Bring back the asylums

The Sydney hostage siege ramps-up the drum beat for more community protection ... History of violent sieges resulting in more power for securocrats ... The common law is not equipped to determine future criminal conduct ... Procrustes turns to the mental health system for a solution  

Martin Place, Sydney

THE following thoughts are written in the shadow of the Sydney siege, just 10 days before Christmas, resulting in the deaths of Katrina Dawson, Tori Johnson, and the gunman, Monis. 

The perpetrator has been leapt upon as an exemplar of islamo-fascism, which in turn raises the drum beat for ways of ramping up "community protection" i.e. increasing state surveillance power. At the same time, the heat has been turned on the courts, demanding reasons as to how they failed to see that Monis was a lethal pest, who needed to be locked-up.

But, history tells us that the seriously maladjusted will often pick-up a "political" cause as a justification for their obscenities, just as Monis draped his Black Flag in the Lindt café. Thus, Ned Kelly's Jerilderie Letter of 1879, curiously paralleling Monis' earlier ravings about words being his sword:  

"For I need no lead or powder To revenge my cause, And if words be louder, I will oppose your laws." 

As for the predictive limitations of the legal system, and for an early example of the theatre of terrorism in modern urban conditions, see another Sidney Siege, the Siege of Sidney Street in January 1911.

Some of the original footage from British Pathé and be seen here. 

A gang of eastern European anarchists in London were being hunted for the murder of three police officers, when they were located in Sidney Street, Stepney. The young Churchill, then Home Secretary, arrived to direct the police, calling in the Scots Guards and a cannon. Some of the gang died in the gunfire, but some stood trial for the earlier murders.  

Here's a narration which reports the violent siege: 

A month after the siege, Churchill brought in an anti-terrorist Bill with sweeping police powers. Josiah Wedgwood, Liberal MP, wrote to Churchill protesting as follows:

"You know as well as I do that human life does not matter a rap in comparison with the death of ideas and the betrayal of English traditions ... so let us have English rule and not Bourbon." 

One may imagine the hash that modern shock jocks and the commentariat would make of Wedgwood - the media speaks only of security, not of common law ideals.

Churchill compromised, with an Act that prohibited aliens from owning handguns, which compared with the froth being discussed pre-Christmas in Australia in 2014 was very small beer. 

The murder trials resulted in the acquittal of Jacov Peters, a Latvian anarchist. The forensic evidence of the day was simply not good enough to convict him on a charge that he would very likely fall to in the 21st century. 

Peters left town, to surface in Russia in the course of the 1917 revolutions and duly became second-in-command to Felix Dherzhinsky, of the Cheka, Lenin's secret police, and its successor the OGPU predecessor of the NKVD, and later KGB. 

In this role he was "notorious for his cruelty" - see Douglas Smith Former People 2012 p.5, and see also Giles Milton Russian Roulette 2103. Hands-up those who knew that Arthur Ransome, author of Swallows and Amazons was a British spy in Bolshevik Russia. Read the Milton for a rattling good yarn. 

Stalin tired of Peters and had him shot in 1938: psychopathology succeeded where common law courts had so spectacularly misfired.

My point: the legal system "failed" again - just didn't nail Peters for being the inherently evil creature that he undoubtedly was.

The law in 1911 had no machinery for detention on the ground of criminal tendency (although, note that it did in respect of serious mental ill-health). The common law has a proclaimed fascination with personal liberty: see Deane J, in Re Bolton; Ex parte Beane (1987), the case of absconded American serviceman, Mr Beane, who was about to be handed back to the American authorities by a compliant Australian government.

Deane opened his judgment with these words:

"The common law of Australia knows no lettre de cachet [the French Bourbons' method of locking up undesirables on royal say so] or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action." 

Meanwhile, the Chief Constable of Greater Manchester, Sir Peter Fahy, warns of a "drift towards a police state". 

Sir Peter Fahy: a policeman who doesn't like the drift to a police state

Sir Peter was vexed by the assumption emerging that police should be able to determine what speech was acceptable and which was not. What speech was hate speech and which actions were unacceptably extreme? 

He said that if politicians and civil society were not prepared to draw the lines, the power to decide would pass to securocrats. They, of course, will perform their determinations in secret, and beyond review.

In Australia we already have the example of ASIO's power to make secret and unchallengeable decisions, in its treatment of a genuine Islamic cleric, the theologically trained interfaith imam, Sheik Leghaei. He was turfed out of the country with no criminal record whatsoever, on the basis of ASIO's dud translation of his Koranic notes.  

The talk in the days after the Martin Place siege points to greater securocrat power, and since any later community harm will be taken very badly, that power will have to be used to weed out anyone outside a progressively narrowing, acceptable norm.

Too bad if you're not a fair dinkum true blue member of Team Australia. And the power of inhibiting movement, or deporting "undesirables" will be performed in secret, be unreviewable, and run-up a nice little industry in delations (see the Dyse on the concept from para.238 in Totani).

The plain fact is that the legal system is not well equipped to determine future conduct: it has evolved armed with hindsight, not prescriptive skills.

The issue is who is best fitted to determine future possibilities. In a choice between the common law courts, the securocrats, or the mental health system, I back the last.

That is because mental health systems are staffed with people who have the best training in understanding the trajectories of individual psyches, and experience in seeing just how lives play out. And that training and experience can be brought to bear on the publicly available actions of individuals, without having to go through an expansion of privacy invasion for the whole community.

The Lindt café tragedy was an inevitable result of the predictive requirements re Monis falling between the courts and the police. The latter say that they knew their man, and got no support from the courts. But the courts have obligations that transcend a singular concern for possible public safety issues.

It is an old fashioned mental health system that gives more latitude to detention determined by discretion based in prediction, and on the material already available. Old fashioned mental health (the sort we had 40 years ago before the asylums were sold off) had the teeth that the court system lacks.  

The mental health system gets my vote for dealing with the unhinged Monises of the world.

Armed with a crystal ball capable of being applied with immediacy, rather than having to be lugged to a courtroom and, with some retro-fitting, armed with powers untrammelled (to the same extent) by the concerns that inhibit courts and defeat the police, the mental health system could be the solution to the necessary "detention" of the obviously unhinged. 

Bring back the asylums!