is remembered at all.
It was shocking that so many people were willing not just to riot, but to do it in their own streets and foul their own nests. The women recorded here on 9th August (http://t.co/1WU4Gig) stole from a local off-licence; they said they had jobs; they blamed ‘the rich’ and the shopkeepers for the rioting. They have no insight whatever and probably no morals. But it’s daft to draw general conclusions from attitudes like theirs about the state of the moral health of society as a whole.

Scarman was a liberal-minded judge – not just by the austere standards of the judiciary of his day, but on traditional even Victorian liberal principles. He was fair and credible and well respected. His report attracted criticism from right and left, but its legacy was the many reforms that were adopted because of his recommendations. Let’s hope that the 2011 inquiry will be as swift and decisive and will make sensible proposals for the future.