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Saturday, 18 August 2012

Why Pussy Riot would have been jailed in Britain


Unless you've been living under a particularly wi-fi resistant rock for the last six months, you've probably heard about Pussy Riot, the trio of Russian punk protesters who pissed off a literal patriarch and were sentenced to (the statutory minimum of) two years for hooliganism yesterday. If you've not heard of them, that last sentence may be of some use.

Commentators from across (almost) the entire western political spectrum have been rightly outraged at this draconian sentencing and lack of due process, with some talking heads going as far as to suggest this is the return of the good old fashioned Stalinist show trial. While it's great to see so many people, particularly on the right, finally take the side of protesters, it's hard not to detect a scent of xenophobia, or even propoganda, wafting from these proud mouthed denunciations of all things Putin, particularly when you remember there is nothing uniquely Russian about locking up protesters. In fact, what Pussy Riot's protest would have been an imprisonable offence right here in the UK. They might even have gotten more time for it.

First, let's take a quick look at what Pussy Riot actually did (if you're familiar with the case, feel free to skip this paragraph. In fact, even if you aren't, do whatever the hell you want. I'm not the boss of you): on February 11th this year, during the run up to the Russian presidential election, members of Pussy Riot and unknown others disrupted a Russian Orthodox service by running in front of the altar and singing an anti-Putin hymn, kicking and punching the air and brandishing instruments. They were dressed in brightly coloured balaclavas, short skirts and neon tights, an ensemble which mightily offended the presiding judge. The song they sang satirised both the church and Putin, and contained lewd and blasphemous lyrics. I strongly approve of this behaviour.

Pussy Riot were found guilty of (roughly translated) “hooliganism motivated by religious hatred”, an offence which carries a maximum sentence of seven years in Russia. Coincidentally, seven years is the maximum you can expect in prison under the UK Racial andReligious Hatred Act of 2006. Could the act have been used to prosecute Pussy Riot had they played their gig in, say, Westminster Abbey? Probably not, partly because (in theory) section 29J of the act exempts “expressions of dislike and ridicule” (though it's hard to know how the difference between dislike and hatred would be assessed in practice) and partly because Britain just don't give as much of a shit about religion as Russia does. Indeed, if Pussy Riot were to storm your average C of E service, I imagine most of the parishioners would be glad of the distraction.

Let's assume, though, that Pussy Riot's hypothetical UK stunt did cause Daily Mail-esque public outrage (if you're having a hard time imagining that, pretend they said bad things about Tom Daley instead of Vladimir Putin) and also that section 29J works in practice. What crimes would Pussy Riot have committed?

A renegade legal system (of which ours is frequently one) could try them on at least two charges: Aggravated Trespass and Violent Disorder. There would also almost certainly be potential for an offence under section five of the public order act, but that doesn't carry a custodial sentence, so I'll leave it to one side for now. If you can think of any other charges an out-of-control judiciary could try them for, let me know in the comments section.

If Pussy Riot had acted in the UK, securing an aggravated trespass conviction would be fairly straightforward. For a start, AT is pretty easy to commit – you just have to be trespassing somewhere (which PR were) and attempting to disrupt alawful activity (again, yeah, pretty much). It is not a defence to say that your actions were part of a protest or otherwise politically motivated – indeed, as members of UK Uncut discovered last year,prosecutors can argue that a political context actually makes things worse. Aggravated Trespass admittedly only carries a three month sentence rather than one of two years, but conviction would be a near certainty: just like in Russia, the case would be heard, decided and sentenced by a single judge acting without a jury. As has happened in a number of sensitive political cases in the UK, a compliant, anti-protester judge can usually be found (in my case, the judge's name was Daphne Wickham, who is notorious for sending activists down and letting coppers off, and plies her dirty trade at Westminster Magistrate's court). The potential for corruption in this judge-no-jury set up should be obvious to all.

If the crown felt like slicing off a slightly more succulent pound of flesh, they could always opt for a Violent Disorder charge. “Don't be silly!” I hear you cry through my computer screen in a way that's frankly creepy “Pussy Riot weren't violent!”. Indeed they weren't, dear readers, but for a violent disorder prosecution to be successful no violence need be inflicted. Therelevant statute reads:

Where 3 or more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, each of the persons using or threatening unlawful violence is guilty of violent disorder.


“But they didn't threaten violence either!” come your ethereal voices once more as the edge of my laptop glows a ghastly red. Didn't they? Those punching and kicking motions certainly SEEMED violent to me, and would doubtless do so to a sufficiently imaginative prosecutor. In fact, now I think of it, couldn't those instruments of theirs be used as weapons (as one pro-Putin blog bizarrely claims)? If this seems fanciful, consider that playing with a beach ball was described as “intimidating” at the UK Uncut trial by prosecution lawyers, who reportedly kept a straight face the entire time.

Lest you think I'm yanking your collective shin, consider further that the state wouldn't need to provide any witnesses to attest they'd felt threatened by Pussy Riot's hypothetical onslaught of music. Yes, their actions need to be likely to cause a person of “reasonable firmness” to fear for their safety, but, in the words of the law:

No person of reasonable firmness need actually be, or be likely to be, present at the scene.


So you and your three friends could kick the shit out of the empty air in a deserted street and, with a sufficiently motivated prosecution, be found guilty of violent disorder. Indeed in practice, such broad wording of the law means that its interpretation is entirely subjective, a situation which results in (to take one example) a man being sentenced to a year in prison for throwing an empty plastic bottle at the Israeli embassy.

So would Pussy Riot have faced jail in England? Probably. If the British public felt the same way as the Russian public do about Pussy Riot, then I think they'd be doing a long stretch. Which is one thing people always forget about the legal system – that it's not only subjective but subject to public opinion. We create the conditions judges judge in –whether those conditions are the mindless, knee-jerk cauldron of public disgust and misunderstanding that informed the UK riot sentences or, well, good ones.

In other words the state can only commit the crimes the public allow it to. So don't. 


You can help Free Pussy Riot here*. 

25 comments:

  1. I think it probably does a lot for your reputation that nobody reads this stuff.

    ReplyDelete
  2. Haha. I thought the same thing 6 months ago when everyone kicked off about it. Oh and dinner is at 6 tomorrow darling...

    ReplyDelete
  3. But in the UK, whilst the idiotic Crown Prosecution Service would have doubtless taken them to court, they would have had David Allen Green to defend them, so they are more likely to have got off.

    I think your hypothesis is correct at least up to the point where the CPS would have tried to prosecute them. And then, as you say, it depends on which reactionary old fart they drag up onto the bench. I am outraged that you did time for pieing, that is ridiculous.

    If it had happened in a C of E church though, Giles Fraser would have defended them (as he did anyway) as being like Jesus overturning the tables of the moneylenders (and he's not the only person to point out that particular parallel).

    ReplyDelete
    Replies
    1. On Twitter in reply to the claim that David Allen Green would have defended them, so they would have won. David Allen Green replied saying "Ha ha - but I think that post (scarily) is essentially correct."

      Delete
  4. Interesting post! I don't want to detract from your main point, but it's maybe worth saying that if they were convicted of violent disorder in the magistrates' court (where their case would be heard either by a single judge, as you describe here, or else by three magistrates) they could only have received a maximum of six months in custody. To get a sentence approaching the one imposed by the Russian court they'd have to be tried by a jury.

    I don't think I agree that they could have been convicted under the Racial and Religious Hatred Act, even leaving aside section 29J. What they did was in a church, but it was plainly a political protest about the government and no court could reasonably conclude that they intended to 'stir up religious hatred' as required for a conviction. The only way the Russian judge managed to make the 'religious hatred' charge stick was by arguing (as reported by Human Rights Watch: http://www.hrw.org/news/2012/08/23/we-were-there-pussy-riot-verdict ) that feminism is fundamentally inimical to the Abrahamic religions — which is not an argument I think an English court would seriously entertain under the 2006 Act.

    ReplyDelete
    Replies
    1. You're right Jamie - I should have made this clearer. It's terrifying that you can get any custodial sentence with only a magistrate presiding, but at least the maximum is 6 months and not longer. Again, though, I think the key point is public opinion, as a jury of 12 good men and true would naturally be drawn from the public. Look, for example, at how the public perception of the police as good guys affected the Simon Harwood verdict. That result aside, it's generally the case that juries are anti-conviction - so it may be that under many circumstances, the state would seek to try a suspect with a magistrate rather than with a jury.

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  5. For realistic sentences, try this link for starters - it'll give you some idea of the charging criteria and the sentences http://www.cps.gov.uk/legal/p_to_r/public_order_offences/

    FWIW, much more likely to be charged at the s4A level. If it WERE to be charged as a s2, then it WOULD go to the Crown Court - any mags court would decline jurisdiction on that one.
    Agree re Agg Trespass though!

    ReplyDelete
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