This is our truth, tell us yours
An election is coming here in the UK.
I keep having flashbacks. So far, the debate has been centred on two things. Tory claims of economic competence (and Labour economic incompetence) at a time when inequality is widening, and fatuous disputes about immigration.
Now the Tories are trying to add the issue of nuclear weapons to the mix.
It could be almost any election in the 1980s.
In the gaps, the straw that binds the dung together in these built from shit political houses, are any number of knee jerk reactive policies designed to appeal to last week’s focus groups. (Note to politicians – politics works better if you design your policies for next week’s focus groups, not last weeks.) One of the gems is Cameron’s proposal to imprison for up to five years anyone who ignores or fails to report child sexual abuse.
It’s a proposal that plays well to the Daily Mail audience who think that child sexual abuse is caused by the fact that people like them aren’t running public services. It plays well to the political classes belief that more law equals better law.
It also ignores the fact that anyone who holds a public office can already be prosecuted for misconduct in public office, with a maximum sentence of life imprisonment. It’s also a simple offence to make out – on indictment, the court simply has to be persuaded that
You’d have thought that the Prime Minister would know that, and had considered asking the CPS if, in Rochdale or in Oxfordshire, or anywhere else for that matter, anyone, whether a councillor or a social worker or a senior council officer or a police officer, had conducted themselves in such a way as to make an indictment likely to succeed.
If there is existing law, which has been used in recent times, and which could be used again, why would you want to go beyond it and create new offences? We may have to face the possibility that David Cameron, in creating a new offence, rather than seeking an easy soundbite, actually wants to go beyond the existing law, and to eliminate some or all of the defences available to those he deems to have failed the young.
What are the defences possible to the existing charge. One such defence is the absence of motive. Here’s what the CPS manual has to say.
In order to establish whether the behaviour is sufficiently serious to amount to the offence, the officer’s motive is also relevant:
“…the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it had proceeded; whether from a dishonest, oppressive, or corrupt motive, under which description, fear and favour may generally be included, or from mistake or error…”
“To punish as a criminal any person who, in the gratuitous exercise of a public trust, may have fallen into error or mistake belongs only to the despotic ruler of an enslaved people, and is wholly abhorrent from the jurisprudence of this kingdom”.
(R v Borron  3 B&Ald 432: Abbott CJ, at page 434.)
At its highest the motive may be malice or bad faith but they are not prerequisites. Reckless indifference would be sufficient.
There are also a number of subjective elements to the existing offence, that require the prosecution to prove that the defendant knew, or must have known, the likely outcomes of their neglect or failure to act.
If you’re talking about creating a new law, as Cameron is, you must be considering moving beyond an offence with a strongly subjective element, to an absolute offence where the onus would be on the defendant to disprove their guilt.
Hard cases make bad law, but to move to a point where the exercise of professional judgement by a social worker could lead to life imprisonment is beyond the pale. Let me give you an example.
I was, by the time I was in my mid teens, sexually active with adults much older than me, whom I sought out outside the home. I discussed this with a friend in the context of the things my school did to try and keep me on track and in school, including diagnostic interventions by a clinical psychologist who decided I was an arse, but not clinically in need of help. (When I say an arse, I reacted to a Rohrschach test by asking ‘which one do you want me to say looks like my mother’s vagina’ before making up increasingly bizarre answers. I wasn’t ill, just immature.) I have no doubt, looking back, that I would not have disclosed my sexual activity, even if I had been asked directly, and that I would have refused to impeach my partners, who should have known better.
I didn’t always understand all this. I had formed in my head, by my mid 20s, an image of myself that said that I was simply overlooked, that no-one noticed that some of my behaviour was risky, and inappropriate.
My friend pointed out that an alternative explanation might be that the school noticed, and knew what lay behind my behaviour, but thought all the alternatives worse than simply trying to make sure I left school with some qualifications and a clean record.
The Oxfordshire revelations throw this thinking into stark relief. If I had been placed in a children’s home, I would have either terrorized my fellow residents, possibly assuming the role of abuser, or I would have escaped, to a world where the only people I would have been able to turn to would have been potential abusers, who would have become my allies against the rest of the world. I would have been just like the stroppy, gobby, awkward Oxfordshire girls for whom social services, and psychologists, had no interventions that could work.
Did my school weigh up the possibilities and decide to try and keep me in school where they could monitor me and try to offer me some options? I think so. Did they decide that not calling attention to my behaviour was the least harmful intervention they had available to them? I think so. The idea that David Cameron and the court of the Daily Mail would criminalize people who probably fully understood they were trying to make the best of a bad job, is pointless, foolish, and will make a bad situation worse.
Bad laws designed to address the fake concerns of people who are generally content with our society with all its defects? It smells like Section 28 all over again.