When Protest Becomes Crime:
Politics and Law in Liberal Democracies

By Carolijn Terwindt
Published by Pluto Books, paperback £27.99

Review by Tim Barton

In liberal democracies there tends to be an assumption, taught as fact at an early age, that a ‘separation of powers’ exists. This separation – between legislature, executive, and judiciary supposedly protects us from abuse of the system. In the UK such separation is formally enshrined yet, in terms of the people involved in each of these branches of the state, the separation seems paper thin. Across all three there exists a fundamentally undemocratic familial relationship between the players: same families, same private schools, same top universities. Our country has elements of functional ‘meritocracy’ but on close inspection it often seems, for most intelligent people of the ‘wrong class’, as if a glass ceiling exists.

As Conrad puts it in Under Western Eyes, we need to analyse ‘the means by which historical autocracy represses ideas, guards its power, and defends its existence.’ In When Protest Becomes Crime Terwindt analyses the methods by which protest becomes criminalised, specifically in relation to biases and pressures in the judiciary that illustrate a dialogue between police, security services, government, law, and the public. Her book takes case studies from Chile, the USA, and Spain, but the kind of analysis she is using is designed to be applicable across ‘liberal democracies’ in general.

In Chile land disputes between native tribes and colonially originated plantation owners have led to protest, both peaceful and violent. The law in Chile has in general heavily favoured the land-owners. Criminalised activism has been treated in court simply in terms of the legality of actions, with a strong preference for ignoring context or motivation: here, because to look at intent is seen as acknowledging the political demands of the activists. Pressure within a conservative colonial establishment has clearly pushed judges to ignore context.

In the USA the ecologically inclined activists have suffered the problem in reverse: although organisations such as Earth First!, Earth Liberation Front and Animal Liberation Front appear to have become less active after the late 1990s (I’d say, in general, since the police repression of the anti-WTO movement in Seattle), from the early 2000s the few prosecutions were cast increasingly in terms of ‘eco-terrorism’. That all three organisations were overtly ‘pacifist’ so far as harm to ‘human and non-human animals’ was concerned, and although sabotaging trucks, spiking trees, releasing laboratory animals, and occasionally using arson and explosives, were extremely careful to ensure no physical harm to people or animals was done. Despite this, and hypocritically, insofar as, say, anti-abortionist activists actually kill people yet aren’t tarred with this brush, environmental activism is often directly equated with ‘terrorism’. The sentencing reflects this view: any crime of which an activist is found guilty has an anti-terrorism bonus extended sentence applied. A number of activists, having harmed no-one, have received up to 20 year sentences, often in high security prisons. Unlike the Chilean examples, this is finessed by bringing the context, motivation, and presumed intent directly into the court.

All hierarchical ‘democracies’ abhor anything that smacks of ‘anarchism’. The state tends to define this purely in terms of nihilism and the seeking of chaos. I have no doubt that their real fear is that the public might sympathise with a true democracy, grassroots, directly participatory, and anti-authoritarian. ‘Liberal democracy’ shows its true spots in such dealings. Also, whilst some nations seek a defence of minorities against ‘majoritarian’ forms of ‘democracy’, in fact most kow-tow to (often highly contentious, as always projected through the lens of elite-owned media) ‘public opinion’. In diverse societies, whether in terms of religion, race, political convictions etc., state apparatus, no matter if majoritarian or hierarchical minority-led, needs to take cognizance of minority views in order to maintain stability.

This is, of course, a balancing act. “If you do not agree with a law, protesting through legal means is allowed, but one must obey the law” – if ‘the law’ deems peaceful protest and NVDA as illegal, the state closes a pressure-release valve. Activists have to then decide when and if ‘extra-legal’ means are necessary and justified. “Criminal laws not only enable penal interventions and the consequent [sic] use of force, but also put the required constraints on the government’s use of force against its citizens”. This bargain requires a depoliticised judiciary, and the more that is under assault the more difficult dissent becomes. As the US cases show, “attempts by protestors to discuss their grievances during criminal proceedings are often blocked”.

In the UK, the relationship between established powers, mediated by heavy-handed policing and politically motivated sentencing, has been historically highly problematic, from the time of King John to contemporary anti-fracking protests. It is clear that in a state where ‘property’ rights outstrip human rights any disruption of ‘business as usual’ is likely to be cast as a ‘clear and present danger’; as the corporate lobby, especially those most linked to industry (monoculture agriculture, and petroleum related ones in particular) bring all their power and influence to bear (much of it ‘behind the scenes’). The recent listing of Extinction Rebellion on ‘terrorism’ lists, as a symptom of radicalisation, was, unlike in the US cases where little press or public sympathy for, say, ALF, exists, quickly rescinded as public scorn exploded in even some tabloids. XR have been far more stringent than most activist groups about their pacifist ethos.

Judicial independence will remain as autonomous as it should be. For XRs sake, and that of the planet, I hope so

In court, a number of judicial rulings have clearly gone against government wishes. This has not been achieved with impunity: as Jeremy Harding describes in the London Review of Books (16 April 2020), judges are allowed to sit on only a few XR prosecutions as they are showing clear sympathies for the defendants – that is to say, presently (and unusually) the context is being taken into account in a positive fashion. Indeed, ecological issues affect us all, even the super-rich.

Undoubtedly, pressure will increase within our own branches of government (including, of course, the ‘fourth estate’, the media) to punish those that seek to interrupt ‘business as usual’ for whatever reason. At the same time, our current PM, whatever doubts we may have about him, is an avowed libertarian, so perhaps for now judicial independence will remain as autonomous as it should be. For XRs sake, and that of the planet, I hope so. Conversely, it is unlikely Johnson will have forgotten his clash with the courts over proroguing Parliament, and over legal attempts to void the referendum result. Terwindt’s case studies offer a great deal of food for thought on how our ‘liberal democracy’ functions – making it well worth reading.

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