Reconstructing Criminal Law

John Jordan, in his article, the subversive imagination of anti-road protest and Reclaim the Streets, illustrates the political and even ideological motives of those involved. He stood at such protests and is a keen follower of the movement which opposes the status quo in favour of ecologism and anti-capitalism. He is quoted thus: "The regime of technological society; economic growth, 'progress', property rights, consumerism, domination over nature … achieving an optimum human existence at the expense of all other nature".

This quote, basically, is not a programme of disorder, it is an alternative, anti-capitalist, political programme, and as such is far more dangerous to the state's organised interests. He repeatedly speaks of a 'utopia19', of industrial collapse20, and of all this being a cultural problem, requiring a cultural response21 and the rejection of 'old politics'22. Having used, unsuccessfully, conventional political means23, this response will take the form of direct action24.

He cites his personal experience of directly acting in the M11 Motorway protests 1993, the Claremont Road protest 1994 and the international Reclaim the Streets protests of 1995 to 2000. The Reclaim the Streets protests themselves were not illegal, the ECHR Article 10 protecting freedom of expression. However, faced with such political undercurrents, which were fundamentally an attack on the legitimacy and authority of the state, the state reacted by legislating or adapting existing legislation.

The afore mentioned aggravated trespass, failure to move on when required, riot, affray and violent disorder. Lacey and Wells call into question the validity of the statutes "extraordinarily broad scope … to behaviour which most people would think of as falling far short of justifying a criminal response25". To supplement this view are the events at Stonehenge 1986: Traditionally vagrants had gathered at Stonehenge every summer solstice. In 1986 Wiltshire County Council attempted to block off the area under the Traffic Regulation Act 1984.

The hippie convoy was not dissuaded and the celebration resulted in riot police arresting 500 people who tried to force their way onto the site. This reaction was associated with the recent trend towards environmental direct action and "from a criminal law perspective nothing divides these forms of group action. It [was] only through social, political and police refractions that events acquire[d] their 'disorderly' or 'legitimate' hues26". So disorder is a malleable tool for presenting political difference and protest as mere lawlessness27.

Objections to the Thatcherite domination of politics during the 1980s further highlight – as if it was needed – the political nature of the malaise: "Unbridled Thatcherite enterprise culture promoted notions of self-help, no reliance on the state … In tandem, the same Government also put restraints on moral 'excesses'28" A protest arranged on the M41 gave Jordan and his pals a "priceless opportunity to bring greens, socialists and anarchists together29".

This, and talk of making public what was private, turning capitalism into communes and the struggle against global capitalism30 is purely Marxist and diametrically opposed to the capitalist status quo. What is more concerning to proponents of civil liberties is the blurred view of 'those in power' as to types of group action. The 1997 Reclaim the Streets 'carnival' in London was received by the media as; "Riot frenzy – anarchist thugs bring terror to London. Rallying cry of mob – don't vote, make trouble31".

Meanwhile "the rave scene saw it as the best illegal rave or dance music party in history32". It was road rave turned into road rage33 which well illustrates how the state's political reaction became an overreaction. "If I can't dance it's not my revolution34" was a banner held at the 1997 Reclaim the Streets rally in Trafalgar Square. This slogan surmises beautifully both Jordan's view that "the rave scene saw it as the best illegal rave … " and Rietveld's article: Repetitive beats: free parties and the politics of contemporary DIY dance culture in Britain.

She puts forward the view that what is essentially a social gathering of likeminded people, a rave, has been associated with the political motives of the anti-capitalists. Section 63 of the Criminal Justice and Public Order Act 1994, gives police '[p]owers to remove persons attending or preparing for a rave'. A rave is defined as; 'a gathering on land or in the open air of 100 or more persons … at which amplified music is played … music includes sounds wholly or predominately characterised by the emission of a succession of repetitive beats'.

It is difficult to visualise, in any manner, how exactly criminologists could defend this legislation as warranting making criminals of people. Rietveld sees this as an overreaction based upon the members of raves as a; "mixture of travellers … hippies … eco-activists … and punk squatters, who all employed certain forms of direct action35". This is not an jus illegality, but rather a lex illegality: It is wrong because it is law, not law because it is wrong. It is an easy target for authorities to attack the vagrant society despite the fact what they are doing is not understood in the traditional sense as illegal.

It contains no real moral culpability and is not harmful to a democratic society, just to the authority of the state. As Reitveld puts it; "rave is not political in itself … and how can sound systems be seen as a threat to mainstream establishment? 36" The legislature "has criminalized those who believe in freedom of movement. … in the wake of various moral panics … [with] legislation attempting to regulate the dancing musing body37". It is easy to see how the 'spiral of deviance' arises, when ravers are faced with authority's reactions.

They are "disconnect[ed] from citizenship38" and come to revel in it. Public order law exposes the political nature of criminality more than any other sphere of law save treason. Governments assert their authority by legislating in order to assert political commitment, the political commitment to their own legitimacy, authority and status. However, there is nothing token about this reaction. Norrie highlights exactly why such laws are arbitrary; "law must decontextualise action if it is to attribute responsibility39".

Public order laws are saturated in the context of the demographic they target: Ravers, hippies and anarchists all come under the same headline of lawlessness. At best public order "depoliticises protest as … mere lawlessness'40"; At worst it blurs celebration with political action; and by doing so "entrenches a selection of salient popular images such as disorder and violence into legislation, so the law is enabled both to feed moral panics and to respond to popular fears in a way that is comforting and which confirms the power and authority of government.

Combine alternative social, political and even ideological lifestyles with mass protest and you arrive at a moral panic of huge proportions, permeating right to the highest corridors of power. The reaction is no token gesture, it is a counterattack on political variance, which is so zealous in its vehemence that all forms of behaviour associated with it are swallowed whole. The irony is that the reaction not only satisfies its own fears, it creates and satisfies new ones.