Monday, 22 September 2014

RISK ASSESSMENT & DISRUPTIVE BEHAVIOUR IN THE AGE OF FEAR

Future historians may very well label this the Era of Fear. Our fears are multi-dimensional. We are afraid of terrorists. We are afraid of crazies shooting up people in malls. We are especially afraid of young people.

Fear is a driver for people in authority. Government offices are in a permanent state of lock down with multiple guard points keeping out the dangerous public. Schools are increasingly taking on the appearance of a prison.

Into this comes "risk assessment". School administrators - an especially paranoic set of bureaucrats - have taken up risk assessment with a vengeance. Consider the Threat Assessment Protocol of the Langley School District, a suburb of Vancouver, British Columbia, Canada. Part of it reads "3. Worrisome Behaviours. Worrisome behaviours are those that cause concern for members of the school system and which may indicate that a student is moving toward a greater risk of violent behaviour. This would include instances where a student may be engaging in behaviours such as drawing pictures, writing stories in class, or making vague statements that do not, of themselves, constitute "uttering threats" as defined by law but are causing concern for some members of the school community because of their violent content. The majority of threat-related behaviour, from Kindergarten to Grade 12, falls into this category. All worrisome behaviours will be communicated to the school principal."

You know what results from this kind of protocol. A five year old draws a picture of a gun and all hell breaks loose. In fact that has happened a number of times in paranoic school districts in North America. The parents of an eight year old boy at Scottsdale Country Day School were called to a meeting last week. The principal told them that their child was a danger to other children and threatened to expel him over three drawings which depict a soldier, a ninja and a Star Wars character. Each was carrying a weapon and all were ideas the boy had for his Halloween costume. The principal apparently was "acting" in accordance with Scottsdale County Day School policy which makes the drawings of weapons grounds for expulsion. Elsewhere a drawing of a gun by a four-year-old resulted in the arrest of her father when he came to pick her up from school. The father was detained by police and strip-searched and his children were questioned by social services. The gun depicted was a plastic toy that belonged to his kids. There have been numerous other such incidents.

If not expelled, thousands of students will be identified as "worrisome" and will be made subject to a formal assessment. The formal assessment will become part of the student’s file. It will follow them through their entire time in the education system and into the career world. 

Formal assessments are a form of policing. In fact, in many cases fear stricken principals will pass the formal assessments onto the police. The police in turn are increasingly maintaining (and passing on) material above and beyond criminal convictions.

The next big movement in risk assessment will be the utilization of Big Data. Governments in the U.K., the U.S. and Canada have pretty much unlimited access to people’s internet usage. Big Data identifies persons who are constantly doing internet searches on topics of violence or other controversial topics. It will be a valuable tool for government to identify political outliers left and right such as environmentalists, anarchists, survivalists and socialists. In particular it will identify people who are seen as having "disruptive" attitudes.

Disruptive behaviour is another categorization favoured by the Grand Nannies that now seem so omnipresent in the administrations of North American universities. Texas Woman's University provides a procedure for the referral, evaluation, and appropriate disposition of students displaying so-called disruptive behaviour. There is the typically broad definition namely "Disruptive behaviours are overt actions, omissions to act, or verbal or written statements that would not be consistent with the actions or statements of a reasonable, prudent person under similar circumstances." The University further explains "Disruptive behaviour typically refers to directly observable behaviour. But, it may also include a student’s behaviour by electronic means (e.g. e-mail, social networking sights, postings to electronic classrooms, etc.) as well." The Associate Vice President for Student Life must be notified by faculty, staff, or students of any instance where a student demonstrates disruptive behaviour. The next step is to have the Orwellian named Behavioural Assessment Team (BAT) spring into action - the consequence to the student may be the university’s favorite big stick - expulsion.

The University of Minnesota Duluth claims in a direction to faculty and staff that "Disruptive, disrespectful, and even violent student behaviour has become a national trend at universities." That is surprising only if one does not consider what the University’s baby sitters describe as "disruptive behaviour". The directive states that "Students are responsible for conducting themselves in a manner that is respectful of the instructor and other students in the classroom, is civil in language, tone and behaviour, and is receptive to ideas and other points of view." In other words do not disagree too vigorously with your professor and other students. Avoid any sarcasm, hyperbole, irony, overt criticism, etc. If you don’t, your professor is instructed that "it is essential that you take appropriate and immediate steps to curtail this behaviour" So students beware - do not express any strong views and modify your comments so that they fit in with the consensus opinions of your fellow students and professor. As per the old Japanese saying "`the nail that sticks out gets hammered down". 



 



Tuesday, 16 September 2014

MANDATORY REPORTING ABOUT EVERYBODY AND EVERYTHING

In an earlier article I described how citizen spies are increasingly being used by the state to report on the possible wrongdoings of their neighbors. There is another type of spy which is increasingly being used by authorities in the U.S., Canada the UK and Australia. These spies are usually professionals like medical doctors and nurses and they are compelled to report certain types of wrongdoing.

Historically a person in the Anglo jurisdictions did not commit an offence by not reporting a crime. The exception was misprision of felony which was an offence under the common law of England and was classified as a misdemeanour. It consisted of failing to report knowledge of a felony to the appropriate authorities. It has been abolished in England and Wales, in Northern Ireland, in the Republic of Ireland, and in New South Wales. 

The United States still has "misprision of felony" as a federal offence. It provides that "whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both". This offence, however, requires active concealment of a known felony rather than merely failing to report it.
 
Like many legal rights, the right not to report an offence has been eroded since the 1980's. Compulsory reporting is now part of the law in a hodgepodge of ways and in a hodgepodge of jurisdictions, state, provincial and national. Compulsory reporting like all these things started out with the most laudable of intentions. The first area of concern was bringing child abuse to the attention of social workers and police. As usual the U.S. was the source of the movement to expose child abuse. Legislation was passed in most of the American states requiring various persons to report child abuse.
 
Forty-eight American States have legislation designating professions whose members are mandated by law to report child maltreatment. Individuals designated as mandatory reporters typically have frequent contact with children. Compulsory reporting was initially limited to professionals who have frequent conduct with children such as social workers, teachers, principals, and other school personnel and physicians, nurses, and other health-care workers. The list of mandated ‘child abuse’ reporters, however, has gradually expanded. Seven States and the District of Columbia even include animal control or humane officers. Court-appointed special advocates are mandatory reporters in ten States; clergy are mandatory reporters in 27 States and Guam. Eighteen States have made it all really simple; any person who suspects child abuse or neglect is required to report regardless of profession. Upon conviction in Florida a mandated reporter who fails to report can face jail terms ranging from 30 days to 5 years, fines ranging from $300 to $10,000, or both jail terms and fines. 

New Hampshire’s law makes the following long list of people mandatory reporters: "any physician, surgeon, county medical examiner, psychiatrist, resident, intern, dentist, osteopath, optometrist, chiropractor, psychologist, therapist, registered nurse, hospital personnel (engaged in admission, examination, care and treatment of persons), Christian Science practitioner, teacher, school official, school nurse, school counselor, social worker, day care worker, any other child or foster care worker, law enforcement official, priest, minister, or rabbi". It then adds "or any other person having reason to suspect that a child has been abused or neglected".
 
The General Medical Council in the U,K, advise all doctors seeing adults to always be suspicious of child abuse and neglect even if they may never have met the children of those adults. Mr Dickson of the General Medical Council said: "It is important that doctors treating adults are child protection aware. Their responsibility extends to patients they may not have seen. Doctors need to be aware of the environment and individuals who may increase the risk of harm." All doctors have a responsibility to be aware of child protection issues and should report concerns even if they simply have a 'hunch or feel uneasy', says Sir Peter Rubin, chairman of the GMC.

Compulsory reporting is not, however, confined to child abuse. In North Carolina every citizen has a legal duty to report cases where there is suspected child abuse and/or neglect by a parent, guardian, custodian or caretaker; they are also required to report abuse, neglect or exploitation of a disabled or elder adult by their caretaker. Physicians and hospitals in North Carolina must report to law enforcement certain kinds of wounds, injuries or illnesses. School principals must report immediately to law enforcement when he or she has personal or actual knowledge that an act has occurred on school property involving certain offenses. Photo processors or computer technicians are also mandated to report, if within the scope of their employment, they come across images of a minor (or one who reasonably appears to be a minor) engaging in sexual activity.
 
Seniors are a rapidly expanding object of compulsory reporting. S. 7(1) of Alberta’s Protection for Persons in Care Act requires every person who has reasonable ground to believe there is or has been abuse involving an adult who receives care or support services from a hospital or lives in a care facility" to report abuse to a complaints officer, the police, or other authorized person, body or committee authorized to investigate abuse. In Manitoba the Protection for Persons in Care Act (s. 3(1)) requires every person with a reasonable belief that an adult resident, in-patient or person receiving respite care in a health facility is, or is likely to be, abused to promptly report the belief to Protection of Persons in Care Office at Manitoba Health. It is therefore mandatory for all health professionals to report abuse covered by this act.

Ontario’s Long-Term Care Homes Act applies to abuse and neglect of the residents of senior’s facilities. The Act (s. 24(1)) imposes a duty on the general population to report abuse and risk of abuse. Any person must report to the Director (who has been appointed by the Minister of Health) the following; improper or incompetent treatment or care resulting in harm or risk of harm, abuse of a resident by anyone, neglect by the licensee or staff that has resulted in harm or a risk of harm to the resident, unlawful conduct that has resulted in harm or a risk of harm to a resident and misuse or misappropriation of a resident's money. Abuse includes verbal abuse which in turn means "any form of verbal communication of a threatening or intimidating nature or any form of verbal communication of a belittling or degrading nature which diminishes a resident’s sense of well-being, dignity or self-worth".
 
Nova Scotia has taken it all one step further. It has made all of its citizens mandatory reporters of ALL adult abuse and neglect. Section 5(1) of Nova Scotia’s Adult Protection Act (s. 5(1)) requires every person to report abuse and neglect of vulnerable adults. The law states: "Every person who has information, whether or not it is confidential or privileged, indicating that an adult is in need of protection shall report that information to the Minister of Community Services. "Adult in need of protection" means an adult who, in the premises where he resides, (i) is a victim of physical abuse, sexual abuse, mental cruelty or a combination thereof, is incapable of protecting himself therefrom by reason of physical disability or mental infirmity, and refuses, delays or is unable to make provision for his protection therefrom, or (ii) is not receiving adequate care and attention, is incapable of caring adequately for himself by reason of physical disability or mental infirmity, and refuses, delays or is unable to make provision for his adequate care and attention" Individuals who fail to report the information are guilty of an offence and may be fined up to $1,000 or imprisoned for up to one year, or both (ss. 16(1) and 17). The wise, law abiding citizen wishing to avoid a one year jail sentence should be sending daily reports about his neighbors to the Minister of Community Services since they could be victims of mental cruelty (the citizen hears the neighbor’s wife delivering a nasty insult to him) or refuses or delays in making provisions for his protection therefrom (the husband does not report this mental cruelty to authorities) or refuses or delays to make adequate provision for his adequate care and attention (the neighbor is giving himself lung cancer by smoking or heading towards diabetes by over eating).

There is a also panoply of elder abuse legislation and mandatory reporting requirements in the U.S. Under Connecticut law elder abuse includes, but is not limited to, the willful infliction of physical pain, injury or mental anguish, or the willful deprivation by a caretaker of services which are necessary to maintain physical and mental health. Elder abuse also includes neglect, exploitation, and/or abandonment of an elderly (ages 60+) person. The list of mandated reporters is very similar to that for child abuse and neglect including licensed physicians and surgeons and licensed or unlicensed residents and interns, registered and licensed practical nurses, nursing home administrators, nurse’s aides, orderlies, and anyone else paid for providing care in a nursing home, patient advocates, medical examiners, dentists, osteopaths, optometrists, chiropractors, and podiatrists, psychologists and social workers, clergy, police officers, pharmacists and physical therapists. Maryland requires financial institutions to report suspected financial abuse of an elder adult.
 
Bullying is another new and expanding area of mandatory reporting. The Alberta Education Act was revised in 2012 to requires students to "refrain from, report and not tolerate bullying or bullying behaviour directed toward others in the school, whether or not it occurs within the school building, during the school day or by electronic means," In other words students are required to report all alleged bullying by other students whenever and where ever it occurs. Bullying as is usual is defined very broadly to include "demeaning behaviour by an individual where the behaviour is intended to cause harm, fear or distress to one or more other individuals in the school community, including psychological harm or harm to an individual’s reputation."

The Alberta law is particularly notable because it requires students to report cyberbullying if they witness it, with penalties including suspension and expulsion possible for those who do not. It has been pointed out that the Alberta legislation is asking kids to do more than the law requires of Canadian citizens when they witness a crime on the street. The observer (of crime) is not asked to step in and stop it; if anything, police discourage it and recommend that they be called instead. While there might be a civic duty to report crime, there is no legal threat if a person doesn’t do so (subject to being an accessory).  
 
There are numerous "compulsory reporting provisions in the U.S., the U.K. and Canada related to funding of organizations deemed to be "terrorist". A typical provision is a requirement under the Canadian Criminal Code for anyone in Canada and any Canadian outside Canada to disclose to the Royal Canadian Mounted Police and the Canadian Security Intelligence Service the existence of property in their possession or control that they know is owned or controlled by or on behalf of a terrorist or a terrorist group. In the U.K. a mandatory duty has been applied since 2002 on professionals who suspect that money or assets are the proceeds of any crime. The purpose was to combat the phenomenon of ‘money laundering’. Since 2000 a mandatory duty has applied to all citizens to report on the preparations and activities of terrorists. Mandatory reporting is required if a person merely believes or suspects that another person has committed an offence under any of sections 15 to 18, and bases his belief or suspicion on information which comes to his attention in the course of a trade, profession, business or employment.

The Proceeds of Crime Act 2002 has increased the scope of mandatory reporting. It has introduced duties to pass on information about criminal proceeds with the result that professionals may have to report the criminal activities of their clients or third parties. Unlike existing duties to report, the obligations in the Proceeds of Crime Act apply to all criminal offences and therefore represent a significant change in the approach of English criminal law towards mandatory reporting.
 
Terrorism on the road is also a mandatory reporting requirement in the U.K. According to sections 70 and 172 of its Road Traffic Act 1988, a driver or a vehicle owner may commit an offence by not reporting an accident or road traffic offence.

Physicians have a long list of mandatory reporting duties. In Ontario there are eighteen different categories of compulsory reporting that extend far beyond child abuse situations. For example the Highway Traffic Act of Ontario requires that physicians report every individual 16 years of age or over attending upon the physician for medical services, who, in the opinion of the physician is suffering from a condition that may make it dangerous to operate a motor vehicle. Reports must be sent to the Registrar of Motor Vehicles, and include the name and address of the individual, as well as the medical condition that affects their ability to drive.
 
Ontario physicians involved in the care of mentally ill patients who are following community treatment plans, have specific reporting duties under the Mental Health Act, and its regulations. These obligations include providing the police with information pertinent to the community treatment plan. Where a physician issues an order for examination, the physician must ensure that the police have complete and up-to-date contact information of the physician responsible for completing the examination (including name, address and telephone number), and are informed immediately if the patient attends the examination or if the order is revoked for any other reason before it expires.

Every Ontario facility that treats a person for a gunshot wound must disclose to local police services the following: the fact that a person is being treated for a gunshot wound, the person's name, if known, and the name and location of the facility. Ontario’s legislation (which was copying U.S. initiatives) was quickly followed by the Canadian provinces of Saskatchewan, Manitoba, Qu├ębec and Nova Scotia.
 
Ontario physicians are required to tattletale on their patients and fellow doctors if they suspect cheating on the medicare system. When, in the course of professional duties, a physician has reason to believe that a person (either another physician or an individual) or entity has paid or conferred a benefit, or charged or accepted payment of a benefit in exchange for improved access to an insured health service, the physician must report the matter to the General Manager of the Ontario Health Insurance Plan. Under the Health Insurance Act, physicians are required to report instances of health card fraud.

Nova Scotia has a similar long list of mandatory reporting requirements imposed upon its doctors. They go one better with The Personal Health Information Act imposes a duty to report on physicians where there has been a privacy breach. An individual who has custody or control of personal health information about a patient (such as a physician) must notify the patient as soon as possible if the custodian believes that the information is stolen, lost or subject to unauthorized access, use, disclosure, copying or modification; and as a result, there is potential for harm or embarrassment to the individual. Creates a kind of damned if you do, damned if you don’t situation.
 
Mandatory reporting just keeps getting bigger and bigger. There is a problem; let’s pass a law to compel someone to report it. If a doctor already has to deal with 18 different mandatory reporting situations, one more won’t make much difference. So what if the doctor’s major stress point with a patient is no longer diagnosing an illness and developing a successful treatment program but rather is figuring out whether there is a mandatory reporting requirement. The patient on the other hand has to wonder if it is a relationship with a medical caregiver or a deputized cop.

One well meaning law by one well meaning law we are creating a society where everybody is a spy on everybody else. Totalitarian regimes in other times and other places have created spy-on-spy systems in one big swoop; we are doing it with a "thousand cuts".
 


Saturday, 9 August 2014

THE RETURN OF SECRET COURTS

The Star Chamber was an English court of law that sat at the Royal Palace of Westminster from the late 15th century until 1641.   Court sessions were held in secret, with no indictments, and no witnesses.  Evidence was presented in writing.  

The court was set up to ensure the fair enforcement of laws against the English upper class, those so powerful that ordinary courts could never convict them of their crimes.   a court of equity, which could impose punishment for actions which were deemed to be morally reprehensible but were not in violation of the letter of the law. This gave the Star Chamber great flexibility, as it could punish defendants for any action which the court felt should be unlawful, even when in fact it was technically lawful.   Common role of dealing with riots and sedition   by the time of King Charles I, it had become synonymous with misuse and abuse of power by the King and his circle. King James I and his son Charles used the court to examine cases of sedition, which meant that the court could be used to suppress opposition to royal policies. It came to be used to try nobles too powerful to be brought to trial in the lower court.  The Star Chamber quickly gained a notoriety

In 1641, the Long Parliament, led by John Pym and inflamed by the severe treatment of religious dissenters and other abuses abolished the Star Chamber with the Habeas Corpus Act 1640.   After its abolition it became a maxim in the Anglo jurisdictions that legislatures and courts should be open to the public; the very term “Star Chamber” became a negative attached to any court or legislature that was not open. 

One of the defining characteristic of the new unfreedom is that more and more legal processes and legislative activities take place behind closed doors.   In the last couple of decades secret courts have reappeared in the U.K., the U.S. and Canada.  With the passage of the Justice and Security Act "secret courts" (euphemistically called Closed Material Procedures) were introduced into ordinary civil cases in Britain for the first time since the Star Chambers.  Despite vehement opposition, the Act gained Royal Assent on 25th April 2013. It has not yet come into force because the rules of court provided for under the Act have not yet been passed and so, as yet, are not being used. It is only a matter of time, however, before secret courts will be used in civil cases across the United Kingdom.

This legislation allows any civil case in any of the High Court, Court of Appeal, Court of Session or the Supreme Court to be made subject to the Closed Material Procedures if sensitive information is required to be disclosed during it course.  Sensitive material means material the disclosure of which would be damaging to national security.  The result will be a legal proceeding where one party is not able to take part in either a part or the whole of a trial. Furthermore their lawyer cannot be present; neither the party nor their lawyer can see the evidence the government is relying upon (and which is said to be national security sensitive information); they cannot know the government's case or the evidence upon which it is based and consequently cannot challenge this evidence or the government's case.  Finally they cannot know the reasons for the judge's decision based on that evidence.  The civilian will be told whether they have won or lost, but not the facts nor all the reasons upon which the result is based.

The trigger for Closed Material Procedures is national security.  National security, however, can have a very wide ambit.  National security usually means more than just defending the state from the aggressions of other states.  It can concern a wide range of facets including those affecting the non military or economic security of the nation and the values espoused by the national society. In order to possess national security, a nation needs to possess economic security, energy security, environmental security, etc.  Accordingly security can theoretically be at risk not only from threats from another nation-state but also from violent non-state actors, multinational corporations, drug cartels, non-governmental organisations and even natural disasters.

The Investigatory Powers Tribunal (IPT) is a secret tribunal that has been operating in its present form in the U.K. since 2000.   It has exclusive jurisdiction over challenges to the clandestine surveillance programme being carried out by the government.  An application must be made to this secret tribunal to challenge a secret surveillance activity and to request an explanation as to why the government is spying on a British citizen or citizens.

United States has its own secret court, the Foreign Intelligence Surveillance Court (FISC, also called the FISA Court).  It is a federal court which was established and authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against suspected foreign intelligence agents inside the United States by federal law enforcement agencies.  This court is also a "secret court" – its hearings are closed to the public. Usually only government attorneys are permitted to appear before it.  It sits ex parte - in other words, in the absence of anyone but the judge and the government present at the hearings. This, combined with the minimal number of requests that are rejected by the court - the Court's approval rate of application is over 99% - has led experts to characterize it as a rubber stamp.

Canada too has a secret court.  Sessions take place in a secret bunker in Ottawa.  Judges are designated by the Chief Justice of the Federal Court of Canada under the Canadian Security Intelligence Service Act and are empowered to issue secret warrants and to authorize various spy activities including the installation of wiretaps and bugs.  Unlike the Foreign Intelligence Surveillance Court judges can and very occasionally do retain amicus curiae or  "friends of the court" to make submissions in opposition to government requests.

There are other courts and tribunals in Canada which meet in secrecy or partially in secrecy.  Even the Supreme Court of Canada can and does meet in secrecy when dealing with alleged security matters. Portions of the inquiry into the torture of Canadian citizen Maher Arar (2004-06) were conducted in secret by Ontario Associate Chief Justice Dennis O'Connor, while former Supreme Court Judge Frank Iacobucci presided over a completely secret inquiry into Canada's role in the torture of Canadians, Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin.  Even the Competition Tribunal is engaging in judicial secreacy.  It dismissed a complaint from major Canadian retailers about the way credit card companies charge them for processing transactions but said “The reasons are confidential. A public version of the decision [will be released] as soon as possible after a determination as to what information must remain confidential has been made."  

Canadian immigration tribunals can accept and increasingly are accepting secret information that cannot be contested by refugee claimants. Under Section 86 of Canada’s Orwellian Immigration and Refugee Protection Act, the Immigration Minister may, using the exact same procedures of the security certificate, apply to introduce secret allegations.

Canada and the U.S. are contemplating entering into trade agreements which will have as their defining characteristics secret tribunals which neatly override laws passed by elected legislatures. Under Canada’s Foreign Investment Promotion and Protection Agreement (FIPA) foreign companies can bring proceedings in secret tribunals outside of Canada’s court system.  Municipal, provincial, and federal governments could be prevented from enacting strict environmental and health regulations lest they be sued by oversea investors who can claim that the rules have changed and are adversely affecting their investments.  Decisions favouring investors will often be made by three personal tribunals (with members often drawn from international law firms) safeguarded from any annoying public scrutiny.



Wednesday, 25 June 2014

THE FOUR HORSEMEN OF TOTALITARIANISM

THE FOUR HORSEMEN OF TOTALITARIANISM

In the last twenty years there have been a whole set of developments in the Anglo nations (the U.K., Canada, United States, New Zealand and Australia) which adversely or could adversely affect rights and liberties which have been both long held and proudly proclaimed.  These developments include over-criminalization, growth of regulatory mazes, micro-management of interpersonal relationships, invasive surveillance technology, statutory abridgments of civil legal protections, privatized police forces and prisons, new ways to punish people and zero tolerance policies in schools and elsewhere. They occur at various levels and superficially appear unconnected and uncoordinated.   Perhaps for these reasons we have not really grasped the extent to which our freedoms are being eroded. 

We look for snapshots of this dystopia in the works of George Orwell or Franz Kafka.  And so the terms “Orwellian” and “Kafkaesque” are often applied to what we observe in modern society.  certainly there are comparisons to what people experience in dealing with bureaucratic authority to the experiences of Josef K. in the Trial.   There is a Kafkaesque edge to many of the U.S. prosecutions that are reviewed by Harvey Silverglate in Three Felonies a Day: How the Feds Target the Innocent and by Paul Roberts and Lawrence Stratton in The Tyranny of Good Intentions.

In many ways, however, the new totalitarianism is not like the totalitarianism the world has known in the past. It is not as visibly apparent; it has not arrived in one fell swoop.  Most significantly it is not directly experienced by the average person in his or her daily life.  It is almost a reverse lottery where (at the present time) only a small percentage of people like Abner Schoenwetter (six years in a federal prison for importing Honduran lobsters that were packed in plastic rather than cardboard) end up in a nightmarish entanglement with the legal system.

Many people do not see what is happening because it is a velvet totalitarianism and it has been has making an incremental step by step advance over the last thirty years.  There is no one person, no single political group, no secret society designing the new totalitarianism yet it is ever evolving on a number of different fronts.

I identify four horsemen of totalitarianism.  The first horseman is represented by an enormous expansion of the criminal sphere.  All sorts of acts have been partially or fully criminalized.  There are new environmental crimes, new health and safety crimes and a panoply of new crimes in the sphere of interpersonal relationships.  Behaviours, which were not considered criminal, such as youthful exuberance and poor social conduct, are now brought into the criminal net.

The second horseman is surveillance.  The information gathering abilities of the modern state and large private corporations are immense.  It is now recognized that both governments and corporations gather enormous amounts of information on people through their behind-the-scene access to internet activities. There are also many other surveillance instruments including cameras on every street corner, cameras attached to police vehicles, drones in the sky, virtually unrestricted wire tapping and ubiquitous tracking devices.  The modern state is also putting together a citizen spy system - using nurses and doctors, social workers, teachers, tax collectors, etc. to report on individuals who are allegedly engaging in bullying, tax evasion and other unpopular acts.

The third horseman is the assault on those legal protections that developed over the centuries precisely to protect freedoms and civil rights.  These traditional legal rights have had identifying labels such as habeas corpus, rule against double jeopardy, right to remain silent, privilege against self-incrimination, mens rea, open courts, right to legal representation, the demarcation between the civil and the criminal and proof beyond a reasonable doubt.  Governments have used the cover of fighting terrorists and criminal gangs to severely abridge all of these freedom protecting legal doctrines.

A big part of the undermining of civil rights results from the way the modern state grounds down its victims with publicly financed litigation.  The conduct of the civil forfeiture process in British Columbia is illustrative of the state “winning” through relentless litigation.  The government side is not constricted by costs; on the other hand, the forfeiture target will invariably be forced to pay thousands of dollars in legal fees to defend his or her property.  The result is that the forfeiture target more often than not makes the pragmatic choice and gives up.  The B.C. Civil Forfeiture Office is fully aware of its power in this respect and in fact does not hesitate to bring it repeatedly to the attention of the target.

There has been a relentless growth in a new kind of adjudication system - set deeply in the bureaucracy.  An example is Workers Comp tribunals.  These new tribunals have an irresistible proclivity to go private - to become quasi-secret tribunals.  This is often justified for superficially good reasons - preserving privacy of participants.

The fourth horseman is the punishment regime.  Starting in the 1980's the U.S. went crazy with handing out lengthy terms of imprisonment.  Three strikes and you are out and you get twenty year for stealing a loaf of bread.  People receive prison sentences which will lock them up for half their life because they had a few marijuana plants.  

It is not only a matter of imprisonment.  In the U.S. in particular there are numerous collateral consequences which accompany incarceration - civil penalties, which, unlike fines, prison time, or probation, are not specified in the criminal law and are not imposed during the sentencing of the convicted person.  These collateral punishments are frequently post-incarceration.  Then there is civil forfeiture which does not even require a conviction.  Civil forfeiture of a personal residence or an expensive vehicle is an out of proportion fine which for many people is a life disaster - they would rather have spent a few months in prison.  Then there are the other social control punishments - expulsion from a school or university or the loss of a driver’s license.  The Greater State is even re-legitimizing long-term ostracism.

Velvet totalitarianism seems to come together most completely with children and old people.  Under the rubric of safety concerns children are not allowed to play with any form of a ball on a school ground and there are absurdities such as no touch rules for five year olds.  Kids are expelled from school because they draw a picture of a handgun or have a plastic knife in their backpack.  In the U.K. boisterous teenage behaviour is labelled as anti-social.  At the other end of life old people are institutionalized against their will - ostensibly in order to protect them.

The truly worrisome event will be when the Four Horsemen get together. This will happen when the instruments of surveillance - whether it is spy cameras, citizen spies or internet snooping is used in a coordinated manner to keep tabs on all aspects of an individual activities including his or her  interpersonal relationships.  The charges that emerge out of this giant spy system will be dealt with by bureaucrat cum police, bureaucrat, policeman and judge all rolled up into one, 

Does there come a point when the combined effect of the four horsemen of totalitarianism results in a very different type of society?  A New Society that is arriving by stealth.  

Tuesday, 20 May 2014

THE SCHOOL AS A MINI-POLICE STATE

Forty years ago police were almost unknown in Canadian schools and rare in American schools.  In the early 1990s following several high profile shootings police started to be present on a daily basis in American schools located in the poor areas of major cities.  John Paul Jones in Philadelphia was a typical school located in an inner city slum.  It was nicknamed Jones Jail by its students and was typified by metal detectors, barred windows, windows that open only a crack ostensibly to keep objects or people from being thrown out of them and militaristic security staff that roam the hallways demanding documentation from students not in the classroom.

After Columbine the inner city slum model for a school rapidly spread across the U.S.  In the wake of the 1999 shootings at Columbine, high schools in the United States rushed to adopt strict policies and filled the hallways and entrance ways with armed guards, surveillance cameras, metal detectors and drug-sniffing dogs. These are now almost standard features of the modern American school. Yet for all these extreme measures, public fears over student safety remain high.  

The policing of schools was accelerated further by the Sandy Hook tragedy. The NRA had a solution to Sandy Hook - it certainly wasn’t restricting the civilian ownership of military level weaponry.  It was the arming of the other side - armed police officers, security guards and staff members in every American school, including allowing trained teachers and administrators to carry weapons.

This inspired various arming proposals across the country.   For example, rural Northern Colorado's Thompson School District plan was to put reserve deputies in the halls of six elementary schools.  The principal of one of the schools welcomed the development saying that “it is very difficult to go to bed at night if you don't think you've done absolutely everything you can to keep your kids safe, and when Sandy Hook happened and we realized even elementary schools are vulnerable, it was a very difficult time,"  Marlboro Township, a leafy, well-heeled New Jersey suburb was one of the first jurisdictions in the aftermath of Sandy Hook to station a permanent armed cop in each of its nine schools.  Mayor Jonathan Hornik said “With this new evil, you can’t just sit there and hope that it doesn’t happen in your town. We must protect our kids.”  A small school district in rural Arkansas proposed arming the teachers. Clarksville High School, planned to take this step under a state law that allowed licensed, armed security guards on campus. Teachers in the program would, after undergoing 53 hours of training, function as security guards as well as educators. 

Now America’s schools are being redesigned with a single electronically controlled entrance with cameras, metal detectors and invariably a guard.  Back in Marlboro the council is planning to fortify school entrances with steel doors and bulletproof glass and installing surveillance cameras “all over” to feed to the local police department.

In addition to armed guards at the front door the numbers of police assigned to public schools have soared. An estimated one-third of all sheriffs' offices and almost half of all municipal police departments assign nearly 17,000 sworn officers to serve in America’s schools and nearly half of all public schools have assigned police officers.  In the 2008-2009 school year, there were 5,246 law enforcement officers in New York City’s public schools but only 3,152 guidance counselors.  

The nice name for these policemen in the classrooms of America is school resource officers or SRO’s.  One of the primary consequence of the battalion of SROs in America’s schools has been a surge in criminal charges against children for misbehaviour that used to be handled in the principal's office.  As can be expected the very presence of these police officers in the schools results in greater numbers of students being arrested or charged with crimes for nonviolent, childish behaviour.   

In 2010, the police in Texas gave close to 300,000 "Class C misdemeanour" tickets to children as young as six for offences in and out of school.  Misdemeanours include swearing, misbehaving on the school bus, scuffles, truancy and cursing at teachers.  Children have even been arrested for possessing cigarettes, wearing "inappropriate" clothes and being late for school.  The result is that every day hundreds of schoolchildren, who have received Class C tickets. appear before the courts. These charges result in fines, community service and even prison time.  Texas records show more than 1,000 tickets were issued to primary schoolchildren over the past six years.  It has been described as a school-to-prison pipeline" with a high proportion of children who receive tickets being arrested time and again because they are marked out as troublemakers or find their future blighted by a criminal record.

Most schools do not face any serious threat of violence and police officers patrolling the corridors and canteens are largely confronted with little more than boisterous or disrespectful childhood behaviour.  "What we see often is a real overreaction to behaviour that others would generally think of as just childish misbehaviour rather than law breaking," said one observer. Tickets are most frequently issued by school police for "disruption of class", which can mean causing problems during lessons but is also defined as disruptive behaviour within 500ft (150 metres) of school property such as shouting, which is classified as "making an unreasonable noise".

Accompanying the policed school are zero tolerance programs.  Zero tolerance policies lead to the inevitable idiocies.  Several years ago a first grader student in Delaware was suspended from school after bringing a Cub Scout-issued fork-spoon-knife tool into his classroom.  Under the school's zero-tolerance weapons policy, he was suspended for 45 days and forced to attend an alternative school.  Then there was the honors student who spent a night in jail for skipping class and the 9-year-old boy who was suspended for sexual harassment for remarking that his teacher was cute. The charge against Sarah Bustamantes on the police docket was "disrupting class". The crime; she sprayed two bursts of perfume on her neck in class because other children were bullying her with taunts of "you smell".

When her teacher called the policeman, he did not have to come very far since he patrols the corridors of Sarah's school.  That is the thing about zero-tolerance policies.   They do not apply just to deadly weapons and drugs but to fighting, prescription drugs, Scout’s knifes, perfumes, harmless comments and anything else deemed bad in the closed mentality of certain administrators and teachers.  If a student is caught violating these broad rules, there is no discussion and no elaboration  and no investigation. There is just a one-size-fits-all punishment.

The reality is that America’s schools taken as a whole are really not any more violent or dangerous than they were forty years ago.  More than 98% of youth homicides do not occur in schools; in the 2009-2010 school year there was approximately one homicide or suicide of school-age youth at school per 2.7 million students.

America’s school children, however, are being taught a lesson about civil society; namely, that they must accept authority without question and that they have absolutely no rights to question punishment. If a kid wants to participate in an organization they learn that he or she should expect to be drug tested.  Furthermore guards and metal detectors at the “reinforced” entrances, police officers in the hallways every day and omnipresent security cameras including in washrooms are all part of normal life.  Don’t challenge these security features if you want to avoid a police record that will affect you the rest of your life.  In fact don’t do anything including saying anything which someone in authority might consider out of line.

John Whitehead of the Rutherford Institute asks “How do you persuade a nation of relatively freedom-loving individuals to march in lock step with a police state? You start by convincing them that they're in danger, and only the government can protect them. Keep them keyed up with constant danger alerts, and the occasional terrorist incident, whether real or staged. Distract them with wall-to-wall news coverage about sinking ships, disappearing planes and pseudo-celebrities spouting racist diatribes. Use blockbuster movies, reality shows and violent video games to hype them up on military tactics, and then while they're distracted and numb to all that is taking place around them, indoctrinate their young people to your way of thinking, relying primarily on the public schools and popular culture.”

If the schools are going to be mini police states how long is it before the rest of society is going to be restructured along the same lines.  Perhaps not very long.  Government offices are now heavily “fortified” with guards at the entrances, employees (all with identification badges) working in locked rooms and the (greatly feared) public largely excluded.  And like heavily  policed schools nobody really even questions this super-security environment any more.



Wednesday, 26 March 2014

NO TOUCHING POLICIES AND VELVET AUTHORITARIANISM


No tolerance to touching appears to be the latest disciplinary fad infecting school administrators across North America.  

A Milford, Connecticut middle school banned all physical contact between students, including high-fives, handshakes, and hand-holding, in an alleged attempt to cut down on "horseplay”.  This absurdity was implemented after a student was injured in a "groin-kicking" incident but rather than just dealing with the specific incident, brain dead school officials decided that they had to ban ANY and ALL contact between students.  

A middle school in Canada was in the news recently for their "no loving, no shoving" policy, which is intended to prevent violence and sexual contact.  Consequently four middle school students were called down to the principal’s office for the crime of hugging.  The girls, who frquently got in trouble for the dastardly crime of hugging each other pushed back by organizing a “hug-in” protest at the school.

Schools in Arizona, New Jersey and elsewhere have attempted to implement similar no-touch initiatives.  It was noted that the old adage "keep your hands to yourself" - once reserved for school assemblies and cafeterias - has slowly crept its way into hallways, classrooms and playgrounds policies.

At Mornington Peninsula primary school in Australia one parent said her son was winded on the playground yesterday and, when his friend tried to console him by putting his arm around his shoulder, the friend was told his actions were against the rules.  The friend then had to walk around with the teacher on playground duty for the rest of lunch as punishment.   Another parent said his children were told they could not high-five each other.  "I have a couple of children, and they have been told that if they high-five one another that’s instant detention, and if they do it three times they will be expelled," John said.  "I mean, what are they actually trying to teach?"  One child was reportedly told that if students wanted to high-five, it would have to be an "air high-five".

The no touch policy reached its pathological extreme when school administrators at Coghlan Fundamental Elementary School in Aldergrove, British Columbia banned kindergarten students from touching each other during recess.  Students were sent home with a letter on November 1, 2013 advising parents of the new hands-off rule which prohibits games such as tag, holding hands and imaginary Star Wars light saber duels.  Yes even imaginary fighting games (not involving any physical contact) were now punishable by trips to the office and the missing of playtime.

Parent Julia Chen said "I can’t imagine little kids not being able to hug each other or help each other on the playground.  Not tag, no hugging, no touching at all."  The school said it would have a zero-tolerance policy when it came to the no-touching policy and children who break the rule will miss playtime or be sent to the office.

These bizarre rules are often justified as a safety measure.  Principal Judy Beckworth of the Australian school said it was "not actually a policy, it’s a practice that we’ve adopted in the short-term as a no-contact games week".  She said the new practice was introduced yesterday after students suffered a number of injuries on the playground in recent weeks, and the new no-touching rule was only due to last for one week.

"Now it's almost as if it's a sanitized school," said one parent about no touch rules. "Where you have to keep your distance from everybody? And that's not what school is about." It's not what life is about, either. The more we "protect" children with asinine rules like this, the more confused we make them about their own right to space, privacy, and their bodies.  Forcing them to keep their hands to themselves only serves as a means to help the administration keep their heads in the sand.”

Traumatizing five year old over touching each other?  What a gold plated way to cause long term psychological damage to little kids and to think we actually pay one hundred thousand dollar plus salaries to school principals to come up with these kinds of absurdities.

There is a recognized psychological disease known as haphephobia. The (4th Ed.) of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association describes haphephobia, or the fear of touch, as “a rare but often devastating phobia. Most people with haphephobia fear being touched by anyone, although some people are afraid only of being touched by those of the opposite gender. Haphephobia is sometimes triggered by sexual assault or another trauma, but more often, it seems to develop without any known cause.   Most people who cannot trace their haphephobia to a specific event develop the fear in early childhood, although it can occur at any time. The fear is highly unusual in that it is not particularly linked to other fears such as social phobia or fears of vulnerability or intimacy. Many people with haphephobia are able to form warm, tight bonds with other people, although they may worry that those bonds are at risk due to their inability to show physical affection.”

It goes on to say “The need for touch and human contact is innate, and the inability to enjoy that contact can cause feelings of isolation and loneliness. Haphephobia is extremely difficult for most people to understand, and the rejection of touch may be interpreted as a rejection of the person offering the touch.”

Lawrence Cohen and Anthony DeBenedet in “The Problem with 'No Hug' Policies in School” note that Anthony Pellegrini, a professor of psychology at the University of Minnesota who studies recess and rough-and-tumble play, has found that children can tell play fighting from real fighting much better than adults. They comments “Yet adults continue to believe that they are protecting children when they ban roughhousing. No-touch policies in elementary schools are motivated more by safety than worries about sexual contact, but in reality, safety is sometimes a code word to disguise schools’ burning desire for order.”

There is another aspect about no touch rules.  It puts holding hands  on par with a full scale physical assault? Perhaps school administrators in Canada, the U.S. and Australia are inspired by the U.K. which has become the World’s model for a new type of totalitarian state where “crimes” ranging from putting a poster on a telephone pole to robbing a bank are all lumped together under the rubric “anti-social behavior”.  It is part of the very disturbing trend to criminalize a whole range of normal, innocent behavior.

Orwell’s vision of a totalitarian society was based on what he saw happening in Germany and the Soviet Union during the 1930's but the totalitarian society that is evolving in the former heartlands of democracy and personal freedom is very much different.  It is characterized by the mentality of a no tolerance policy about five year olds touching each other.  It may be motivated by the best of intentions and it may not seem on par with the physical cruelty that children experienced in the orphanages and residential schools of past years. But it is alarming when school authorities think it is appropriate to put young children into this kind of physical and mental straight jacket.  In some respects it is a measure of control that would not even have been seen in the dystopian society contemplated by Orwell.

Constraining the freedom of individuals - start with constraining the freedom of children.  Children are a prime object of the social policers whether they are drafting draconic anti-bullying policies,  banning books, legislating ASBOS and IPNAS or enforcing student codes of conduct. Starting in the kindergartens teach them to accept a controlled social environment!

What if parents resist no touching and other anti-children rules?  There is a suggestion from Scotland that the state has a new remedy up its sleeve.  It is the Children and Young People Act which was passed by the Scottish parliament on .  Now every child in Scotland, from birth until the age of 18, will have a specific state-appointed ‘guardian’ to safeguard their interests and oversee their safety. Until school age this person might be a health visitor or midwife; upon attaining school age the role will be assumed by a school teacher. This person will have a “duty” and responsibility to act as the child’s guardian and to have legal authority to access information from the police, the local council, the National Health Service and other government agencies.



Monday, 17 March 2014

DON"T HURT MY FEELINGS. HOW THE EMERGING DOCTRINE OF INOFFENSIVENESS ENDS FREE SPEECH.

When you protect people from having their feelings hurt, you must necessarily end freedom of speech. Anything and everything can be punished.

North American universities have become famous for their all-inclusive speech codes.  Drexel University's harassment policy banned "inconsiderate jokes" and "inappropriately directed laughter."   Johns Hopkins University prohibits any “rude, disrespectful behavior”.  At Colorado State you are not allowed to tell a joke that makes fun of someone for some reason such as an inability to spell.  University of Connecticut also outlawed “inappropriately directed laughter” and adds a ban on “conspicuous exclusion of students from conversation”. At Tufts University a student newspaper was found guilty of harassment in 2007 for printing violent passages from the Quran and facts about the status of women in Saudi Arabia.   Northeastern University did all the other speech codes one better by prohibiting sending any e-mail message “which in the sole judgment of the University is offensive”.

In other words the “right not to be offended” has increasingly made vigorous debate practically impossible. It is no longer permitted to say anything meaningful since someone or some group may take offence or claim victim status.  If someone’s feelings can be hurt by something that is said, a campus equity office comes to the fore, armed with the right to force sensitivity training on the speaker backed up by the right to suspend or expel anyone who resists being sent to reeducation camp.

The mentality of the university is spreading into the public realm.  Take Nova Scotia’s Cyber-safety Act.  It defines cyberbullying as any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social net-works, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably [to] be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way“.

Cyberbullying at its broadest reach thusly “means any electronic communication ... that ... ought reasonably [to] be expected to cause ..... distress or other damage or harm to another person’s .... emotional well-being, self-esteem or reputation.”  It could cover a phone call - even a phone call initiated by a so-called victim.  For example you receive an unsolicited phone call from a Christian evangelist.  You react by harshly criticizing religion and denying the existence of God.  You say that Jesus Christ never existed or if he did he was a quack.  You state that Christianity is a force of evil.  Or you say all these types of things in an unsolicited call from a Muslim.  You ought reasonably have expected that the expression of your opinion will cause distress to the phone caller’s emotional well-being.  

Similarly virtually any vigorous criticism of a politician or other public figure that is made in an electronic communication could reasonably be expected to cause damage or harm to that person’s well-being, self-esteem or reputation.  The application for the protection order concerning such can even be submitted “by telephone or other means of telecommunication, by a lawyer, a police officer or a person designated by the regulations for this purpose, with the applicant’s consent”.

Self designated moral guardians are already zealously policing public space and debate forcing targets to back down or apologize for offending communications.  Often it is a handful of individuals who initiate the policing.  For example in 2004, the UK Office of Communications (Ofcom) upheld the complaints of three people who had taken offence to Somerfield supermarket’s advert for a meat dish which included the use of the word ‘faggot’, on the grounds that the word is also derogatory slang for a homosexual.  The English online publication “Spiked” recently reported on a similar row over a West Midlands pub selling something called ‘The Michael Barrymore Pie: Faggots Swimming in Gravy”. 

It is a new form of minority censorship where each citizen is deputized as a gatekeeper of inoffensiveness. Every individual is turned into a potential citizen spy.  The online English publication, Spike reported about a couple of police officers who complained about an advertisement for a Wearside law firm. “The promotional poster advertised the fact that everyone who is taken to a police station is entitled to free legal advice. It was placed opposite the main police station in Sunderland and showed an attractive woman dressed as a sexy policewoman waving handcuffs under the words: ‘It’s a fair cop! (but it might not be)….so let [our solicitors] advise, assist and defend you.’ Following the police officers’ complaints the advertisement was promptly quashed.

In a culture of inoffensiveness, the idea that ‘You can’t say something that might hurt someone’s feelings, results in a censorship by a small number of people claiming to have felt offended.  As stated by Alex Hochuli in Spiked “Once society accepts that it is legitimate to protect individuals or groups from the subjective category of ‘offensive’ speech or expression, then that gives carte blanche to individuals everywhere to demand the removal of things they don’t like.”  Hochuli correctly notes “The consequence is an unmistakable narrowing of what is acceptable and unacceptable speech, and the spread of both formal and informal speech codes.”  People will avoid saying anything that could possibly be taken as offensive by anybody.  They will self censor their humour, their controversial statements, their hearty opinions.  Free speech is at an end.

Monday, 3 February 2014

THE WAR ON YOUTH

Labour in the United Kingdom brought in the widely reviled ASBO (Anti-Social Behaviour Order) and the Conservative-Liberal coalition are trying to do them one better with IPNA which stands for Injunction to Prevent Nuisance and Annoyance.  A review of comments from local UK police forces quickly reveal that the number one target of ASBOS and IPNAS are youth. As Guardian writer Janet Street-Porter wrote “Have you noticed how the hackneyed phrase "antisocial behaviour" is generally in the same sentence as teenager?

What is driving this Anti Youth mentality?  According to psychologist and TV presenter Tanya Byron adults in the U.K.are suffering from ephebiphobia - fear of young people.  There have been a number of studies which support this.

One study compared the views of 185 teenagers (aged 11-15) at a Greater London comprehensive school in 2006 with those of over 200 adult residents in the same area, in order to establish whether there are significant age-related differences. The questionnaire listed 18 different behaviours (from ‘assaulting a police officer’ to ‘young people hanging around in streets/parks’) and set out a series of vignettes to capture the views of the two groups.

The study revealed  a wide variety of behaviours that adults identified as anti-social including acts ranging serious crimes to everyday activities such as gathering in groups and playing football in the street.  Indeed 40% of adults saw young people’s presence in public places, regardless of their behaviour, as anti-social behavior.  Similarly more than 60% of adults listed cycling or skateboarding on the street as ASB.

The leader of the study, Hulley, noted that the “identification of behaviour as anti-social involved an interpretative process that is not based simply on the behaviour itself but on the age of those involved.”  He further stated “My research confirms that young people are particularly likely to be labelled perpetrators of ASB - especially by adult observers - and are less likely to be recognised as victims of ASB.”

A 200-page report done for The Institute for Public Policy Research in 2006 found that more than 1.5 million Britons thought about moving away from their local area due to young people hanging around.  About 1.7 million admitted to avoiding going out after dark as a direct result of youths gathering.  Britons were also three times more likely to cite young people "hanging around" as a problem than they were to complain about noisy neighbours.

A recent Best Value User satisfaction survey (Department for Communities and Local Government, 2007) found that 57 per cent of respondents reported young people hanging around on the streets as a big or fairly big problem(this percentage was higher compared to otherantisocial behaviours, such as vandalism and littering).  The “children’s tsar”, Sir Aynsley-Green said in a recent speech the “demonisation and lack of empathy for young people is a major issue for England. It causes anger and alienation”. In fact normal youth behaviour, such as gathering in public places and playing ball games, was being demonised, that is, the attitudes about so-called juvenile criminals had become one of the most severe for generations.

Tuesday, 17 December 2013

TOTALITARIANISM ADVANCES IN THE UK

The U.K exemplifies the new kind of totalitarianism taking hold in the West.  New Labour brought in the widely reviled ASBO (Anti-Social Behaviour Order) but the Conservative-Liberal coalition have done them one better with IPNA.  IPNA stands for Injunction to Prevent Nuisance and Annoyance.  Believe it or not, in the U.K, it is possible to obtain an injunction against nuisance and annoyance.

AN IPNA is worse than the ASBO in four different ways: a broader definition; a lower standard of proof; increased sanctions; and increased durations.

Anti-Social Behavior under the new Act is defined as “an engagement or the threat of engaging in "conduct capable of causing nuisance or annoyance to any person" This compares to “behaviour that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as the offender" for a Criminal Behaviour Order.   Underline that it is not just behavior that causes a nuisance or annoyance but also behavior merely capable of causing a nuisance or annoyance.

Is it humanly possible to avoid being the subject of an IPNA? Is there a person alive who has not caused annoyance to another person?  What about the hyper-sensitive individuals who believe that they are being bombarded by various types of “rays”, who demand absolute silence from those around them; who will not broker any disagreement or the slightest disparagement from others?  It has been pointed out that trick-or-treaters on Hallowe’en could certainly be subject to an IPNA and that “even carol singers could be deemed “capable” of causing a nuisance or annoyance to some people.  Many curmudgeonly adults find children very annoying and appropriately IPNA’s can be issued against a kid over the age of ten.  It is obvious that IPNAs will invariably be directed at everyday activities of children such as skateboarding or ball games or street soccer.

Before a court can grant an ASBO it has to be satisfied beyond a reasonable doubt that a person has behaved antisocially and that it is necessary to protect others from further antisocial acts. Under the new legislation the court will have to believe only that "on the balance of probabilities" a person has behaved antisocially and to conclude that it is "just and convenient" to grant an injunction to stop their antisocial behaviour.  The IPNA grants judicial discretion to either prohibit a person from "doing anything" contained in the injunction, or to require a person to "do anything" contained in the injunction.  Thusly, if the police or local council decide "on the balance of probabilities" that a weekly pickup soccer game at a community field is capable of annoying residents, they could stop it by asking the Court to issue an injunction against the players.  The Court would be almost unlimited in setting the terms of the order including forbidding any of the players to ever be present on that field or even to appear in public with a soccer ball.  If subsequently a player over 14and disobeys the minutae of the injunction, he or she could be imprisoned for up to three months.

The police will also have the power to make a dispersal order where there is a presence or behaviour in a locality that has contributed to or is likely to contribute to harassment, alarm or distress or the occurrence of crime or disorder.  These orders can be made merely if there is reasonable grounds for suspicion. 

The IPNA can result in even harsher punishment than an ASBO including up to 2 years imprisonment or an unlimited fine in a contempt of court proceeding. 

While there are some limits on the duration of  an ASBO, the duration of IPNA will be unlimited. Thus a 16 year old could be ordered not to be on a certain street in a town and ten years later the prohibition would still be in place.

It was noted that “Each time successive Governments have amended the ASB regime, the definition of anti-social behaviour has grown wider, the standard of proof has fallen lower and the punishment for breach has toughened. This arms race must end.” 

Monday, 23 September 2013

WHEN JOKING BECOMES A CRIME

Joking around has been outlawed in a number of situations.  Firstly, you do not make jokes about blowing things up as Paul Chambers found out in the UK’s famous Twitter Trial.  When Mr. Chambers was unable to catch an important flight he made the big mistake of twitting “Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together, otherwise I'm blowing the airport sky high!”  This joking threat was made to a small group of friends that followed him on twitter but somehow or other the tweet came into the purview of the authorities.  Consequently Mr. Chambers was prosecuted and convicted pursuant to the Communication Act for "sending a public electronic message that was grossly offensive or of an indecent, obscene or menacing character".  He lost his job and his life was horribly upset even though the conviction was ultimately set aside on appeal.  The absurdity of the whole situation was that it was obviously a joke and that he never planned to blow up the airport, and nobody in authority thought that he planned to blow up the airport.  A joke of this type, however,  is not allowed anymore.

Two British tourists learnt the same lesson when they were barred from entering America after joking on Twitter that they were going to 'destroy America' and 'dig up Marilyn Monroe'. The Department of Homeland Security identified the young man as a potential threat when he posted an excited tweet to his pals about his forthcoming trip to Hollywood which read: 'Free this week, for quick gossip/prep before I go and destroy America?'  He told officials that the term 'destroy' was British slang for 'party', but nevertheless he and his girlfriend were held on suspicion of planning to 'commit crimes' and had their passports confiscated.  In fact, he was handcuffed and kept under armed guard in a cell with Mexican drug dealers for 12 hours after landing in Los Angeles.

The UK’s Equality Act of 2010 put jokes about religion into the no-no category.  A UK lawyer was asked whether a Catholic member of staff would be successful with a complaint he filed about a colleague telling offensive jokes in the office – a few of which referred to the Pope.  The lawyerly answer “While a jovial atmosphere in the workplace helps to create a fun and positive environment, it is important for colleagues taking part to understand that some jokes might be construed as harassment in the eyes of the law.  In the present example, offensive jokes about the Pope could easily amount to harassment under the Equality Act 2010, so you are right to be concerned.”

In France a woman and her brother were convicted for “justifying a crime” after her toddler son, named Jihad, went to preschool in a T-shirt bearing the words “I am a bomb” and “Jihad: Born on Sept. 11.  Bouchra Bagour received a 2,000-euro fine and a one-month suspended prison sentence and her brother, Zayed, received a 4,000-euro fine and two-month suspended sentence. The boy, whose real name is Jihad and whose birthday is Sept. 11, wore the shirt to preschool last year. The family are not Islamic militants - it apparently was intended as a joke.  Bad taste as a joke and in France also very illegal. 

In this age of extreme social correctness interpersonal relationships are fraught with peril.  This starts with anything that can be remotely labeled as sexual.  We can see the broad parameters of this in some excerpts from “Shockwaves: The Global Impact of Sexual Harassment by Susan L. Webb.  Firstly we start with the heading “Sexual Harassment is Conduct of a Sexual Nature that Occurs Because of the Person's Sex”.  She goes on to say “Conduct of a sexual nature includes a range of behaviors or actions, since there is a very wide range of activities which are expressions of sexuality or have sexual connotations in our society.  Therefore, behavior which may appear relatively innocent (such as joking, innuendoes, flirting and asking someone on a date) to behavior which is blatantly illegal (such as forced fondling, attempted or actual rape and sexual assault) can all constitute conduct of a sexual nature.”  

As suggested by the headline in Shockwaves “conduct of a sexual nature” equals sexual harassment.  This was illustrated by Julia Gray, founder of the London branch of US movement Hollaback, which is dedicated to getting rid of street harassment.  She said: "The way we see it is if you want to tackle it you tackle all of it – you say no to all forms of unwanted sexual harassment; that includes wolf-whistling, comments, everything."  Not surprising that a Toronto fireman got fired for this joking tweet "Reject a woman and she will never let it go. One of the many defects of their kind. Also weak arms."

In most cases it is largely the so-called victim who determines whether the conduct is sexual harassment. Per the above “Whether a particular behavior is defined as sexual harassment depends largely on whether the behavior is unwelcome to the target, along with the circumstances surrounding those evens.  Unwelcome behaviors, which are considered sexual harassment, can be of verbal, non-verbal, physical, or visual nature.” This means that a joke told to a room full of a hundred people can constitute sexual harassment to the one person who finds it offensive.

John Yardley, a Conservative councillor in Wolverhampton in the U.K. where he is the Cabinet Member for Neighbourhoods and Safer Communities found out that you no longer about sexual orientation. He was interviewed by police after supposedly making a transexual joke at a meeting. He was chairing a presentation when the police authority worker making the presentation said: ‘Let’s start with an easy question to get us going. Press Button A if you’re male or B if you’re female.’ A member of the audience asked: ‘What if you are transgender?  By answering this question the wrong way John Yardley committed his alleged ‘hate crime’  He responded jokingly: ”You could press A and B together”.   His answer supposedly “hurt” the person who asked the question and who was in fact transgendered.  In this bizarre age full of people quick to claim injury a quick witted, funny answer like that is no longer permitted.  

Totalitarian societies are typically homourless since humour has an invariable in your face, rebellious element.  Humor shows up human foibles.   It has to somewhat outrageous in order to be effective. The “joke police” are out there, however, ready with their dripping sanctimony to apply some pejorative label to humour poking fun at human characteristics.  It has been said very aptly “Without humour, civility cannot flourish. The tendency to label every joke or passing comment we consider to be in poor taste as something more, something sexist, misogynist, or racist is a sign of a New Puritanism taking hold.”  The New Puritanism is a driving force in our developing bureaucratic police state.