Mark Duggan, a lawful death, but was it just?

Justice (Dike, on the left) and Divine Vengean...

Justice (Dike, on the left) and Divine Vengeance (Nemesis, right) are pursuing the criminal murderer. (Photo credit: Wikipedia)

Mark Duggan was a bad man.[1] Although not a martyr[2], did he deserve to be killed? Does anyone deserve to be killed? To deserve to be killed suggests an outcome of a process. The person has done something whereby death is the appropriate or deserved result. In this case, the outcome was a result of a process by an organisation reflecting the community or public interest. As the organisation, and its officers, acted in the public interest, the question of justice has to be considered. In the case of Mr Duggan, we know he was a criminal. He had convictions for various crimes and the police had intelligence that he had just collected gun from a known criminal associate. The police moved to intercept him and he was killed. The coroner ruled his death was lawful. Was it just?

Is lawful the same as just?

At a basic level, the two are the same for a community. The community lives by laws so the first understanding of justice is the lawful. Our first understanding, though, shows us something higher is at work, because we need to be able to judge the laws for their intent and whether they correspond to what is best for a community. Understanding what is best, rather than what works, is a question for political philosophy. Through political philosophy, we know there has to be a standard higher than legality to judge the laws because there can be bad laws. Even though these laws are lawful, they are dangerous or damaging to the community. For example, a law that allows or enforces slavery is not just.

In any society, three types of justice mix: perfect justice, political justice, and natural justice. Perfect justice or the philosopher’s justice is the abstract standard by which all societies are measured. Like the philosopher, perfect justice informs the second type of justice: political justice. Political justice is the politician’s justice, which is society’s best approximation of perfect justice. A democratically elected government, through judicial interpretation and amendment creates political justice, which is enforced through the legal system. Political justice entails political equality that is expressed in the idea of the rule of law. A government enforces the rule of law equally and from the basis of that equality, a decent society is created that expresses our common good. Within a decent society, individuals can use their reason to discover the extent to which perfect justice informs that process. What is created within a decent society is political justice. Political justice, though, is vulnerable to corruption. When politically legitimate authority degrades and no longer has the respect of its people, then natural justice begins to emerge. Natural justice means a natural inequality follows.

Mark Duggan’s death: Natural Justice or Political Justice?

To answer the question we need to look at three interconnected levels: the tactical, the operational, and the strategic. The three levels taken together provide a better understanding of the case than a focus on a level.

The tactical level: who can second-guess a life or death decision?

At the first, tactical, level, there can be no doubt that the killing was justified and lawful. The officers acted in the public interest and believed they were under threat from Mr Duggan. They believed he had a gun and he would shoot them. We cannot second-guess their tactical decision unless we want to speculate that the officers had no intent to arrest or stop him and their sole intent was to kill him with or without a gun. We cannot honestly entertain such an opinion unless we have clear evidence that this was what was intended.[3] To date there has been no evidence to indicate, nor does the sworn testimony of officers indicate, that he was killed for any other reason than as the result of an intense, sudden interaction with split second decisions between life and death. However, that is only one level. The decision to stop Mr Duggan was part of a larger police operation in which he was under surveillance. Armed response units were prepared to confront him, which means there was intent behind the police decision to confront Mr Duggan. What determined that intent? That question moves us beyond the coroner’s inquest. We move to the second level, the operation level, where concerns about justice begin to emerge

The operational level: does the tactical level always express the public interest?

At the operational level, the tension between political justice, the public interest, and natural justice, the personal interest, begins to emerge. Natural justice refers to a state of justice inferior to political justice because the individual uses his natural right to decide what justice is. Hobbes called a “right of nature” (jus naturale)

“the liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own nature.”

By contrast, political justice is measured by something beyond natural justice. It is based on equality, equality before the law that protects and promotes the common good and allows us to live peacefully. Political justice is not the individual or institutional good because government, through the police, maintains public order and political justice for the benefit of all. By contrast, a criminal has to rely on natural justice because they cannot access political justice. They cannot report crimes against their criminal enterprises to the police. To find “justice”, they rely on their own efforts. In that situation they act in their own interests not the community’s interests. The same thing occurs, though, when the police (or any organisation) act beyond or contrary to the public interest. For the police, and the community, the danger is that the police will act beyond political justice, act with natural justice, when enforcing the law. This danger is coeval with the police’s role in upholding or enforcing political justice.

On the surface, we must accept uncritically that the police have an interest in maintaining public order in Tottenham and they act in the public interest when they deal with those who would disturb the public order. The police have a duty, in the public interest, to contain and confront a gang in its criminal activity.[4] Such an analysis leaves us at the tactical level. We need to go beyond that surface understanding to look at the decisions and the intent behind that tactical level. We need to ask whether the police went beyond a defence of the public order, in the public interest, to acting in their organisational interest or a private interest disguised as the public interest. At the operational level, we have to explore whether the police act on their institutional interests, rather than the public interest, in their approach to the gang and Mr Duggan.

The operational level is where the tactical and the strategic level mix so the public need to know that the motives, intent, and outcomes considered by the police served the public interest. The questions in this section are not idle. They have urgency because of the recent report by The Independent concerning operation Tiberius that claimed that criminal families and gangs had penetrated the Metropolitan police force and the wider criminal justice system. The report, based on the police’s own internal report suggests that corrupt officers have been in the pay or under the influence of these criminals. Even though these are historical claims, the report dates from 2002, they force us to look closely at the operational level.

The questions at the heart of the operational level were not explored in the coroner’s inquest because they were outside the terms of reference. The questions help us understand if the police acted with political justice or natural justice. The evidence to answer them is less accessible to the public, which creates the concerns for the community. Why did the police intend to confront Mr Duggan in this way? What was the police relationship with Mr Duggan? Why did that choose that location for a hard stop?

How the police confronted Mr Duggan required an armed response. They created, with or without intent, a situation where Mr Duggan’s death was an increased possibility. They knew when they planned the operation that Mr Duggan would be armed. The police took a risk because they decided that this was the best choice. They did not intercept him at the gun purchase nor did they intercept him immediately after obtaining the gun. If Mr Duggan was considered a low-level intelligence threat[5], yet he was the subject of a hard stop, what changed to transform him from a relatively minor character to the subject of a hard stop? The intelligence indicated he had obtained a weapon, but the decision to put him under surveillance and to prepare a hard stop occurred before he picked up the weapon. The police explained that Mr Duggan was part of the TMD gang, which they had been targeting for several years. However, it is not clear how Mr Duggan fit into that operation. When and how was it decided to confront him? Was Mr Duggan handled differently by the police than other gang members? Was he targeted differently than the known violent criminals? Was the hard stop a way to send a message to the gang and reinforce the police presence within the context of the wider public order issues in Tottenham? What was the expected impact from this stop on the strategic situation? We cannot answer these questions, but we need them answered to know if the public interest was served at the operational level. These questions take us to the third level where the relationship between the police and the community is decided.

Justice is the ordered relationship between the police and community

Bernard Hogan-Howe recognizes there is a problem in the relationship between the police and the community. However, the issue is wider than the relationship with the black community in London. The issue, he must understand, is wider. The Plebgate affair reveals an underlying problem. The problem is not simply the community do not trust or like the police. Instead, the tension is created by the way the police act and the community respond. It is not one sided as the community acts irrationally in the face of lawful police activity nor is it that the police are simply oppressors. What has been missing from most analysis of the Duggan case is an understanding that connects the tactical decisions to the operational decision and on to the wider community relationship. Too often, these are simply compressed into “police-community relations”. This is not to say that police community relations are unimportant or window dressing. On the contrary, they are central to effective policing as the investigation in to the August 2011 riots demonstrated. Instead, we need to see the policing relationship as part of the wider community relationship as an expression of legitimate political order. Where that larger relationship is disordered in many communities, the political legitimacy of the police and their operational legitimacy is called into question. The community may accept the lawfulness of the tactical level because the police are there to protect them as well, but the justice of the operational leads to concerns about the strategic level.[6] We can see there is a disordered relationship because Mr Duggan’s death, no matter how amplified and exaggerated, would not have set off riots in a community where the police and public have a relationship based on justice.[7]

When political justice fails, people are not being treated equally before the law. For example, if the police act unlawfully with impunity or act criminally, they act beyond the law. A police officer and a police force must be accountable before the law in the same way as an individual is accountable. To the extent that they are not equal before the law, the rule of law is weakened. The inequality makes it harder for the individual to access justice. Without access to justice, the citizen’s relationship with society becomes disordered. When the political society is disordered, or corrupt, then the legitimacy of the public order is in question. In an extremely disordered community, natural justice becomes the main alternative and where a society tolerates communities of that nature, such a society can no longer claim to be a decent society.

To people in communities dominated by natural justice, with a weakened politically legitimate authority, the police start to appear as another gang rather than representing a legal or legitimate political justice. If the police are ineffective, then the gangs take control. If the police are too aggressive, then they can appear to be oppressors rather than upholding justice. At the same time, if the police officers betray their oath to the crown, for example, by taking payments from newspapers, working for criminal families or acting arbitrarily in the community, then they become like gangsters. In those cases, the officers do not act for the public interest or the common good and the community suffers as a result because the relationship with the police can be seen as unequal. The community’s access to justice is based on political inequality. As a result, the disordered relationship allows minor criminality to expand as the community reflects the natural justice they are experiencing with the police and the wider political justice system. In a disordered relationship, a community might protect a murderer from the police instead of upholding the rule of law. They would do this because they fear the gangster more than they love justice or because they dislike the police more than they love justice. An extremely disordered community where politically legitimate authority is weakened by corrupt policing and gangsters dominate the community would be described as a no-go zone.

The decline of political legitimacy and the rise of “natural justice”

We can see natural justice at work when crime families or gangs create “order” in communities that fear them. They do not serve the community; the community serves them. When communities do not believe political justice is not accessible to them or they legitimacy of their political or community institutions, like police, schools and politicians, decline, then gangs and criminal families will fill the justice gap. Such areas have been described as no go areas where the police are a presence in name only. In 2011, a UN report concluded that some areas of the UK had become no-go areas for the police and the rule of law.[8] However, even in face of the London riots of 2011, the police leadership and press denounced the UN report. Then in 2012, Dale Cregan ambushed and killed police officers in a grenade and gun attack.[9] The killings showed “natural justice” at work in that community as a gangster targeted the police. He had been able to elude the police manhunt for days because people in the community shielded him.

If policing is not based on a shared concept of justice that can be discovered by reason, then it is reduced to power. If policing becomes “our gang is bigger than your gang”, a justice gap emerges between the community and the police. The community will see the police as pacifying them rather than working with them to create a shared community of justice. Where the police see themselves upholding the law, the community see them enforcing the idea that might makes right. The community see the police dispense their form of “natural justice” under the guise of political justice. In response, the communities begin to believe that when the police shoot someone they dispense a form of “natural justice”. What the police see as a just operation, a disordered community will see as gangsters killing a gangster. In time, the communities will see the killings of the police as a form of natural justice. To the gangster’s thinking, the police are just rivals for power in the community and a community in disorder will reflect that thinking. Such behaviours reflect a disordered view of the relationship of legitimacy and police presence. Unless that relationship is healed, on both sides, the operational and tactical levels will continue to create tensions within the community. We will have order, but we will not have justice.

Conclusion

We cannot accept on the facts presented that Mr Duggan’s death was just because there are too many unanswered questions at the operational and strategic level. If the government and the public reduce Mr Duggan’s death to a question of legality, it raises questions about whether justice is possible in the UK. The focus on legality avoids the question of justice and it masks the problem for the political order. The political order does not reflect a just relationship between the police and the community. The relationship can only be healed through political reform and police reform, which must be more than a reference to “community relations”. If our focus on policing remains on community relations, we deal with the symptoms of the disordered relationship not its source. To address the justice gap created by the inequality within the political order concerning the access to justice, we need to improve how the community accesses justice and most importantly how it understands justice. When decisions at the tactical and operational level can be demonstrated to be legal and accepted as just, then relationship will begin to heal. Both sides have to work together otherwise, the relationship will remain disordered and the spectre of injustice will haunt the operational and strategic level. Without reform, the focus will remain on responding to riots better than on preventing them through a well ordered community based on a shared understanding of justice.


[2] If were to entertain that Mr Duggan was a martyr we have to accept that his cause was worthy of martyrdom. Is criminality is to be valued more than public order and lawfulness?

[3] The coroner’s inquiry is not the same as a judicial review so its outcomes are limited to the first level. As such, it raises the question of whether it is sufficient to accept its outcome as embodying anything more than a legal ruling on the tactical level, which cannot express a final view regarding the question of whether Mr Duggan’s death was just.

[5] http://www.bbc.co.uk/news/uk-25363828

But Det Ch Insp Foote said he was “very lightly convicted”. Minor offences like cannabis possession and the sale of stolen goods were all he had on his record.Some of the police intelligence on Mark Duggan was graded E, the lowest on the scale the police use to grade accuracy.It was, said the coroner, “certainly a very poor quality indeed” and DCI Foote told the inquest “I had no information on which I could have arrested Mark Duggan.”

[7] For example, there were no riots in Chelsea after lawyer Mark Saunders was shot.

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About lawrence serewicz

An American living and working in the UK trying to understand the American idea and explain it to others. The views in this blog are my own for better or worse.
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