Not Saussure

February 6, 2007

Having a go?

Filed under: civil liberties, Law — notsaussure @ 4:52 pm

Far be it from me to intervene when a government minister is getting a good kicking, as the unfortunate Tony McNulty has been for his performance when Jeremy Vine asked him about what to do if you see an old lady being assaulted in the street — call the police and attempt to take ‘distractive action’, such as jumping up and down, apparently — but I think I’d better, since some people seem to have misunderstood his — admittedly lamentable — performance. Janet Daley, for example, is apparently under the impression that ‘This Government won’t let you take action against criminals,’ but I don’t think this is quite what he meant. Certainly you can legally use reasonable force to defend yourself or another, and a jury decides what’s reasonable given your apprehension, in the heat of the moment, of the circumstances you face.

Mr McNulty’s caution, I think, wasn’t particularly to do with the possible legal consequences you might face so much as the possible physical ones; he might, I suppose, have phrased his advice on the lines of ‘you may, of course, use reasonable force to defend yourself or the old lady but you might also wish to consider whether you may be starting something you can’t finish and, in the event the assailant is on drugs and has a knife, whether you have any dependents and how adequate your life cover may be’.

In the real world, of course, few people would actually need advising what to do — while your physical courage, ability and natural prudence might be issues, I doubt many of us would stop to worry about the legalities of the situation. I certainly didn’t on the one occasion I found myself in such circumstances, when I saw two young men suddenly, and for no apparent reason, rush out of an alleyway and attack a young man, wrestling his to the ground, in broad daylight. Fortunately, and to my considerable relief (since I wasn’t really in the mood for a fight), before I’d made it across the road to help him, one of them produced a badge and started yelling ‘Plain clothes police — you’re under arrest!’ while his colleague handcuffed the man and radioed for backup. But I’m not sure what the effect of a government minister spelling out for us the physical risks might be, nor, actually, am i sure how much a prudent minister would be willing to risk the headlines when someone did follow his advice to use reasonable force to protect someone else and ended up dead.

In his Telegraph article on the programme, Jeremy Vine discusses the travails of various people like Nicholas Tyers and his son, who recently had charges of kidnap brought against them, and dismissed by Hull Crown Court, when they’d carried out what turned out to be a perfectly legal citizen’s arrest on a 12-year-old boy after the window of their chip-shop had been smashed.

Clearly the judge thought the CPS went OTT on this one, but perhaps not so OTT as at first appears. The arrest seems to have taken place the day after the window was smashed, they took the boy back to their chip shop to call the police, as opposed to taking him direct to the police station or detaining him while the police arrived, and, by the judge’s comment that ‘that the “balance of probability” suggested the boy was responsible for breaking the chip shop window’, it’s not wholly clear that he actually did break it.

There was a not dissimilar case in my part of the world a year or so ago, where someone — clearly willing but not too bright — thought he recognised, while driving home from work, two lads aged about 11 or 12 who were playing on some waste-ground near the builders’ yard where he worked as being the same young lads whom his employer had described as having chased off when he spotted them throwing stones at, and smashing, some glass panes in the yard. He accordingly bundled the terrified boys into his car and drove them back to work, only to be told that he’d got the wrong children (he got community service for the kidnapping, which the boys’ parents probably thought was unduly lenient, given their sons had done nothing wrong). And, of course, a public-spirited adult, passing by, might well feel constrained to use reasonable force in what he honestly believed to be the circumstances if he saw an adult bundling protesting children into a car or van.

Again, the law’s quite clear; any member of the public may arrest someone if a crime’s been committed and he has reasonable grounds to believe the chap’s committed it, but for obvious reasons the ACPO guidance (Word doc, p 47) stresses members of the public are discouraged from so doing, partly for their own safety and partly because if a crime hasn’t been committed, or if they haven’t got reasonable grounds for suspecting their chap did it, they’re in danger of both criminal and civil penalties. Quite right, too; I don’t want, when I’m peacefully going about my lawful business, to have to fight off idiots who think I look like someone who tried to break into their car a couple of days ago. In those circumstances, I’m very likely not only to use reasonable force to defend myself but to pursue all manner of civil remedies. And, if I had children, I certainly wouldn’t want complete strangers taking them off heaven knows where if they suspected them of committing an offence; in those circumstances, call the police . They’ll turn up soon enough if you explain you’re detaining the children, and if you’re not sure a jury — whose members doubtless share your (and Tony Blair’s) frustration at reading about children getting away with behaving anti-socially but some of whom may well themselves have children — would agree your grounds for detaining the children are reasonable, maybe you ought to think twice before acting

What puzzles me rather is why people think this is anything new; the leading case on citizen’s arrest is from 1992 (R v Self, where Mr Self was cleared of assault when he defended himself against a misguided citizen’s arrest) and nothing new has happened recently in the way of the law on self-defence. The Tony Martin case merely restated what we knew anyway — that lying in wait for burglars so you can shoot them (which is what the jury, by their verdict, found on the facts he’d done) isn’t reasonable self-defence. John Reid complicated matters last year by telling the public to ‘stop moaning and take action‘ against anti-social behaviour, but surely no one in their right minds takes the Home Secretary seriously when he’s in tabloid mode. Janet Daley, in her article, blames it all on what she calls ‘”Children’s rights” legislation,’ but I don’t see it; the right not to be dragged off the streets by perfect strangers without a very good reason isn’t a particularly new one for either children or adults, and one worth protecting, I’d have thought.

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  1. I caught a ‘snippet’ of the programme you are talking about, last night.

    And, I for one, do not want anybody, absolutely anybody, to drag my daughter off the street, because of something she may or may not have done. I have been teaching her all of her life, to fight, kick, scream and make as much noise as possible if someone tries to pull her into a vehicle, or an alleyway, or anywhere where she is alone and vulnerable.

    Detain her, if you under the assumption that she has committed some dreadful act of anti-social-behaviour i.e. smashing a window … yes detain her, detain her where there are plenty of people about, somewhere public, where other independent eyes can bear witness to your actions.

    I would definitely want to know why/if my daughter thinks that smashing windows because ‘she felt like it’ is a right thing to do … but do not, do not, dont’t you dare, drag her into a van a car or anywhere else.

    What is she supposed to think then, if some ‘other’ person drags her into a van, seemingly on the pretense that she may/may not have done something wrong, if this person’s whole motive is to do ‘wrong’ to her. Is she supposed to think in that split second … ‘Oh crap! What am I supposed to have done?’, only to realise that the person in the van is never going to let her come home?

    Yes, I do believe, to a certain extent, and with your own safety in mind, that ‘direct action’ is something that you should be considering in that ‘split moment’ of seeing something that you think is wrong. Ihave experienced this on different occasions.

    Indirect action, is an option, a ‘distraction’, not to the point of jumping up and down, but shout, cause a fuss, make sure that everyone around you also sees what you are seeing. Most criminals prefer to do their business in private, so make their intentions less private. Even if it is only to shout ‘Oi, you f***er! I am phoning the police!’

    I think the people who were involved in this incident thought they were ‘doing the right thing’. To a point, they were. But for God’s sake, don’t start dragging children off the streets.

    Jesus H Christ, get off my bike!


    Comment by Queen Minx — February 6, 2007 @ 6:24 pm

  2. “The arrest seems to have taken place the day after the window was smashed, they took the boy back to their chip shop to call the police, as opposed to taking him direct to the police station or detaining him while the police arrived”

    Probably because a) they would have assumed like most of us that the police station would be closed and b) if they were not in possession of a mobile telephone, the chip shop was the nearest place they could reach a landline.

    The judge, in my opinion, should be made Lord Chief Justice immediately, in place of the twerp who currently wastes his and our time occupying the position.

    Comment by David Duff — February 6, 2007 @ 8:16 pm

  3. Quite possibly so, but they were fortunate in that judges generally are a lot less liberal about such matters, for the reasons Queen Minx so eloquently expresses.

    They were also certainly fortunate that the judge though that, on the balance of probabilities, the boy was responsible for the broken window. If a civil court took a different view, they might well have been in for a world of very expensive grief.

    Comment by notsaussure — February 6, 2007 @ 8:33 pm

  4. From what I can remember, the adults involved stopped the child, and whether you want to accept it or not, or argue a child’s rights, the adults involved took the child into the van, when he was alone, after recognising him as a ‘window-breaking-culprit’, they questioned the child, who admitted his culpability vis a vis the broken window, and then they took him into the van, to the chippy, to then do whatever they did.

    What adults must understand is, our children have rights!

    How would it be for an adult to be bundled into a van by other adults because they may or may not have done something or other.

    You have already mentioned this in post.

    Adults, simply would not accept it. But, our children, yes our children, are supposed to accept this, simply because they are children??

    I am glad my child has ‘right’s’, it’s been a long time coming.

    The problem that children are facing is, they don’t know exactly what those rights are, or how to execute them in a childish way, that makes an adult understand their child. They are still trying to have a right to be a child, in an adult world.

    Of course. They too, will be adults. I tell my daughter ‘Be a child for as long as you can, because you are an adult the rest of your life’.

    So, yes. As adults, we have to start respecting our children. And, this child, knew enough to realise he had been kiddynapped. He had. He had also broken, or been a part of the ‘gang’ that had broken the window. These are two separate issues. Two wrongs don’t make a right, two wrongs are quite simply two wrongs.

    Don’t take our children’s rights away from them.

    My daughter has a right to be a child, and part of that right, is to be respected, and honoured as a future adult.

    Comment by Queen Minx — February 6, 2007 @ 10:22 pm

  5. Queen Minx seems to be quite confused.

    That child admitted his culpability, he forfeited his right to be respected. It would probably have been more clever to hold him where they were and call the police, but that might not have been possible.

    You also seem to forget that those people did not ask for their window to be broken. The child started it all, and hopefully he will have learned that there can be consequences to his actions.

    Consequences, Minx. Maybe you are not familiar with the concept. Another one which might be unfamiliar to you is that with rights come responsibilities.

    Comment by Pascal — February 7, 2007 @ 12:09 pm

  6. Did he admit his culpability? That seems hard to square with the judge’s statement that ‘on the balance of probabilities’ he’d done it. He may well have been so scared by these chaps dragging him off that he admitted it, but that’s valueless as a confession.

    Comment by notsaussure — February 7, 2007 @ 2:03 pm

  7. “What adults must understand is, our children have rights!”

    I don’t think so, your majesty, although our host will no doubt correct me on the legalities, but philosophically droning, children cannot have rights because they are unable to discharge the responsibilities that go with them. That is why children found guilty of criminal actions are dealt with differently from adults.

    It would be accurate, I think, to say that *parents* have a right to *child protection laws* because they, the parents, then discharge the responsibility of ensuring that their children behave, though it must be admitted, one sees very little evidence to support the theory today! But, hey, what do philosophers know?

    Also, I should beware, if I were you, of insisting that children have rights. There is a growing and powerful army of governmental busybodies likely to intrude into your familial arrangements and accuse you of failing to uphold some rights you never dreamt existed. Just you give your daughter a slap on the back of the hand for picking up a piece of broken glass in the street and see what happens if the wrong person spots you!

    The Law of Unintended Consequences rules OK!

    Comment by David Duff — February 7, 2007 @ 2:09 pm

  8. My child has a right not to be bundled into the back of a van by strangers.

    That’s my point.

    Admitting culpability may result in a loss of respect, it doesn’t mean my child should be bundled into the back of a van, by strangers.

    I am not arguing legalities, I am arguing the right of my daughter not to be bundled into the back of a van by, yes you got it, strangers, regardless of what she may or may not have done.

    This is a mixed message to children, and a wide open door or van, to any paedophile who has discovered that ‘Do you want to come and see some puppies?’ enticement just doesn’t really cut the mustard anymore. So now he/she can use ‘I am dragging this child into my van because he/she has been [insert whatever excuse]’, for the benefit of any onlooker(s) who might think it a tad strange for an adult to be dragging a child into a vehicle. But after hearing the paedophile’s reasons, they can rest their conscience(s) because ‘The little git probably deserves it’.

    I am not arguing legalities, I know very little about them, I am arguing about protecting my daughter. I am a Mother first and foremost, and often make comments when my passion is high and my protective instincts are screaming.

    I repeat, my child has a right not to be bundled into the back of a van by strangers.

    I hope my point has been more understood.


    Comment by Queen Minx — February 8, 2007 @ 10:48 am

  9. “My child has a right not to be bundled into the back of a van by strangers.”

    No! Sorry, *you* have the right not to have your daughter “bundled into the back of a van” but *she* does not. She has no rights except those granted to you to exercise on her behalf.

    Don’t think I fail to understand your motherly instincts which are entirely natural and proper but I warn you, if you start allowing governments to grant rights to children, bypassing their mothers (I won’t even mention thir fathers who seldom get a look in these days), then you open a very wide door which you may come to regret.

    Fighting off paedophiles is a lot easier than fighting off governments and their wretched henchmen!

    Comment by David Duff — February 10, 2007 @ 9:36 pm

  10. ‘Fighting off paedophiles is a lot easier than fighting off governments and their wretched henchmen!’

    Good Grief!

    I don’t think the poor kid who is being dragged into the van by the paedophile would agree with you.

    Children have a right, a basic human right, not to be dragged away from their parents into vans by other adults. It’s irrelevant to me whether this is the law or not. It’s common sense.

    How did you bring your children up?? To tell them it’s okay for adults to drag you into vans, make sure they’re not paedophile’s first??

    With respect, I still think you have missed my point.


    Comment by Queen Minx — February 11, 2007 @ 11:17 am

  11. No, Ma’am, I understand and sympathise with your point, I am merely attempting to put you right on a matter of fact and warn you of dangers of which you have hitherto been unaware.

    As to my own wretched off-spring, I couldn’t even *give* him away to a paedophile!

    Comment by David Duff — February 11, 2007 @ 8:07 pm

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