A while back @MerelyImputed asked me to think about the issue of structural violence and, specifically, whether crimes committed in the name of preventing structural violence against others carry the defence of self defence (the thinking behind which is that if we are allowed to take steps to stop a burglar in our home or a robber in the street, we should be able to take steps to defend people who are at risk as a result of structural violence). He had blogged on the issue of structural violence himself. I should make it clear that Tim doesn’t advocate violence generally or specifically and nor do I. It’s also been years since I either studied or practised any criminal law outside of corporate governance offences. I’m not just talking off the top of my head and I do usually follow current case law but this is outside my usual area.
I agree with Tim that structural violence is a solid concept and that it does take place in the UK. I also agree that the situation is getting worse. The series of measures introduced by the current Government such as benefits uprating, a below inflation increase in the minimum wage, bedroom tax and the treatment of disabled people serve to hurt the most vulnerable in our society. Reforms to education and the NHS stand to hurt even more people and reforms to Legal Aid make it more difficult for people to enforce their rights against the state and against others. Structural violence is about more than just the actions of the State. It’s about how the whole of society and the markets operate in such a way as to keep the rich rich and hurt the poorest. At its worst, it can cause physical harm and kill. People living in poverty live an average of seven years less than people who aren’t and it was recently reported that more people die from conditions related to poverty a year in the USA than from conditions related to both obesity and smoking combined (although the differences between the US and UK healthcare systems mean we might expect a better rate of treatment of illness related to poverty here in the UK).
Examples of private actions which add to the phenomenon of structural violence would include rising energy prices, energy pricing which favours direct debit customers and businesses participating in schemes like Workfare where the “employers” don’t even pay minimum wage (it’s also arguable structural violence occurs when employers don’t pay a living wage). Payday lenders also have a role in structural violence. Anyone who knowingly avoids tax is another part of the problem. Slum landlords can keep people living in dangerous conditions. The list could go on and on.
There are, of course, lawful methods of protesting about and attempting to reduce either the impact of or the existence of structural violence. For example, it’s argued by some that consumers have a degree of power to prevent structural violence. I take this point in some respects. The rise in fair trade goods has helped to improve the lives of some of the poorest people in the world. The public outcry against tax avoidance at least made Starbucks agree to pay more (although they remain the only company to do so as far as I’m aware and were arguably subject to greater market pressures because they don’t have the market dominance of Google or Amazon, despite their size). Similarly, campaigns against Workfare have caused some businesses and charities to withdraw from the scheme. Charities and the people who support them often take specific steps to reduce the impact of structural violence, for example by operating food banks, as well as campaigning for change. Lobbying politicians can sometimes help in relation to specific issues too. The European Commission has been actively soliciting views on pay day lenders with a view to regulating the sector and the UK Government has also been running a consultation (although I’m extremely cynical about this Government’s use of consultations). Some politicians have responded favourably to concerns people have raised about Atos. However, lobbying is open to abuse (as has been amply demonstrated recently) and is most effective on people and organisations who are already heading in vaguely the same direction as the people lobbying them. In each of these cases, though, the change is only one element in the much broader picture of a world where the 1% remains the most powerful group.
So, would the defence of self defence ever be available in the name of preventing structural violence? The concept of structural violence is an important part of anarchist theory. Anarchist theory says crimes in the name of preventing structural violence are acceptable. However, being anarchists, their argument appears to be based on the moral argument that people have the right to use any means they choose to affect political change. That’s not surprising because anarchists don’t recognise the authority of the State in the same way most people do but regardless of what they believe, the State does have authority and the State defines politically motivated violence or the threat of violence for political ends as terrorism. One of the basic foundations of the definition of terrorism should be that it doesn’t matter who your goal appeals to if violence is involved in achieving it. Whether it’s the IRA, pro-lifers, Islamic extremists, environmental activists or anarchists, the law is the same.
The subjects of terrorist attacks often have absolutely no connection to the act which the terrorists are protesting against. In those circumstances, it’s clearly impossible for a defence of self defence to apply, regardless of what their cause is. There are cases where the victims are what the terrorist perceives as an attacker. Well known examples (although unrelated to structural violence) include attacks on staff at family planning clinics in the USA and scientists involved in testing on animals in the UK (likely the US too – I don’t know about that but people in the UK even suffered arson attacks on their homes) who are engaged in the activity which the terrorist believes he needs to stop. There is bound to be little or no appetite on the part of Government and the Courts for giving terrorists a defence against their crimes but as a theoretical point, the questions would be: who must self-defence be defending, how immediate must the threat be and would the criminal act actually be likely to prevent or stop the harm from occurring? To use the defence of self defence there must be a clear connection between the crime and the action defended against in terms of who is being defended and the immediacy of the threat to them. In terms of who is harmed, who causes harm, how and over what period of time, structural violence is too nebulous to be prevented by the actions of one person or a few people. In most cases involving structural violence, the causal link between the people being harmed, the people causing harm, the actions causing harm, the timing of those actions and the harm itself simply isn’t strong enough to justify the use of the defence of self defence.
After the fact, once change has actually occurred, history might judge a terrorist in a different way. It’s hard to get past the cliché “one man’s freedom fighter is another’s terrorist”. I’d be very surprised if someone reading this doesn’t sympathise with some causes and not others, even if they probably condemn terrorist acts – that pretty much sums up the problem. By way of example, there has been much discussion of the suffragettes recently. Although the aim they achieved was enormously important, there’s no denying they committed numerous criminal acts in the course of their campaign. History favours winners so crimes committed by groups like the suffragettes and civil rights activists end up being seen in a more favourable light in the end. Legally speaking though, we always have to assume that if it fits the definition of terrorism it is terrorism. This is particularly true in modern western countries. Poverty literally hurts people but I can’t see anyone convincing a judge that the situation is so extreme that immediate violent action was necessary in a democratic society signed up to international treaties to protect human rights, even if it is a far from perfect society.
It’s also worth stopping to think about vigilantes and militias because they’re relevant to the issue of defence of yourself and others. During an emergency, such as the riots in London and elsewhere in the UK in August 2011, the police may be overwhelmed. They may (as they did then) need to prioritise threats to people over property. None of the vigilantes during the riots has been reported as being charged with an offence but what I don’t know is whether that’s because no offences were committed or because the police/CPS took no action against them. There is a discussion to be had over the place for vigilantes. Generally, they’re seen as a bad thing (and generally militias are associated with American gun enthusiasts ranting about teaching us Brits a lesson back in the day) and they often self-describe themselves as vigilantes, for example the EDL rushed to Woolwich to “defend” Woolwich even though the two killers were both in police custody and there was no known continuing threat to anyone in Woolwich after they were shot by police officers. As it turned out, the EDL’s attempt at “defending” Woolwich became a joke. They were pinned down in a pub and just drank and ranted online and to the cameras but the fact is they called themselves “brave warriors” on Facebook. They were making the case (albeit badly) that their assistance was necessary, that they were the people’s champions.
“Positive” vigilantism does sometimes arise out of structural violence. On an estate whose Council decides to cut lighting on the estate, vigilantes may decide to patrol to protect people on the estate against violent crime. In those circumstances, it’s possible that a vigilante may step in to stop an attack and have the defence of self defence but that’s due to the immediacy of the threat to the victim of the original crime. Structural violence may create dangerous estates but the person who intervenes to prevent a specific attack isn’t actually acting to prevent structural violence.
Moving on from violent crimes, can property offences ever be justified on the ground of self defence? As with violence against people, property crimes are often committed in the name of political causes. I mentioned attacks on abortion clinics and people working for companies involved in animal testing above. Both have involved property offences. Again, the circumstances in which the defence of self defence is available are very limited because the defence is available to prevent a specific harm occurring. That specific harm may arise due to structural violence but it seems to me it would rarely (if ever) be available in the UK in order to prevent structural violence in a broader sense. Say you became aware of a malfunction in machinery causing highly dangerous pollutants to enter the local atmosphere. The people in that area may be the subject of structural violence – as a general rule the richer you are the less likely you are to have anything with the potential to cause serious harm on your doorstep. The vast majority of the time the appropriate response would be to report the problem. There may be very rare cases where literally breaking the machine to stop the pollution is appropriate but it would have to pose a clear, immediate danger to the health of an identifiable group of people. If it’s necessary to damage property to protect people, any causal link to structural violence is likely to be the same as in my vigilantes example above. Without structural violence, maybe the risk of harm wouldn’t have arisen but the steps taken to prevent that harm wouldn’t be intended to prevent structural violence in the broad sense.
Finally, there’s the question of protesting. One of the first things I thought as I read Tim’s post was that legislation on public order offences was deliberately introduced in the knowledge that it would make protest harder and protest is a natural response to the problem of structural violence. The Criminal Justice and Public Order Act 1994 (which was used on the EDL in Woolwich by the way) came in the wake of the poll tax riots and at a time when hunt sab protests were turning ugly. Environmental protesters had literally been dug in round the country trying to prevent the destruction of greenbelt land and protests against nuclear arms and power had been going on for years. That said, the justification given to middle England for provisions on gatherings in the Bill at the time was often raves, which were springing up all over the place. The Bill itself triggered further protests, not just because it affected the right to protest but because it curtailed the right to silence. Anyone reading this will have seen (and quite likely attended) a protest at some point in their lives and we’re in another period of such change that protests are becoming common again. If a protest is unlawful itself, I can’t see how the fact that it is a protest against structural violence would make it any less so. That would defeat the purpose of the legislation (although I’ll happily concede much legislation is badly thought through and poorly drafted, it’s been 20 years since this particular legislation was introduced and I’d expect to have heard about it if such an enormous loophole did exist) and the problems of a causal link and immediacy of harm identified in relation to violent offences and property offences above would apply to illegal gatherings too. Lawful protests can turn sour and the normal rules identified above would apply to violence or threats of violence against people or property during a protest. Self defence can apply to an offence committed at a protest but, again, the circumstances in which it will apply are fairly limited. The most obvious instance would be acting as an immediate response to police brutality but there must be an immediate threat to the person committing the offence or some other identifiable person. A criminal offence committed at a protest in the name of vulnerable people affected by structural violence generally won’t lead to a defence of self defence.
3rd May 2016
In a very interesting development that’s related to the topic of this post, the Italian Court of Appeal has ruled that it’s not a crime to steal “small quantities of food to satisfy a vital need for food”. Apparently the Court said:
“The condition of the defendant and the circumstances in which the seizure of merchandise took place prove that he took possession of that small amount of food in the face of an immediate and essential need for nourishment, acting therefore in a state of necessity”
Although the ruling has no impact in other countries, it must surely be a landmark and, in its way, does give one example in one country of where the answer to Tim’s question can be yes. To defend against starvation caused by extreme poverty, a person in Italy can take food.