When the law is warped…

As you may have noticed, these weekly musings range in tone. Sometimes I’m waxing lyrical, and my prose may sway into poetics. Sometimes it’s going to be more empirical and grounded in emergent legal developments. 

It’s always personal. 

It’s always political.

For me, these dimensions are fused and it’s rare I catch sight of one without the other. This week I want to dwell on how ‘law’ is being used in various national contexts – it’s gonna be a long one so buckle up. There’s lots of noise about ‘free speech’ of late, particularly when pitted against ‘hate speech’.

I’m a firm believer in rights – rights, that are inalienable to us as living, breathing beings on the planet, in addition to rights that inhere to the very planet itself. I am, however, of the belief that these rights don’t exist free-standing. Tethered to them are responsibilities to live in the ecology that surrounds us; environmentally and socially (whether we know it or not). We have responsibilities to respect Others, do no harm, and live within the Earth’s resources – not beyond them. 

The ‘law’ and the justice system that administers it, is about balancing our rights and responsibilities. One trend I see at present is the law refracting away from general morality, to protect the status-quo and thus being stripped of its original intent. Especially in terms of the right to protest, namely the rights to freedom of expression, assemble & association, enshrined in our Constitution, Bunreacht na hÉireann at Article 40.6.1°.

Here’s some real-world examples:

Ireland

On 19 September, self-styled ‘citizen journalist’ Philip Dwyer was found not guilty of breach of the peace contrary to Section 6 of the Criminal Justice (Public Order) Act 1994 at a sitting of Tallaght District Court. The incident in question occurred in 2021 when Dwyer lurked outside a creche and waited until he could confront someone in charge. Why? He had seen rainbow flag drawings in the window and become exceedingly concerned that children were being “groomed”.

Ms. Madigan, the creche owner arrived to the creche having received a phonecall that Dwyer was videoing the building. He practically licked his lips with antagonistic glee according to Ms. Madigan when she arrived, rubbing his hands together and saying “Let’s go. Let’s do this”. He was quick to debase the conversation with claims that “homosexuals are paedophiles.” A witness said he also accused the creche owner of “indoctrinating four-year-olds to welcome paedophiles into their life.” 

The judge on the day, somehow, despite there being two credible targets who gave testimony that Dwyer aggressively conflated the rainbow flags in the windows with paedophilia, decided that Dwyer didn’t ‘intend’ on committing a breach of the peace – and therefore could not find him guilty. 

*(An aside: crimes are made up of building blocks called elements. The prosecutor i.e. the State/Director of Public Prosecution (DPP) have to prove every element beyond a reasonable doubt in order to secure a conviction. Some crimes involve behaviour, in and of itself e.g. manslaughter – killing someone. This behavioural element is called the ‘actus reus’. Other crimes involve a mental element, known as ‘mens rea’, where you cannot be found guilty unless the outcome was intentional, or you were recklessness as whether it would occur. Take for example murder – you had to have meant to “kill or cause serious injury to” someone.)

Now, even a cursory glance at Dwyer’s media accounts will expose to you the hysterical homophobia this man expresses. Because he doesn’t spite this hatred ‘intending to break the peace’, does that mean it doesn’t harm people? Insult, offend and devalue their lives, identities and realities? Shouting at people, following them, raising your voice and barraging accusations at them all seem to disrupt peacefulness, or at the very least is reckless as to the impact of such confrontational behaviour. 

No accountability for such intimidating conduct, that cannot be seen to serve any public good is disappointing – but unsurprising considering our completely non-existent legislation on hate speech. Let’s see if the Criminal Justice (Hate Offences) Bill 2022 shores up any stronger protection.

Germany 

Section 130 of their Criminal Code criminalises incitement to hatred:

(1) Whosoever, in a manner capable of disturbing the public peace

1. incites hatred against segments of the population or calls for violent or arbitrary measures against them; or

2. assaults the human dignity of others by insulting, maliciously maligning, or defaming segments of the population,

shall be liable to imprisonment from three months to five years.

German legal observers are sounding the alarm that this provision seems to be employed exclusively with a double-standard. For many, this law is being weaponised to intimidate and silence supporters of Palestine. Several activists have been prosecuted using this law for chanting ‘From the River to the Sea’, a slogan that references the totality of land between the Jordan River to the east and the Mediterranean Sea to the west, encompassing Israel and the occupied Palestinian territories.

The German courts have zigzagged between more and less severe interpretations of this phrase. On the one hand, in November 2023, Nancy Faeser, the interior minister, banned it usage – declaring it to be a Hamas slogan. This February, the justice minister, Marco Buschmann, said the phrase could be understood as “condoning the killings committed in Israel” and was therefore antisemitic. On the other, a Bavarian court ruled in June that the phrase expected to be used in an upcoming demonstration in Munich “did not constitute a crime” and could not be banned outright, finding that the “benefit of the doubt” around the slogan must prevail. The Central Council of Jews in Germany, which represents an approximate community of 200,000, criticised that decision as “incomprehensible”.

As one lawyer notes, “A man arrested for arson of a mosque might not be labelled as an anti-Muslim offender. However, attending a protest in support of Palestine can immediately result in charges under Article 130 and be recorded as an anti-Semitic offence.” 

Across society, State powers want to de-platform solidarity. One example among hundreds (if not thousands), is the revocation of funding to the Oyoun cultural center in Berlin-Neukölln, by the Senate for hosting an event with Jewish Voice for a Just Peace in the Middle East. After the money was revoked, when the centre started speaking out about it – they were sued for being anti-Semitic. Yes. You read that right. For trying to host an event by and for Jews, they were being anti-Semitic.. it’s pretty creative right? Luckily, the Court found in their favour and they successfully challenged the defamation proceedings against them.

Germany is reacting to the genocide in Gaza, and what has been unbearably incremental strangulation of Palestine since 1948 with flagrant denialism. It seems to think ‘never again’ was an extremely limited, time and context specific demand. The snipering of injured toddlers and concentration camps popping up like daisies in Gaza outside of its purview. 

It explicitly considers support for Israel to be a matter of Staatsräson, or ‘reason of state’, at the core of its national identity. This can be traced back to post-Holocaust guilt. Fast forward 8 decades and it’s holding hard to this allegiance. It now requires an agreement to Zionism as part of its citizenship stipulations. 

U.S.A. 

In 2008, California passed ‘Marsy’s Law’ via ballot, which means it was enacted through popular vote – like a referendum. It seeks to equalise the Constitutional rights afforded to the victim with those available to the accused. It was born from a situation where the family of a murdered woman, Marsalee Nicholas, ran into her murderer in the supermarket. They were totally unaware he had been released from prison. The law now safeguards 17 rights, including the right to:

1. be treated with dignity and respect
2. be notified of their rights
3. be present and heard at proceedings related to the crime to which they were a victim
4. a timely resolution
5. reasonable protection from accused.

Since then, many other States have followed suit, including Ohio in 2017. Interestingly the Supreme Court of Pennsylvania and Montana have since found the law unconstitutional (see map). 

In Ohio, Marsy’s Law has been invoked recently in the case of the Boeing 5. This is an ongoing case resulting from anti-war activists blockading Boeing’s Guidance Repair Center, which builds missile guidance systems, aircraft, and unmanned aerial vehicles at their Ohio facility on 11 March this year. Boeing has a long history with Israel and has been supplying weapons to the nation’s military since 1948. In the wake of 7 October 2023, Boeing fast-tracked the delivery of more than 1,000 bombs to Israel. A number of those involved in the blockades were arrested and charged with various felonies, which have since been reduced to misdemeanours.

(An aside: in the U.S.A. they have two tiers of offences: a misdemeanour (our equivalent to “summary offence”) which means the penalty is generally less than 1 year imprisonment or a fine; and a felony (dealt with “on indictment” here) which can attract more than a 1 year sentence.)

In this case, technically, Boeing are the “victims”. Boeing has been able to leverage Marsy’s Law and state they wanted the accused’s’ social media posts taken down as part of a plea deal & has attempted to recover $300k of restitution from the accuseds. This seems barmy. Marsy’s Law was originally aimed at centralising the survivor/victim and ensuring they weren’t erased from the justice process. But can we really equate corporate and human victims? Should they be treated as the same? 

England 

Roger Hallam, 57, Daniel Shaw, 38, Louise Lancaster, 58, Lucia Whittaker De Abreu, 34, and Cressida Gethin, 22, were found guilty in late July of “conspiracy to cause a public nuisance” for organising direct action protests to block the M25 during a zoom call in November 2022 – which led to bringing traffic to a standstill over 4 days that very month. Prosecutors state this action disrupted more than 700,000 drivers, caused economic damage of over £760,000 and racked up £1 million in policing costs.

Just Stop Oil co-founder Roger Hallam was given 5 years, and the rest were given 4. 

The sentences are believed to be the longest in the UK’s history for non-violent protest and were delivered under two new controversial laws (the Police, Crime, Sentencing and Courts Act 2022 and Public Order Act 2023) that supercharge policing powers to crack down on disruptive protests, even when they are non-violent. The Judge referred to these individuals as “extremists” and denied the existence of the right to civil disobedience. It’s disheartening to see justice systems only respect the right to protest when it comes nicely packaged.

They place the act of planning a “public nuisance” event, carrying a maximum sentence of 10 years in prison, on a similar footing as violent crimes like robbery, which can be up to 12 years; or rape, where the sentence can be anywhere between 4 to 19 years.

Commentators point to a creep in authoritarianism in British society, while Amnesty International said these excessive sentences mark a “dark new era for protest rights,” and give police “license to close down almost any protest they wish.” 

Like the Boeing case, economic/corporate harm cannot and should not be compared to harm caused to the person. That is the primary misapplication of the law(justice/morality) in my view. 

Another alarming development is a new Judge-made norm where accuseds’ are precluded from explaining their motivations to the Court. 

3 Insulate Britain activists - David Nixon, Amy Pritchard and Giovanna Lewis, are serving jail terms for contempt of court for breaching rulings made by a judge that they were not to mention the climate crisis, fuel poverty or the history of the peaceful civil rights movement to juries when on trial for direct actions. Obviously, they did speak about their motivations because the direction not to seemed arbitrary. Judge Silas Reid at Inner London Crown Court said the defendants’ motivations for acting the way they did had no relevance and jailed them for resisting his divine (if not totally delusional) right to muzzle them.

Being jailed for defending yourself feels like a bit much. Similarly, our civil rights can only justifiably be abridged once we have been found guilty. At the time of trial, we still enjoy the presumption of innocence. So, to be curtailed in how we speak and express our version of events of runs counter to fair procedures. Further, the Judges deciding what and what cannot be spoken in Court has no actual legal basis. This is an informal practice that has leaked into other Courts according to lawyers in the U.K. I suspect (and hope) this will be challenged.

References:

1. Irish Independent, Sean McCartaigh, ‘Far-right activist Philip Dwyer acquitted of breach of the peace after confronting creche owner over rainbow flag drawings’ .
2. Prism Reports, C. Frances, ‘The case of the Boeing Five: How a controversial Ohio law is helping prosecute organizers for Palestinian liberation’.
3. The Guardian, Damien Gale, ‘Five Just Stop Oil activists receive record sentences for planning to block M25’
4. AA, Omer Faruk Madanoglu, ‘Germany's enforcement of criminal code draws criticism for targeting Palestine supporters’