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The News of the World, a Sunday tabloid, campaigned to allow parents to find out where paedophiles live, the so-called Sarah’s Law. Sarah Payne was a girl who was murdered by a previously convicted paedophile. The campaign has been partially successful and pilots are underway around the country. The police feared vigilantism. This has not happened because the scope of the scheme has been restricted to enquiring about specific individuals who have contact with one’s children. It is not an open list of paedophiles. The police carry out a risk assessment before deciding to respond.

There is a balance between public protection and the right to privacy. The risk of a child being snatched is greater in the vicinity of paedophiles. Even if the risk is low, many parents would like to know if there is a specific risk. Meanwhile society wants to rehabilitate the low-risk convicted paedophiles so they can rebuild their lives and put their past behind them. In these circumstances, the right to privacy gives way to the need for public protection. The right to privacy is surrendered upon conviction.

The mother behind the campaign, Sarah Payne, has been recognised for her extraordinary achievement in bringing about greater openness in hereunto private information. She has received an honour from the Queen. She has also recently become our first Victim’s Champion and will speak up for victims who are now at the centre of the criminal justice system. This new role raises a fundamental constitutional issue.

Emphasising victimhood marks a further departure away from justice for defendants. Currently, Victim Impact Statements are read out at the end of a trial prior to sentencing which capture the sorrowful nature of the offence. It is for the judge to decide on sentencing bearing in mind all aspects of the case. Under our legal system the sentencing is based primarily upon culpability, not on consequence. This is why death by driving cases cause so much anguish. A single moment’s inattention is not punished with life imprisonment. An eloquent impact statement should not lead to a more severe penalty than one where the family does not prepare a statement.

There is a further concern if the Victim’s Champion is also a progenitor of an eponymous law. To what extent is the Victim’s Champion pursuing a personal agenda? If the country is to introduce such a role, it should be defined in an objective way. What is meant by a victim? Who can speak for victims? What do victims need? How can the court experience be improved? What happens if the defendant is found Not Guilty? A Home Office Minister should answer these questions properly and after a due political process. Fundamental questions should not be left to a celebrated victim with a strong media presence.

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The ancients were not allowed to meet face-to-face with their ruler. They would stoop low to show obeisance. Bowing can be quite a sophisticated art when conducted properly. A vestige of this is to be found in the etiquette when encountering the Queen. The practice is being revived in an unexpected manner. Media types tell us that it is now illegal to take photographs of police constables. As the police symbolise State authority, it seems we can no longer look at photographs of our rulers.

The relevant statute is the Counter-Terrorism Act 2008 which makes it an offence to elicit information about a constable which is likely to be useful to a terrorist. Since taking a photograph may be construed as eliciting information, then photographers could find themselves arrested.

Any citizen wary of oppressive government will wonder if this is another example of the State over-reacting to the “terrorist threat”. However, looking more closely at the law, a different story emerges. The latest Act amends an earlier one – the Terrorism Act 2000 – which had already prohibited photography useful for terrorism. The amendment makes it clear that the prohibition includes taking photos of police constables. The logic of the prohibition is as follows:

2000 Act: Do not take photos useful for terrorism.
2008 Act: Do not take photos useful for terrorism including photos of constables.

The scope of the 2008 Act was already included in the 2000 Act. It was already illegal to take photographs of constables if useful for terrorism. Yet the 2008 Act has generated much ire. People seem to ignore the logic of inclusion. Cognitive psychologist have a name for this – the Inclusion Fallacy.

There are two explanations for the Inclusion Fallacy in the political context: the trigger effect and the short-term memory effect. The first is based on the notion that an underlying grievance needs a trigger to bring it to public attention. Photo-journalists will naturally be keen to ensure that their freedom does not get usurped by the law-makers. They need the trigger to raise it up the political agenda and perhaps deter the government from pursuing even more restrictive policies. The short-term memory effect ignores the past. What counts is the here and now, the latest change. Given that the amendment specifies police constables then, under this view, the government must be tightening up on photographing constables.

Should we be worried? The latest amendment has arguably reduced the likelihood that a photographer would get arrested in normal circumstances. The courts will know that there is an emphasis on protecting members of the security forces and police constables who may be the target of terrorist activity. Crucially, police will need to be reasonable in enforcing the prohibition on photography. Nobody wants tourists outside Buckingham Palace to be arrested. Ironically, it is not prohibited to take a photograph of our Monarch when she fulfilling her public duties.