Skidmore deference purports to be about recognizing expertise, but it operates to confer an advantage on agencies.
A pure bureaucracy, which is what the British criminal justice system has become in all but name, will do almost anything rather than solve the problem with which it is presented. It will invent any number of complex procedures ostensibly meant to solve a problem, but really just designed to keep itself busy. A problem solved, after all, poses a potential threat to a bureaucracy, insofar as it might be used to justify a reduction in its size whenever the next round of budgetary cuts is proposed.
A fine British example of a bureaucracy’s tendency to invent extra procedures rather than find a genuine solution to a problem is the so-called Gang Injunction, a civil disposal of youths who commit crimes of violence while belonging to a gang. Various conditions are imposed on them (such as not entering certain areas or associating with certain people), the violation of which may, in theory, lead to their imprisonment.
A young man named Callander O’Brien was recently made subject to one of these orders, whose conditions included that he did not possess a balaclava-type helmet, did not ride a bicycle in public, did not carry a knife, did not run away from a policeman when told to stop, did not enter the London Borough of Islington, and did not contact or associate with anyone on a list of 59 persons. He was allowed to use only a registered mobile telephone and was to show his social media posts, none of which could incite violence, to the police.
Although only 19 years old, Callander O’Brien already had an extensive criminal record going back four years. He had also been made subject to one of these Gang Injunctions before, whose prohibitions—many similar to those in the subsequent one—he had flouted. For having done so, he was sentenced to an eight-week period of imprisonment in a youth prison, a punishment that was suspended for six months.
The elaborate absurdity of this hardly needs emphasis. If it were not for the injunction, would he be permitted to carry a knife, run away from the police, and incite violence on social media? Will it henceforth be a defence against a charge of inciting violence that the accused did not have an injunction against doing so and therefore thought it was permissible?
The difficulties of enforcing such an injunction are obvious. It is hardly to be expected that a policeman could recognise Callander O’Brien on sight, even if his picture were widely distributed. It would follow that either O’Brien would be able to break the injunction against riding a bicycle in public with impunity, or the police would have to stop a hundred youths on bicycles who might be he, giving rise to complaints of unjustified harassment of many innocent young people by the police. This injustice in turn would raise resentment against the latter and help to justify or explain illegal conduct.
The worst of both worlds is the most likely result: there will be some harassment of youth without any deterrence of O’Brien.
It is unlikely that O’Brien is highly- or well-educated, but it is equally unlikely that he could not figure out a way to obtain and use an unauthorised mobile telephone. In fact, we know that he can do so because he already has done so. As for any serious attempt to check that he had not communicated with one or more of the 59 persons named in the injunction, it would require surveillance of them all, a task simultaneously impossible and oppressively intrusive. Only the bureaucratic mind could concoct a laborious task with this unlikely combination of qualities. Taking it seriously would turn the police into a kind of tin-pot Stasi.
How are the police supposed to enforce the prohibition against owning a balaclava helmet? And is the kind of task that police should fulfil? By comparison with this, an injunction against wearing such a helmet in public would be almost sensible, but to ensure that O’Brien did not possess one (presumably for use at some time in the future once the injunction had lapsed) would require the unlimited right, along Gestapo lines, to enter and search his home. Even in these increasingly authoritarian times, it is unlikely that such powers would ever be exercised, and therefore Callander O’Brien knows perfectly well that, in more than one respect, the injunction against him is a dead letter—and he would know it even if he had not already experienced the lack of consequences for breaking a similar, previous injunction. In effect, though probably ill-educated, he is more intelligent than the entire British legislature, judiciary, and police force put together, and can outwit them easily. Nevertheless, a policewoman recently told the press, either through naivety or typical apparatchik bad faith, that “Gang injunctions are a powerful tool used in our efforts to crack down on gang crime and violence in our communities.”
What accounts for this ridiculous charade that is both ineffectual and totalitarian in its implications? Part of the problem is in the bureaucracy’s need to appear to be doing something without actually doing anything. But there is something deeper: namely a concerted drive, going back decades, to find alternatives to prison at all costs—including the cost of high levels of violent crime, up by nearly a hundred times since 1950.
It is true, of course, that no one wants a society that is peaceful and secure only because of the fear of real punishment, and the fact is that most people refrain from committing crimes for other reasons. We do not rob, steal or assault even when we could get away with it. But what is true of most people is not true of everyone, and people vary in their susceptibility to impulse and temptation. It is the susceptible who have to be deterred and, if necessary, incapacitated. The way the criminal justice system has responded to Callander O’Brien neither prevents him from committing further crimes nor deters anyone like him from following suit.
The police, of course, will be able to claim it as a success, but with successes like this, abject failure itself is glorious triumph. The so-called Gang Injunction is a perfect bureaucratic instrument: it makes work and avoids it at the same time. And it helps to make our society a little more totalitarian.