Sometimes it’s right for the police to examine complainants’ phones. It’s called investigation.

Jeremy Corbyn, Shami Chakrabarti and Harriet Harman all have difficulties with the idea of complainants in rape cases being asked to hand over their mobile phones as part of the police investigation. Mr Corbyn has described it as a “disturbing move.”

It is nothing of the sort.

No change in the law has taken place. Instead, rightly stung by a series of recent cases in which evidence from mobile phones suggesting innocence was withheld from the defence until the last minute, the National Police Chiefs Council and the Crown Prosecution Service have agreed a standard form to give to complainants for use when investigating sexual offences.

It deals with those cases – not every case – in which the police believe that a complainant’s mobile phone should be examined as part of an investigation into a sexual offence.

Rape allegations almost always relate to incidents which took place in private. Without any independent witnesses juries can be left trying to decide who is telling the truth based upon little more than whether the complainant or the defendant looked the more plausible or shifty. Since most human beings are hopeless at spotting liars, this is a task fraught with the danger of producing the wrong verdict.

The smart-phone goes some small way towards solving this problem. Amongst the vast quantities of information stored, not just text messages, but photographs, videos, voice recordings, social media conversations and information about locations and timings, there is often material which may be relevant in a rape investigation.

That is why when a man is arrested for rape, seizure of his mobile phone is almost automatic. It will be carefully examined – with particular attention paid to embarrassing pictures and anything touching on his sex life – and it often throws an entirely different light on his account. Sometimes it is damning, sometimes it exonerates him, often it is equivocal.

It is highly invasive of his privacy, but that is in the nature of a criminal investigation. Whilst still innocent in law, a rape suspect loses all his privacy. If the police are doing their job properly, and considering all reasonable lines of inquiry, his home, his body, especially his genitals, and his phone are all searched for evidence. Nobody suggests for a moment that his right to privacy should trump the right of the complainant to have her complaint fully investigated.

She too inevitably surrenders much of her privacy when she makes a complaint. If the allegation she is making is of a recent rape, she too will probably be asked to undergo a forensic medical examination. However sensitively it is done, it is a ghastly process, but often an investigation cannot proceed without it.

Sometimes examination of her phone is equally, or even more, necessary for a fair investigation.

Yet for some reason, to say that the complainant’s phone should be scrutinised is considered by many a heresy: it is “deterring victims from coming forward,” it is exposing victims to a “digital strip search.” As Shami Chakrabarti put it:

Women, who are the overwhelming majority of rape victims, are already discriminated against in judicial system. A trawl through their social media only reinforces the idea they are in the dock.”

Her reference to “the dock” is revealing. The dock is where defendants sit during an English or Welsh criminal trial; it is not where a witness’s evidence is judged. A defendant’s evidence, like that of his accusers, is judged when he is in the witness box. It is the same witness box for both sides (albeit often replaced these days by a video link for complainants in sexual cases). Judges instruct jurors that they should “assess the witnesses for prosecution and defence by exactly the same fair standard.”

Lady Chakrabarti seems to be saying, on the contrary, there should be one standard for the man in the dock, and a different, more forgiving, standard for his accuser. She is happy that the man in the dock should have his phone investigated, yet appalled that the same thing should happen to his accuser. That is not a call for justice but for prejudice.

Most fair-minded people are pleased that we still have a system in which it is permissible for an accused person to say that he is innocent, and that his accuser is a liar; and a system in which the job of the police is – however imperfectly carried out in practice – at least in theory that of an impartial investigator.

Investigation, to coin a phrase, means investigation. It does not mean “believing the victim” and investigating only things that are likely to support her account.

There certainly are serious privacy issues that the police need to bear in mind. It is not all investigations in which mobile phone evidence is needed. There need be, and there is not, any question of a blanket requirement for complainants to surrender their phones.

Nor should there be, and there is not, any question of a complainant’s phone simply being handed over to the defence; all that will be disclosed is material that might legitimately undermine the prosecution case or support that of the defence. If we want rape trials to be fair it is very hard to see what is wrong with that.

 

(This piece originally appeared in the Spectator Coffee House blog on 30th April 2019)

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There are dangerously authoritarian tendencies in green politics

I am not going to criticise Greta Thurnberg but it would be wrong if the climate rebels of Extinction Rebellion and green political theorists were given a free ride because of our admiration for an undeniably impressive 16 year old.

As Extinction Rebellion was making its final preparations for its Easter campaign of civil disobedience, my brother Tom was selected as one of the Green candidates for the Euro elections that may not, but probably will, take place next month. He would make an excellent and hard-working MEP, and after waiting in Cornwall for years for the right wave to come along, a combination of indignation over climate change inaction and the Brexit debacle may now give him an opportunity to surf his way into power.

In the still improbable event that he is elected, I wish him well. As his political career takes off I will be content to be Piers to his Jeremy: an eccentric blogger brother of whom he is always slightly embarrassed.

But although Tom is a liberal and moderate Green candidate there are elements of Green ideology that are anything but. There is an element of illiberalism, fanaticism and authoritarianism that I, at least, find quite terrifying.

Some of them seem to have an instinct to ban views they don’t like. Tom’s fellow Green candidate, who was in fact elected at the last Euro elections, is Molly Scott-Cato. Last week she posted a tweet:

Spain banned Vox. Why don’t we do the same to Batten and Farage? This is what experience of fascism teaches you, just as Germany doesn’t allow referendums In UK, BBC repeats Farage’s incitement to political violence in hourly bulletins #ResistFascism

The Independent piece to which Scott-Cato’s tweet linked was about Vox, a Spanish anti-immigration party.

Spain’s electoral board has banned the party from participating in the only TV debate scheduled for the forthcoming election. We can learn from this in the UK. The usual response of the far right to criticism of their actions or policies is that to deny them a platform is to deny them free speech.

Spain, the article concluded, “had done the right thing by preventing a dangerous far right party from getting a seat at election debates. It’s time we followed their lead.”

It strongly implied that Vox had simply been banned for its right-wing policies, and explicitly argued that we should do the same to UKIP and the Brexit Party, because of Gerard Batten’s support for a candidate who made a ghastly joke about raping Jess Phillips, and because Nigel Farage had spoken of “putting the fear of God” into the mainstream parties.

In fact, as my well-informed brother pointed out, Spain had not actually “banned” Vox at all. It was simply that under the rules it was ineligible to participate in a TV election debate because it had not polled enough votes in the previous election.

In fairness to Ms Scott-Cato, she did eventually explain that despite the apparent meaning of her tweet and the unambiguous argument of the Independent article to which she linked with the hashtag #ResistFascism, she did not in fact mean that UKIP or the Brexit Party should be banned:

“… of course I’m not suggesting banning (should have removed sensationalist headline), but are you convinced that the arena for political debate – on media and elsewhere – is being safely held? I’m not. Threatening political violence is dangerous.”

All this could be written off as just a minor misunderstanding were it not for the fact that some Green theorists and some supporters of Extinction Rebellion seem to have a serious problem with democracy.

The vast majority of protestors who caused disruption in London in the days leading up to Easter were good-natured, non-violent and well-meaning.

One of their main spokesmen in recent days has been Rupert Read. A fluent and persuasive speaker, he has been a Green Party councillor, a Parliamentary candidate, and is one of the Party’s candidates for the East of England constituency in the Euro elections.

Like many of our current rulers he has a degree in PPE from Oxford University; and unlike most of them his was First Class. He now lectures on philosophy at the University of East Anglia, from where he has published lots of books and papers including ‘The New Wittgenstein, a collection of essays that he describes as “epoch-marking.Few of us are in any position to dispute this assessment.

Last August Dr Read announced, along with 56 other “campaigners and thinkers who are led by science,” that he would no longer debate with “those who deny the reality of human-triggered climate change.” The letter was signed by various scientists, academics, journalists, psychotherapists, Green Party activists and a campaigner against Satanic abuse.

One signatory of the letter, also a supporter of Extinction Rebellion, was an education lecturer from the “Centre for Climate Change Education” at Winchester University, Dr Simon Boxley. He is not a member of the Green Party; he is a green Marxist who describes himself as an eco-socialist. He is the author of Lenin’s lessons on schooling for the left in the UK (disappointingly, though predicatably, he reaches the conclusion that “Lenin’s educational offerings are thin”). He has also written an “Ecosocial manifesto” (jointly with Dave Spart Hill, another green Marxist Professor):

We locate the ideational spark of counterhegemonic praxis in opposition to the Radical Right in more or less intersticial resistance at a number of levels. Counter-hegemonic socialist egalitarian ideology in the educational arena operates, as in civil society more broadly, in an often fragmented way and via campaigning foci rather than around an agreed manifesto for Marxist or socialist or ecosocialist education.”

Quite so. I think he means “the students aren’t interested in the Marxism I teach them, but we may be able to get them campaigning if we call it green.”

Somewhat more accessibly Dr Boxley has set out his climate policies:

It is thus imperative to make the connection between opposition to “climate chaos” and neoliberal policies – indeed to the capitalist system itself – unfettered growth and an educational system which feeds, supports and reproduces both the production and consumption side of an unsustainable economic system.”

I have digressed a little. Back to Dr Read and Extinction Rebellion.

His view is that the threat of global warming is so great that “total civilisational transformation” is needed if we are to avoid the complete collapse of civilisation; indeed he thinks it likely that civilisation will in fact collapse, and points to countries such as Yemen and the Congo as examples of countries in which he says climate change has already contributed to its collapse. The same fate certainly awaits us, he says, unless drastic action is taken, and probably even if it is.

Read advises his followers to keep money under their mattresses in anticipation of a banking collapse, and to keep plenty of food stored away. His tone is relentlessly pessimistic.

Appearing on LBC last week he explained to Jacob Rees-Mogg that:

What we’re talking about here is a threat which is on a scale which it seems our democratic system is completely unable to rise to the challenge of and that’s why one of our demands is for citizens assemblies … what we’re saying is, it’s clear now … that we need drastic emissions reductions and we need them fast we calling for there to be citizens assemblies chosen from members of the public … which would decide how we make that fast transition to where we need to go.”

It is a variation on a familiar theme for Dr Read. Speaking at Cambridge University last year, for example, he explained his support for the then largely unknown Extinction Rebellion:

We should rebel: … Look this is an emergency, it is incredibly urgent. It is going to determine our futures. The governments have completely failed us. We should not any longer accept their authority. … I think they’re exactly right.”

We are heading for utter catastrophe, is the message, and to avoid that fate almost anything is acceptable, including, explicitly, “rebellion.” Taken literally he appears to mean that in the pursuit of a climate policy of which he approves we should no longer obey the law, and that we should regard democratically elected governments as illegitimate.

Extinction Rebellion’s website has a similar message:

“… we are calling for a full-scale Rebellion to demand decisive action from governments on climate change and ecological collapse.

Join us as we engage in acts of non-violent civil disobedience against governments in capital cities around the world. This is not a one-off march – we will keep going for as long as we have to, shutting down cities day after day until our demands are met.”

If they mean what they say, and Dr Read appears very earnest, the group intends not just to try to persuade but if necessary to coerce elected governments to adopt its policies. Whether or not it is admirable, “shutting down our cities day after day until our demands are met” is certainly not democratic.

Dr Read, fluent though he is, is rather vague about what exactly should be done about these failed democratic institutions. The only concrete suggestion is the rather bathetic demand for “Citizens Assemblies,” in which “representative” members of the public are selected, are asked to listen to evidence on various issues, and then make recommendations to government.

There may well be something to be said for such assemblies, although for Dr Read their purpose appears to be to recommend not whether but how to make the revolutionary changes that he believes to be essential. A few Citizens Assemblies informing public debate on climate change are hardly a replacement for the “failed” Parliamentary democracy for which Dr Read appears to have such contempt.

What, then, does Dr Read propose should be done if, as seems likely, our democratic institutions do not concede all the demands of the Green Party and Extinction Rebellion?

If, as he says, “our democratic system is unable to rise to the challenge,” and if, as he says, our very existence is threatened, does it follow that we should use non-democratic means?

He thinks that it does, but the crucial question, is what non-democratic means? I’m not sure that we have a clear answer. Read supports “non-violent direct action.” But what if closing down London for a few days doesn’t work? Doesn’t saving civilisation, or even life itself, mean that far more extreme tactics are justified? Are the ends not so important that almost any means are justified? It is a seductive argument but it can take us to some very dark places.

Green politics and philosophy have long contained a streak of authoritarianism. One of the environmentalist theorists greatly admired by Read, William Ophuls, questioned, like Read, whether our existing democratic institutions were equal to the challenge of environmental degradation (although more, as was customary in the late twentieth century, in the context of over-population than climate change). He concluded that they were not:

Liberal democracy as we know it … is doomed by ecological scarcity; we need a completely new political philosophy and set of political institutions. Moreover, it appears that the basic principles of modern industrial civilization are also incompatible with ecological scarcity and that the whole ideology of modernity growing out of the Enlightenment, especially such central tenets as individualism, may no longer be viable.” “… if under conditions of ecological scarcity, individuals rationally pursue their material self-interest unrestrained by a common authority that upholds the common interest, the eventual result is bound to be common environmental ruin. In that case, we must have political institutions that preserve the ecological common good from destruction by unrestrained human acts. The problem that the environmental crisis forces us to confront is, in fact, at the core of political philosophy: how to protect or advance the interests of the collectivity when the individuals who make it up (or enough of them to create a problem) behave (or are impelled to behave) in a selfish, greedy, and quarrelsome fashion. The only solution is a sufficient measure of coercion.”Liberal democracy as we know it — that is, our theory or “paradigm” of politics is doomed by ecological scarcity; we need a completely new political philosophy and set of political institutions. Moreover, it appears that the basic principles of modern industrial civilization are also incompatible with ecological scarcity and that the whole ideology of modernity growing out of the Enlightenment, especially such central tenets as individualism, may no longer be viable.”1

The distinguished economist Robert Heilbroner looked into the future in 1974 and saw looming environmental problems which could not be managed by democratic means:

“… candor compels me to suggest that the passage through the gantlet [sic] ahead may be possible only under governments capable of rallying obedience far more effectively than would be possible in a democratic setting. If the issue for mankind is survival, such governments be unavoidable, even necessary.”

The philosopher and economist Garret Hardin coined the phrase “tragedy of the commons” to explain why a strong central authority was necessary to prevent a growing population consuming all natural resources. What Hardin called the freedom to breed,” for example, was “intolerable” and was bound, in his view, to lead to tragedy. In his 1974 essay The ethics of the lifeboat: the case against helping the poor Harbin argued a neo-Malthusian case for rich countries to adopt “highly restrictive” immigration policies:

Unrestricted immigration … moves people to the food, thus speeding up the destruction of the environment of the rich countries. We can easily understand why poor people should want to make this latter transfer, but why should rich hosts encourage it?”

Instead, Hardin said, rich countries should keep out immigrants, adopting the “ethics of the lifeboat.” The poor huddled masses should be allowed to drown so that the rich might survive in their lifeboats.

The “lifeboat” metaphor is also one that has appealed to Dr Read. He too has spoken of the need for “lifeboats” to save civilisation and has warned of the dangers of too much immigration. Thus in his speech in Cambridge in 2018:

We should be willing to take some climate refugees, potentially in this country it seems to me, after all we’re the cause of a lot of the trouble, we had the industrial revolution first but we literally don’t have the capacity to take very many if it starts to get to the point I’m afraid it is likely likely to get to. … There ought to be lifeboats, it is better for some civilisation to survive than for no civilisation to survive, but what you need to do … is to try to ensure that that any way you go about creating such lifeboats is not so repellent and aggressive and immoral as to be kind of self-undermining that it would be better it hadn’t happened at all.”

Hardin’s and Read’s lifeboat arguments have a great deal in common, although Read doesn’t want his lifeboats to be created in a “repellent and aggressive” way, which will no doubt be a comfort to those left in the water.

To those thinking of giving their support to the Greens or of joining Extinction Rebellion, the time has come to subject their policies to the sort of scrutiny that other political parties expect as a matter of course. An economic policy designed to reduce greenhouse emissions above all other priorities – the “total civilisational transformation” that Dr Read advocates – will not just stop yummy-mummies and daddies driving to school in their SUVs and restricting them to one skiing holiday a year. It will hit the poor hardest, while the very rich will simply leave the country. It is virtually certain to lead to lost jobs, lost tax revenue, a depleted health service and welfare state, increased poverty, increased crime and huge social unrest: in short an economic and political crisis. If any government pursues such policies, those will be consequences that will ensure it loses popular support very quickly. People do not vote for poverty, mass unemployment and economic ruination. It is for that very reason that Green theorists like Ophuls and Heilbroner recognised that revolutionary ecological policies will need to be imposed by (as Heilbroner put it) “governments capable of rallying obedience far more effectively than would be possible in a democratic setting.”

We have plenty of examples from history where undemocratic governments have tried to “rally obedience” in pursuit of a promised land. What often happens is that they are able to rally obedience for a time, but the promised land never materialises. Many eggs are broken but somehow nobody ever makes the omelette.

Of course not all Green politicians or Extinction Rebellion supporters are dangerous extremists. For every eco-leninist Simon Boxley dreaming of an ideational spark of counterhegemonic praxis, there are no doubt hundreds who are thoughtful and moderate, and entirely committed to democracy. But anyone who treasures freedom and liberal democracy ought to be very wary indeed of lending their support to those who speak – quite openly – of no longer accepting the authority of elected governments. We will not save the planet by imposing fanatical solutions by undemocratic methods.

1Ecology and the politics of scarcity revisited: the unravelling of the American Dream William Ophuls & A Stephen Boyan (1992)

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