By Danielle,

Criminal Law's Intervention in Public Space

5/10/2013 DK 0 Comments

Occupy Melbourne, forcible removal by police. Source: Herald Sun
This essay examines two articles, Occupy Policing: A Report into the Effects and Legality of the Eviction of Occupy Melbourne from City Square on 21 October 2011 (hereafter referred to as Occupy Policing; Gonzalez et al. 2012) and Violence and Control in the Night-Time Economy (hereafter referred to as Night-Time Economy; Hobbs et al. 2005) which consider the role of criminal law and its enforcement in public space in terms of the Occupy Melbourne movement and the night-time economy in British cities, respectively. It will explore the arguments made by both articles and critically analyse them in terms of the criminal law's intervention in public space and its perceived implications. This essay will argue that (1) Occupy Policing suggests the need to re-examine the role and excessive power of the criminal law in public space, while failing to provide considerations of the underlying factors shaping the current police stance in public; and (2) Night-Time Economy implies the need for stricter regulations and additional law enforcement in public space, while failing to consider the broader picture and the consequences that may occur.

Excess of Criminal Law's Intervention in Public Space
A qualitative report released by the Occupy Melbourne Legal Support Team (OMLST) provides details of the events that occurred during and surrounding the Occupy Melbourne movement in October 2011 in Melbourne, Australia (Gonzalez et al. 2012). The report takes a realistic and legal approach to the criminal law's intervention in public space; namely, the legality and consequences of the eviction of Occupy Melbourne and the forms and justifications of the policing power exercised during the eviction.
The primary objective of Occupy Melbourne is said to be the transformation of City Square 'into a common space of political demonstration' where discussions and debates could take place, concerning 'the abuses of political and corporate power' and the 'privatisation of public services' in particular (1). On 21 October, 2011, the protesters of Occupy Melbourne were forcibly removed from the City Square by the Victoria police and other highly trained police and private security, despite the 'entirely peaceful' (28) nature of the protest.

According to the report, the city council was dismissive of the movement, failing to recognise the purpose and legal nature of the protest as Lord Mayor Robert Doyle was reported saying the protesters had enough time (a week) to make their point, despite there being no time limit to political demonstrations by law (9). Over 400 police were reportedly involved in the removal of the protesters including the Public Order Response Team officers who are specially trained to handle 'critical incidents' (10). The police were seen with capsicum spray, police horses, and batons and shields (2-3). The report recognises the unfair and unlawful nature of the police power exercised during that day. Under the law, the report argues, the protest itself and the actions of the protesters were entirely legal and no reasoning made by the city council or police was justified. Specifically, the police did not act in accordance with the Charter of Human Rights and Responsibilities 2006 (Vic) which protects the rights of, and allows, individuals to participate in non-violent public assemblies and protests consisting of but not limited to political demonstrations (8).

The report focuses on the facts and merely brushes past the surface of the policing and governing powers surrounding Occupy Melbourne and their implications. Although this report appropriately fits the title of the report, an insight into the political implications may have provided a richer understanding of the events that occurred and the criminal law's intervention in public space. For example, it mentions the political consequences of the forcible removal of Occupy Melbourne; that the protesters and/or observers would be hesitant to participate in future protests due to the fear incited in public by violent and aggressive reactions of the police and state (17). It explains that this form of self-censorship is 'unhealthy for democracy' (17). However, it does not explore the possible reasons why the events unfolded this way on that day; It does not consider other underlying factors contributing to the perhaps purposeful reactions from the city council and its use of criminal law's intervention in public space.
Taking on Foucault's idea of the relationship between power and knowledge, and how the former determines the latter (Stokes 2004), it may be suggested that the power of criminal law was used for social control and to assert the state power. That is, if effective, the forcible removal of the protesters in public view may have a criminalising effect, making the active participation in political debate appear unwelcome, disorderly and illegal, especially if it questions the power relations in our society as did the Occupy Melbourne movement.

On the other hand, there could be an economic and political factor that underlies Melbourne's capitalist society that gave rise to the forcible removal of the protesters or the role of criminal law in general. One can argue, given the purpose of the protest to raise awareness of the unevenly spread wealth in our society, the interests of the rich and powerful were under attack. Based on the Marxist idea that it is the large corporations and businesses whose interests are primarily protected under the law in capitalist societies (Korten 1995), the intervention of the criminal law to silence the protesters may have been a form of capitalist mechanism. Another concern addressed in Occupy Melbourne was the increasing privatisation of public space and services in Melbourne, which was ironically met by the use and help of private security in the eviction of the protest.

Additionally, personal accounts given by the protesters and observers of Occupy Melbourne provided OMLST with a glimpse into the short-term effects of the eviction of the protest, namely, the psychological affects including anxiety, fear and distrust around and of the police and the state, and the doubts as to whether the safety and rights of the citizens are protected by the law enforcers (16). Although qualitative research involving interviews is an effective way of gaining an in-depth understanding of the topic in question (Ezzy 2010), this report provides a relatively small number of quotations and no other evidence to support these personal accounts. In order to strengthen its argument that the abuse of police power and criminal law's intervention in public space is detrimental to democracy and to individuals' willingness to actively participate in political debates, additional methods could have been used; for example, a survey of the public's reactions to the events of Occupy Melbourne.
Whilst the report's reliance on the legal definitions for the basis of its arguments is sufficient, it fails to consider a number of possible economic and political factors contributing to the eviction of the protest.

Lack of Criminal Law's Intervention in Public Space
Contrary to the arguments made in Occupy Policing (Gonzalez et al. 2012), Night-Time Economy (Hobbs et al. 2005) employs quantitative methods and historical and economic accounts to examine the 'night-time economy' and its surrounding criminal factors in British cities. It argues, with supporting statistics, that in the recent post-industrial period many Western cities have become increasingly focused on re-developing into places of consumption, leisure and tourism (89-90). Consequently, the cities' nightlife scene has grown in the last few years, with venues such as bars, clubs and restaurant-bars vastly expanding in numbers (91). This re-developed cities' nightlife provides increased employment opportunities and brings in continuous and large amount of profit (91), and thus appropriately termed 'night-time economy'.

The article argues that with the lively and energetic night-time economy comes the alcohol-related violence, especially in areas where there is a density of licensed premises that are open till early in the morning (96). Statistics and police reports show evidence of the cause-and-effect relationship between alcohol and violence and that the reported alcohol-related violence occurs most often in weekend nights, between young males in bars or on streets. Further, there has been an increase in alcohol-related violence consistent with the increasing number of nighttime venues serving alcohol (96-99).
The article examines the way in which the police is integrated into the regulation of such concern involving violence at night-time in city centres. Statistics show that there has only been a slight increase in the number of police officers available at night, that like most other forms of business or public institution, police work seems to be limited to daytime. Instead, the employment of private security such as bouncers has increased (100-101).

Night-Time Economy offers an abundance of economic factors in and contributing to the night-time economy in British cities, as well as some considerations of political factors. When analysing Night-Time Economy in light of criminal law and political factors, the article resembles Occupy Policing in a way that the capitalist society's mechanism in relation to the criminal law's intervention in public space is apparent. Despite a wealth of evidence showing the positive correlation between the number of night-time venues and alcohol-related violence, the night-time economy has yet to be strictly regulated by law (96-99). In terms of the Marxist ideas as discussed above, one can argue that the lack of regulation is due to the large revenue brought into the cities by these licensed premises, and thus the interests of the city planners and owners of the premises are prioritised, prevailing the issues concerning the safety of the public.

Unlike the concern presented in Occupy Policing that there is an abuse and overuse of criminal law's and state's power in regulating the public space, however, Night-Time Economy offers a different view, that there is perhaps a lack of criminal law's intervention. In light of the Marxist view, the lack of (or mismatched number of) police officers at night-time can be seen as a way of maximising the cities' profit, by saving on the night-shift and overtime payment of many more police officers. Additionally, it seems reasonable to suggest that too much policing at night-time may be detrimental to the night-time economy, as many bar-goers may stray away from city centres due to discomfort caused by the presence of police, and thus reducing the profit of the premises.

Another factor considered in the article is the privatisation of public services, as also was one of the primary concerns in Occupy Melbourne. Just as private security organisations were employed in the eviction of the protest, Night-Time Economy shows a large number of bouncers employed to ensure order and safety around bars compared to the number of police officers (101). The delegation of the state's responsibilities in terms of the criminal law to private commercial security or criminal firms, is problematic as the private security are not subject to the same authority as the police. This can give rise to no real or recognisable effect in successfully reducing the number of alcohol-related violence due to the control powers used by the bouncers which often involve violence (101).

However, as elaborated in Occupy Policing, there may be problems of a different nature arising from an increase in policing in night-time economy, not considered in the article. For example, perhaps the criminal law's intervention in our nightlife may be considered as a regulation of fun and youth lifestyle, and seen as a restriction of freedom, and therefore unwelcome by not only the bar owners but also the general public.
Night-Time Economy effectively considers the economic and political factors surrounding the alcohol-related violence in night-time economy and the (lack of) criminal law's intervention in order to minimise the problem. However, it seems to have been unsuccessful in considering anticipated consequences and implications of an increased intervention of the criminal law in public space.

This essay examined Occupy Policing (Gonzalez et al. 2012) and Night-Time Economy (Hobbs et al. 2005) in terms of the arguments provided in the articles relating to the criminal law's intervention in public space. It argued that Occupy Policing offered thorough explanations of legal definitions and political and psychological consequences arising from the forcible removal of the Occupy Melbourne protesters, but lacked in providing possible political and economic factors underlying the excess of the criminal law's intervention in public space. Night-Time Economy, on the other hand, provided an abundance of economic and political factors contributing to the increasing alcohol-related violence and lack of policing in night-time economy, but lacked considerations of possible consequences of increased intervention of the criminal law in public space.

Ezzy, D. (2010) The Research Process. In W. Maggie (ed.) Social Research Methods. New York: Oxford University Press.
Gonzalez, A. et al. (2012) Occupy Policing: A Report into the Effects and Legality of the Eviction of Occupy Melbourne from City Square on 21 October 2011. p.1-30.
Hobbs, D. et al. (2005) Violence and Control in the Night-Time Economy. European Journal of Crime, Criminal Law and Criminal Justice, 13 (1), p.89-102.
Korten, D. (1995) When Corporations Rule the World. West Hartford: Kumarian Press.
Stokes, P. (2004) Philosophy: 100 Essential Thinkers. Kettering: Index Books.

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