Why were there no arrests at the Proms?

by Carl Gardner on September 2, 2011

I was listening to the Proms last night, when the concert was rudely interrupted. As most readers will know, protesters disrupted the concert because the Israel Philharmonic Orchestra was playing.

I’m attracted by Norman Lebrecht’s view (expressed in response to an earlier, similar outrage at the Wigmore Hall, apparently involving at least one of the same people, Deborah Fink) that such disturbances are an assault on an element of civilisation and that no cause that can ever justify the desecration of the sanctuary of the concert hall. If I were forced to philosophise about it for an hour or so I suspect I couldn’t be sure no cause could ever justify this sort of thing in any circumstances (the Springbok rugby tour protests in 1969 give me slight pause). But this is real life, 2011, and art not sport; and I can’t think of a cause that would justify it. I think protests like these are irrational and ignorant.

This is about the importance of artistic expression, and raises exactly the same issues as earlier controversies about The Satanic Verses, Behzti and Jerry Springer – The Opera. Fanatics of every stripe regularly try to disrupt art they don’t like. I’m against them. I’m for freedom of expression.

Incidentally, I find it depressing that mainstream human rights organisations like Liberty seem to have nothing to say about incidents like this – it’s one of several reasons why I’m not a member. Perhaps we need an organisation that will specifically stand up for artists’ freedom against zealots. Some people might lazily think this is a complex issue pitting artistic freedom versus the right to protest – but it’s not. I think there is a legitimate case to be made for Palestine, and I have no problem with people protesting outside the Albert Hall.

In this case there’s another reason why I found the disruption unacceptable. I know criticism of Israel isn’t the same as antisemitism. I realise every protester would deny they’re antisemitic, and say they’re against Israel, not Jews. I dare say they all mean it sincerely, and I know at least some were Jewish. But boycotting shops because of Israel reminds me of this, and disrupting an Israeli orchestra reminds me that the Kampfbund für Deutsche Kultur used to disrupt concerts by Jewish musicians in the 1930s. Surely no one can fail to see the moral problem here, particularly as the IPO seems to have been founded as a result of Jewish musicians being sacked from orchestras in Nazi Germany. I don’t see why it matters whether or not you’re Jewish.

So I’m surprised and disappointed there were no arrests last night. I think there could have been, under section 68 of the Criminal Justice and Public Order Act 1994, which makes it an offence to trespass on land and do anything intended to disrupt lawful activity there. You might initially think the protesters were not trespassers in the Albert Hall, having been let in with tickets, but the 1976 Court of Appeal decision in R v Jones and Smith (I can’t find it on BAILII I’m afraid) suggests that you become a trespasser for the purposes of criminal law if, though entering premises with the consent of the owner, you do so intending to do something that goes beyond the scope of the implied permission you were given to be there.

Yes, arresting these protestors would arguably have interfered with the article 9 Convention right to manifest one’s beliefs, and the article 11 right to peaceful assembly. But interferences with those rights can be justified for the protection of public order and the rights and freedoms of others – in this case of course the equally important freedom of expression of both musicians and audience – and arrest and prosecution would be entirely proportionate in pursuit of either of those policy aims.

So there’d have been no human rights difficulty in making arrests. On the contrary: the human rights issue here, in my view, is the positive obligation of state institutions upholding the rule of law to prevent unjustified and disproportionate private breaches of freedom of expression.

Mahler’s on tonight: the lovely Blumine movement he cut from his First Symphony, and then that great First Symphony itself. I hope you’ll be listening too.

{ 15 comments… read them below or add one }

1 John Bolch September 2, 2011 at 15:28

It could have been so much worse, Carl – they could have interrupted a concert by Dana International!

2 Carl Gardner September 2, 2011 at 15:31

I wouldn’t have minded that quite so much, I admit.

3 James Medhurst September 2, 2011 at 16:33

Carl,

I take your point about disrupting performances interfering with freedom of expression but I do not think your other examples are comparable. In Jerry Springer, performances were not disrupted, according to the Wikipedia page you linked to, and there were certainly criminal offences committed outside of the theatre in the case of Behzti but not inside, as far as I am aware. The Satanic Verses protests were largely cases of book burning, which does not stop people from reading the book and does not affect free speech. (I am not talking about the firebombings or the fatwa here, which were clearly unacceptable, only the lawful protests by Muslims.)

One thing that amused me about the David Starkey controversy recently was a suggestion that free speech had been compromised. I am not sure how a piece that appeared on national television and was prominent on the BBC website for weeks afterwards can be said to have been censored. It is important to draw a line between criticism, even strong criticism, which must be permitted by free speech, and actions which actually prevent the speech being made.

4 Carl Gardner September 2, 2011 at 16:53

Quite right, James. I agree with the distinction you draw in your last sentence.

But the campaign against The Satanic Verses certainly was an attempt to have it withdrawn from sale, and of course globally the campaign led to the murder of at least one translator. In the case of Behzti, the crowd clearly aimed to close the play, and succeeded. So those two examples seem to me clearly on the “actually prevent the speech” side of the line.

I accept the Jerry Springer example is less clearly on that side of the line. Nonetheless, when you put together the way a cancer charity was blackmailed with what David Soul called mob-type tactics, the way they tried to prosecute those behind the opera, and that the aim was certainly to bully the BBC into not screening the opera, I don’t think that one’s obviously on the “right” side of the line either.

That last link of mine does remind me that, to be fair, Liberty must at least have said something about Jerry Springer.

5 Alison Bryan September 2, 2011 at 17:26

Perhaps Liberty doesn’t have enough resources and needs to prioritise what it gets involved with?

As a charity trustee and a former senior manager of a charity – I know that’s the way things work in the third sector, resources are particularly scarce.

6 James Medhurst September 2, 2011 at 17:36

Of course, the protesters in the Satanic Verses and Behzti cases both wanted the state to intervene to ban the works of art but, in neither case, did they succeed. The decisions were made not be the state but by booksellers and a theatre for a mixture of commercial reasons and because they were motivated by a fear of violence.

I hope you agree that if a company makes a commercial decision not to support a work of art because it thinks it will be unpopular or controversial, this does not concern free speech as usually defined.

This leaves fear and what I am interested in here is the duty of the state. If I decide to censor myself for fear of violence, it would be wrong for the state to insist that I do not. It has a duty to create criminal offences to prevent violence from being carried out and to enforce those criminal offences but surely its duty stops there? It is hard to see what more it can do except maybe create more offences.

It is disturbing that people can use intimidation to prevent certain views from being expressed but I think that talking about free speech is a red herring. Violence is the mischief to be tackled here not censorship. If someone hands over money to a blackmailer, it would seem odd say that his human right to property has been compromised, and difficult to see what could be done about it.

Being cyncial as I often am, I think what is happening here is that people who support the works which are affected are playing a similar role to people who write to the BBC complaining of bias. They think that, if they tell everyone that they have been slighted, this will cause either more airtime to be given to their views or, worse, the views of people they don’t like to be censored. This is OK as a political tactic but does not help to define the role of the state.

7 Carl Gardner September 2, 2011 at 17:45

I think you and I differ completely in our approaches, James. You seem to see the state as what you need human rights to protect you against. I think you need human rights protection also against private persons – which is why for instance I see press intrusion as a human rights issue, not the froth many people thought it was before hackgate exploded.

I think a company giving into intimidation or disruption and deciding not to publish a book, or carry on with a performance, certainly is a free speech issue.

8 ObiterJ September 2, 2011 at 17:59

Good old-fashioned BREACH OF THE PEACE would have done the job. Bring them up before the magistrates and have them bound over.

These days, in the light of recent events, for magistrates read “District Judges (Magistrates Courts)”

9 Carl Gardner September 2, 2011 at 18:02

Fair enough, ObiterJ. But is binding over enough?

10 James Medhurst September 2, 2011 at 18:13

Carl,

Of course, we need to protected against human rights violations by third parties but it is still the state which provides that protection and its duty to do so is not infinite – hence the blackmail example.
For Liberty to get involved, there would have to be a legal argument that the state has failed in its duty. You have shown that there is an argument to be had with the Proms example (though the margin of appreciation might apply) but I am unconvinced in the other cases.

Can I put you on the spot and ask you this? What changes would you make to the law, government policy and practice or (at a pinch) the actions of the Rep Theatre to produce a different outcome in the Behtzi case? And if you think the Rep Theatre should have acted differently, would it be proper for the state to compel it to do so?

11 James Medhurst September 2, 2011 at 21:26

By the way, for what it is worth, Liberty actually intervened in the Jerry Springer blasphemy prosecution at the High Court. This, of course, was a free speech issue and led to the law being changed.

12 Carl Gardner September 2, 2011 at 23:59

Thanks, James – perhaps I was unfair to Liberty. I often notice though that freedom of expression issues do go by without them making any comment – like last night’s concert. I think they share my view about private human rights breaches (for instance they campaign against the mosquito, a device used I think mainly by shopkeepers), so that’s not the explanation.

As for your putting me on the spot, now. I don’t think you need new laws, and I’m not sure new laws are always the answer. I think human rights questions can be about winning cultural battles, too, or a mix of both.

I certainly wouldn’t compel the Rep to continue playing Behzti. I think West Midlands police perhaps bear some of the responsibility: it was their telling the Rep they would or could no longer defend the theatre that effectively forced the Rep to give in. One thing that was disgraceful was the way Fiona Mactaggart, who was a minister at the time, simply equated the right of the crowd to protest (which entailed denying the Rep its rights) with the right of the Rep to put on the play (which denied no one the right to protest). I’d have sacked her for that if I’d been PM.

So my main answer is, I’d want more speaking up for free expression, and sterner defence of it by the police. In terms of legal engineering, perhaps it’d help if anyone who’d lost money as a result of closing a play early, etc., could easily sue organisations and individuals who contributed to the closure, to account for any losses. Perhaps DCMS could act for them if they’re government-funded; perhaps the Attorney should act for them if they’re a charity. Late night thoughts.

Oh, and I certainly wouldn’t give knighthoods to people who say things like “Death’s too good for Salman Rushdie”.

13 ObiterJ September 3, 2011 at 08:37

I think binding over would have been enough. Their conduct was certainly likely to have provoked disorder. There is no need, in my view, to over complicate this.

Of course, there would have had to be someone in the Royal Albert Hall there to make a lawful arrest. As things were, the staff could only usher them out.

Your point about entering premises with a licence and then becoming a trespasser is a good one. It lay at the heart of many of the burglary charges brought during the recent riots.

14 Willem Meijs September 6, 2011 at 02:54

Talking about the disruption of the concert by the IPO in the Royal Albert Hall on Thursday last week you approvingly quote (or paraphrase?) Norman Lebrecht’s view “that such disturbances are an assault on an element of civilisation and that no cause [that] can ever justify the desecration of the sanctuary of the concert hall.”

Would the full-scale destruction of the the Gaza Music School in January 2009 during Israel’s ‘Operation Cast Lead’ war on Gaza, during which all its musical instruments were destroyed, count as an assault on an element of civilisation? Were any of the perpetrators of that act arrested? What about the humiliation that Palestinian musicians have at times been subjected to – being asked to play a bit on their fiddle before being allowed to go through an IDF checkpoint, for instance? (see the one-but-last still on the ‘Ode to Boycott’ video: http://www.youtube.com/watch?v=5vqEEh-9JP4)?

Press reports and website accounts in the media storm that followed were (perhaps inevitably) not very accurate about the timing and the nature of what took place. So to put the record straight: each of the shouting interruptions took place (and were carefully planned to take place) BEFORE the beginning of a new item on the programme, just when the conductor had raised his baton, so the music as such was not interrupted. In other words, these shouted protests, raucous as they may have seemed, were designed to minimise the impact on the audience’s musical sensitivities.

The only exception to this was the protest during the very first piece, Webern’s Passacaglia. For strategic reasons this was planned to start a few minutes before the end of the piece on the assumption that that far into the piece the conductor would go on conducting (he did), security would take a while getting to the protesters and evicting them (it took about two minutes), the BBC wouldn’t stop transmitting, and they wouldn’t start the concert all over again (they didn’t). To compensate somewhat for the inevitable disruption, this first intervention was cast in the form of a MUSICAL protest, to mesh in with the ongoing performance of the Passacaglia. The result may not have been entirely melodious, but then Anton Webern was a progressive composer, a pupil of Schoenberg and steeped in 12-tonal music – who knows, he might well have approved of the resulting interplay between orchestra and choir as a product of the age (i.e. our 21st century), reflecting its tensions and contradictions:

http://www.youtube.com/watch?v=mrfH9GMM_iE&feature=related

Judge for yourself. Why were no arrests made? Simple. Because the only police around were outside keeping pro-Palestinian and pro-Israeli demonstrators apart. (Focusing all the media attention beforehand on the protest that was to take place outside was a stroke of genius by the organisers). The aim of the protest was realised: immediate world-wide attention for the unprecedented step of the BBC taking a prom (a PROM in the RAH!) off-air. And, even more important, sparking a world-wide discussion in newspapers, on websites, blogs etc. on the Israel-Palestine issue. A lot of it hostile at first, but I’ve seen many sensible and very well-considered opinions expressed as well. An arresting occasion indeed!

15 Master Steve Hamilton September 10, 2011 at 20:49

Why don’t you all – read a good book? The suggested book is “Gulag A History” by Anne Applebaum. At Page 479 she mentions “Freedom of Expression” – The Universal Declaration on Human Rights, Article 19 (1948). Quote “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers” Unquote.

At page 507 Ms Applebaum mentions the Nuremberg Trials
Quote “The Nuremberg Trial itself was an example of ‘victors’ justice marred by the dubious legality and oddities, not the least of which was the presence of Soviet judges who knew perfectly well that their own side was responsible for mass murder too” Unquote

Point is – Who are pulling the strings [musical pun intended] of the lefty liberals – and why doesn’t Freedom of expression suit their agenda today? Answers in plain English please and NOT with legal rhetoric.

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