Read an Excerpt
UnspeakHow Words Become Weapons, How Weapons Become a Message, and How That Message Becomes Reality
By STEVEN POOLE
GROVE PRESSCopyright © 2006 Steven Poole
All right reserved.
In 2003, an eighty-seven-year-old man from Merseyside, England, was ordered by a court not to make 'sarcastic remarks' to his neighbours. The following year, two teenage brothers were forbidden from uttering the word 'grass'. Then a twenty-seven-year-old Scottish woman was threatened with jail if she was seen by neighbours at her window 'wearing only her undergarments'. What did these prohibitions have in common? They were all examples of a new legal device that sought to repress 'anti-social behaviour'.
Anti-Social Behaviour Orders, which rapidly became known as Asbos, were introduced by Britain's Labour government in the 1998 Crime and Disorder Act. If a person was found by a court to have engaged in 'anti-social behaviour', she could be served with an Asbo prohibiting her for a period of at least two years from engaging in a wide range of activities, not limited to those already indulged in. Subsequently, if she was found to have broken the order, she would face a prison term of up to five years.
In threatening recidivists with a big penal stick, the Asbo was in one way related to the 'three strikes and you're out' legislation enacted in many states of the US since the late 1980s. California has among the harshest such laws: in 2003, the Supreme Court upheld a man's sentence of fifty years to life after his 'third strike' offence, in which he shoplifted some videotapes. But though Asbos threatened much shorter sentences, they were in a sense more radical. The actions they prohibited were not crimes in the first place - otherwise they could have been dealt with in the normal fashion by the criminal law. And yet, if you were found to have committed a forbidden act under an Asbo - an act which was not in itself a crime, such as drawing the curtains while not fully dressed - you would nonetheless become a criminal, by virtue of having breached the Asbo. The government itself seemed confused about this issue, since 'Anti-Social Behaviour' was listed as one of many 'Crime Types' on the Home Office website, even though 'anti-social behaviour' was not itself a crime.
Since people were going to be threatened with long periods of incarceration as a result of committing acts that were not crimes in themselves, it was presumably of the utmost importance to be quite definite about what 'anti-social behaviour' really was. In fact, the government chose the opposite route. Alun Michael, Minister of State at the Home Office, was responsible for steering the legislation through scrutiny by the House of Commons. During questioning by a Commons committee, Michael steadfastly refused to define 'anti-social behaviour'. He rejected proposed amendments that would 'specify the behaviour, or [...] define it as serious, [or] specify that a threshold should be defined'. As eventually passed, the Crime and Disorder Act defined 'anti-social behaviour' only in this way: as behaviour by an individual 'that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself'.
Such vagueness of language was not in itself new. The Public Order Act of 1986 considered a person guilty of 'Harassment, alarm or distress' if he used 'threatening, abusive or insulting words or behaviour, or disorderly behaviour', or displayed 'any writing, sign or other visible representation which is threatening, abusive or insulting', 'within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby'. But the maximum penalty for such an offence under the POA was merely a fine. The Asbo legislation enabled behaviour that might not even constitute an offence under the earlier law to be banned by a court, and if that ban was broken, the subject could spend five years locked up. Moreover, the decision as to whether the subject had been 'anti-social' in the first place, and so the subsequent imposition of an Asbo, depended only on the civil standard of proof (the 'balance of probabilities'), rather than the criminal standard ('beyond a reasonable doubt'). Given that the stakes were so much higher, and the burden of proof so much lower than in normal criminal procedures, the continuing woolliness of definition for Asbos was a much more serious problem.
What particular level of 'harassment, alarm or distress' in the beholder's mind, for example, should trigger the label of 'anti-social behaviour'? The notion that one should be able to go about one's daily life blissfully cocooned from any possible 'harassment, alarm or distress' is evidently silly. You might feel harassed by a customs official insisting on searching your bag, alarmed by the imagery of a heavy-metal T-shirt, or distressed by the way a mother snaps at her child in the supermarket. Nonetheless, you might not think that the law should provide a remedy in such cases. But the threshold at which such feelings become grounds for making a finding of 'anti-social behaviour' remained unclear.
'Anti-social' has two quite different meanings. The first is 'opposed to sociality, averse to society or companionship': thus we might call anti-social someone at a party who refuses to speak to anyone but glowers in a corner, sipping his vodka. The second meaning of 'anti-social' is far wider: 'opposed to the principles on which society is constituted', or 'persons or actions devoid of or antagonistic to normal social instincts or practices'. Early Christians were prosecuted by the Roman Empire on the grounds that their behaviour was anti-social: this was correct, in the sense that they sought to overturn established social practices. From Jesus to Gandhi and Martin Luther King, many people have thought that battling against social norms was the right thing to do. Therefore, to use 'anti-social' as a condemnation requires a further unspoken supposition that what is 'normal' is also desirable. Confusion may arise because 'antisocial' in this second sense often contains a leakage of the first sense, an assumption that if one is opposed to social norms, one must be a personally dislikable character. But, of course, one can be 'anti-social' in the second sense while being gregarious and kind.
With Asbos, the meaning of 'anti-social' clearly leans towards the second definition, either opposed to society as a whole or opposed to certain 'normal' social practices. But a judgement of 'anti-social behaviour' can arise from the perceived harassment, alarm, or distress of, in the language of the Crime and Disorder Act, 'one or more persons' - i.e., possibly only one person. How might it be decided that the feelings of one person were in relevant harmony with those of society as a whole, or that they were perfectly in tune with what was generally considered 'normal'? Might some people not be unusually sensitive or picky about the behaviour of their fellow human beings? Say I think that people who cough and sneeze on public transport without covering their mouth and nose are behaving antisocially, because they spread infection to their fellow passengers by means of airborne mucus. Would I be justified in demanding that Asbos be issued against all such persons? What if I think that it is 'anti-social' to talk loudly on one's mobile phone in a café - is an Asbo the correct approach there? In some cases, furthermore, it might be within the powers of those feeling harassed, alarmed, or distressed to avoid the upsetting stimulus. In the case of the young Scottish woman served with an Asbo for being seen in her underwear, for instance, one might reasonably suggest that her neighbours ought simply to stop peering in at her windows if they don't like what they see.
The 'anti-social' concept is also shaky because it appears to assume only two levels of social organisation: the individual and society as a whole, with nothing in between. Yet what one often finds is a range of smaller social groups, each competing to label the other 'anti-social'. This problem was evident in a 2004 Home Office report, which advised the government against creating a category of 'youth nuisance' under the rubric of 'anti-social behaviour'. What is 'youth nuisance'? It is a general term for teenagers hanging around on street corners. But, as the report pointed out in deadpan style: 'while it is recognised that a group of young people can appear intimidating to members of the public, gathering in a group is not in itself necessarily anti-social'. Boys and girls who seek out each other's company, indeed, are rather obviously being social. Of course, social gatherings can turn into criminal conspiracies, or gang rapes, depending on the subsequent behaviour of the group. Teenagers loitering on street corners might deliberately intimidate other citizens. But then again, they might not. To define their coming together as a group per se as 'anti-social' is nonsensical. Undeterred, however, the British government went on to cite 'youth nuisance' as a problem of 'anti-social behaviour', and constables had the power to 'disperse' groups of youths if they thought their behaviour was 'likely' to alarm passers-by.
Perhaps, though, these quibbles about the vagueness of the term 'anti-social behaviour' were all irrelevant. Alun Michael at one point sought to deflect such annoying questions posed by his fellow MPs, by denying that 'anti-social behaviour' really meant anything at all. 'I was asked whether the terms "anti-social behaviour" added anything to the Bill,' Michael told the committee. 'Legally, it does not, but it is an essential label that sets out clearly and succinctly what the provision is about: preventing anti-social behaviour.' This is a classic example of the logical fallacy of petitio principii, or begging the question. According to Michael, 'anti-social behaviour' in itself meant nothing 'legally', but it served to explain that the point of the law was to prevent 'anti-social behaviour'. But what was this 'anti-social behaviour' that must be prevented, if the term itself had no legal weight? Oops. Let's hurry on. Michael admitted instead that the phrase was merely a 'label': in other words, a catchy phrase of propaganda. To enshrine a legally meaningless PR catchphrase in national legislation might be considered a recipe for confusion and misunderstanding, rather than something that would 'clearly and succinctly' inform the public. So it proved to be.
Understandably, the committee had continued to prod Michael as to what 'anti-social behaviour' might really mean. At one stage he had suggested that it consisted of 'activities that ruin the lives of individuals, families or communities'. However, the ruining of a life may be just as subjective a matter as 'anti-social behaviour'. People sometimes complain that their lives were ruined when they were dumped by a lover. In subsequent years many other glosses of 'anti-social behaviour' were offered, all just as uselessly vague. It was 'unruly behaviour', offered a government review. It was 'thoughtless, inconsiderate or malicious activity', wrote the minister for crime reduction in 2003, neglecting to think that if being 'thoughtless' really were grounds for locking people up, there would have to be an unprecedented expansion of prisons. Perhaps it was better to define what 'anti-social behaviour' wasn't: it was the opposite, according to Tony Blair, of 'proper behaviour'. That cleared everything up.
Back in 1998, in a fit of creativity, Alun Michael had finally come up with the alternative phrase 'sub-criminal behaviour', a novel legal concept. The commission scrutineers were none too impressed. MP Edward Leigh pointed out: 'Behaviour is either criminal, in that it infringes an Act of Parliament and a provision clearly laid down, or it is not. There is no such thing as sub-criminal behaviour; there is behaviour and criminal behaviour.' Michael's response was this: 'Sub-criminal behaviour is behaviour of a level that may be criminal, but to be actually described as such it would have to be proved to be so before a court.' This was a fascinating argument. Normally, the law presumes innocence: to overcome this presumption, it must indeed be 'proved ... before a court' that the accused has committed a crime. But according to Michael, there existed a grey area of 'sub-criminality' whereby people were not presumed innocent just because there was no proof that they were criminals. In attempting thus to water down the long-established tradition of presumption of innocence, it could be said that Michael was acting in a powerfully anti-social manner.
The blatant Unspeak of 'sub-criminal behaviour' burned brightly but briefly: it did not survive in the text of the subsequent Act. But Michael also took a second tack in fielding criticism of his government's legislation: that debates and quibbles about what 'anti-social behaviour' really meant would be proven irrelevant, because the courts would always interpret the legislation in a way that led to reasonable judgements. Let us look, then, at some examples of how the courts did subsequently use Asbos.
In 2004, a thirty-nine-year-old man was convicted for having breached the terms of his Asbo. The order in question had 'prohibited him from entering Birmingham city centre, using or engaging in any threatening, abusive, offensive, intimidating, insulting language or behaviour, or engaging in violence or damage against any person or property within the city centre'. He had been seen on a city-centre closed-circuit television camera, where he 'appeared to be asking for money and acting in [an] aggressive manner when money [was] refused'; he subsequently 'spat in an officer's face when in [the] police station following arrest'. The man was sentenced to forty-five months in prison. Had it been reasonable to ban him from ever going into the centre of Birmingham? Was nearly four years in prison a reasonable punishment for begging, even 'aggressive' begging?
The editor of Criminal Law Week thought not. The length of 'imprisonment for conduct which per se was either not criminal at all or, to the extent that it was criminal, was non-imprisonable, merely serves to highlight the true nature of the anti-social behaviour legislation as a Vagrancy Act for the 21st century,' he wrote. The Vagrancy Act of 1824 had provided for the imprisonment of 'incorrigible rogues', for a period wholly out of proportion to the specific act that had led to their arrests. Similarly with Asbos. American judges, too, had made similar criticisms of long 'three strikes' sentences: 'the triggering offense must, within some degree, be substantial enough to bear the weight of the sentence it elicits.' 'One of the principal abuses' of the Asbo legislation, the Criminal Law Week editor wrote elsewhere, was:
the re-writing of the penalty section of the statute book, so as to convert non-imprisonable behaviour into imprisonable behaviour and to increase the maximum penalties for offences that are imprisonable, but with maximum penalties of less than five years. [...] [T]he prospect reveals itself of the prisons filling up with unlicensed or uninsured drivers, with joyriders, prostitutes, beggars, shoplifters, the drunk and disorderly, and the like - the old 'incorrigible rogues' law, dusted down, given a new name and some 21st century spin.
We should note that the editor writes of the 'abuses' of Asbos. In some cases, Asbos had been used with success to tackle clearly aggressive and violent behaviour, such as intimidation of the elderly on council housing estates, or to keep in check ugly disputes between neighbours. In cases where it could be clearly determined that genuinely high levels of 'harassment, alarm or distress' were being caused, the Asbo might be an effective tool. But detailed independent research on positive Asbo outcomes, and what proportion they made of the total number of orders imposed, was not forthcoming. This was hardly surprising, given that the government's refusal to define 'anti-social behaviour' or 'harassment, alarm or distress' often led the courts to interpret those concepts extremely widely. On the one hand, the issuing courts piled up prohibitions willy-nilly, as with the bans on sarcasm, 'grass', and underwear; on the other, the sentencing courts imposed disproportionate punishments for breaching those prohibitions in relatively trivial ways. This had all been predictable, perhaps, from the deliberate vagueness of the legislation: Asbos positively invited 'abuses' precisely because of the transparently Unspeak way in which they had been defined. Facetious or overly onerous terms in Asbos contributed to the fact that, by summer 2005, 42 per cent of all Asbos were being breached, a figure which cast considerable doubt on the extent of their deterrent power.
Excerpted from Unspeak by STEVEN POOLE Copyright © 2006 by Steven Poole. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.