Eine Kleine Nichtmusik

Witty and pertinent observations on matters of great significance OR Incoherent jottings on total irrelevancies OR Something else altogether OR All of the above

Monday, March 29, 2010

G is for Gaza, Genocide....and GATSO?

I had an interesting and unusual day today. Put it this way, in this post I shall be making reference to Haydn's Symphony No 96, speed cameras, Andy Capp, ethnic cleansing and John Cage. It's a funny old world.

You may remember this post concerning the appearance at the 2008 Edinburgh International Festival by the Jerusalem Quartet, one of whose claims to fame is that they are sponsored by the IDF (the Israeli army). Indeed, the JQ are Distinguished IDF Artists. Of course they have a perfect right to be sponsored by the army in which they all serve as reservists, but I have an equal right to feel rather uneasy about it: hence I added my voice to those calling for the concert to be cancelled. It wasn't, and that was the end of my involvement with the affair. Five members of the Scottish Palestine Solidarity Campaign (the organisation to which the pseudonymous commenter on that earlier post took such exception) staged a demonstration during the concert (which was being recorded for BBC Radio 3). As I said, I didn't (and still don't) feel comfortable with that. Firstly because I organise concerts, I play in concerts, I don't disrupt concerts. It isn't what I do, and I can;t see that changing. Moreover, in order disrupt the concert five people must have spent a minimum of £7.00 per ticket. Maybe SPSC felt it was money well spent, but to me that was £35 going to IDF propagandists. Yippee. I could have seen the point if SPSC had bough up all the tickets so the quartet came out to play to an empty hall. That would have been pretty cool. But if they were simply looking to be arrested for breach of the peace, as they were, they would have done better to stay outside, dress up in tails, and wander about with violins (in one hand) and replica Galils (in the other). But that's just the way my mind works, I guess.

So anyway, the five people were charged with Breach of the Peace. Or so they thought, until the Procurator-Fiscal (the Scottish state prosecutor) dropped that charge and brought instead the more serious charge of "Racially Aggravated Conduct". Originally it was claimed that the five had made comments about "Jews, Israelis and the state of Israel", evincing malice and ill-will towards the musicians because of their membership or presumed membership of an ethnic group. That argument lasted as long as it took for the BBC's recording of the concert, and hence of the whole protest, to be made available. No mention whatsoever of Jews. No racist comments: indeed a member of the quartet made a response in terms which made it quite clear that he was viewing the protest as a political act rather than any kind of racial abuse directed at the quartet (or anyone else).

With the word "Jews" duly struck from the charge, one might think that would be the end of the matter, but the Procurator-Fiscal proceeded with the remainder of the accusation. More detail on the whole affair here. Also a good piece by John Pilger on what has now clearly shifted from five guys getting their just deserts for a breach of the peace to a full-blown political trial of the kind one associates with wicked foreign places.

Which is how I came, this morning, to be taking part in what I'm pretty certain is my first public political protest, though I have stood on picket lines and made speeches at trade union conferences. In fact FWIW I was the proposer of the motion many years ago now which caused Unifi - the finance union now subsumed into Unite - to affiliate to the Palestine Solidarity Campaign (not the same body as SPSC but obviously sharing similar aims). We assembled outside the Sheriff Court in Edinburgh, and if it gets reported anywhere I'm one of the ones waving a large Palestinian flag, which unfurled very nicely in the breeze. The rain stayed off; several of the defendants made speeches (some better than others); we got some interest from passers-by and some racist comments ("Go back to your own country") by more than usually unobservant youths who were heading into the courthouse (possibly to stand trial for imbecility). Then just before 10.00 we all headed in and watched the legal fun. As well as my first demo this was my first time in a courtroom: they keep calling me for jury service then standing me down. I made a lot of notes, and here are my (much edited-down) impressions.

This first hour or so was taken up by the fact that counsel for three of the defendants hadn't turned up, which as you can imagine did not please the judge. One had been working elsewhere in the building and didn't think this case had been called yet: when he showed up about 25 minutes late he got an entertaining chewing-out by the boss. I was amused by his wig. barristers in Scottish courtrooms, as in English ones, wear wigs. Mostly, these look as you imagine legal wigs to look. This chap, though, had clearly adopted a personal style: his wig was pulled forward so that it perched precariously on top of his head while completely covering his forehead down to the eyebrows. The impression was of a legal version of Andy Capp, designer stubble and all. The other two had been attending a case at the High Court: the judge called an adjournment until they rolled in at 10.45. He then made it pretty clear what priority they should be assigning to their High Court appearance and what to their appearance in his courtroom. Suitable grovelling was done, and when it was concluded the defendants asked if we could move to a bigger courtroom as there were some 40 folk outside unable to get seats. One had just come free so we moved there.

Eventually we kicked off with the prosecution case. The P-F considered that "race" included nationality, citizenship or ethnic origin, hence remarks concerning the state of Israel were racist. "Israel", he said, "is an independent country and citizens of Israel are of Israeli nationality". Which will presumably come as a surprise to Israelis, whose government always maintains that there is no such thing as Israeli citizenship or Israeli nationality, Israel being a "homeland for the Jewish people". That the only comments concerning the quartet themselves were that they were "Israeli Army musicians" was felt by the P-F to be an evasion, "semantic hair-splitting". He also believed that the protest amounted to harassment of the quartet (which requires more than one instance of the action) as the concert was interrupted five times. His main argument, though seemed to be on the importance of context in establishing malice or ill-will. There was much discussion of the Walls case, where someone had shouted "Fenian bastards" and "Fuck the Pope" at a football match, which had been held to show ill-will towards members of the Roman Catholic faith. (I may be wrong, but I'm guessing this was a Rangers v Celtic match.) The prosecution contended that the repetition of "Israeli army musicians" and "Genocide in Gaza", and the statement that "The Jerusalem Quartet celebrates ethnic cleansing: they're sponsored by the state of Israel" showed similar ill-will (though I have to say the judge seemed somewhat unconvinced by the comparison). Finally, much of the legal arguments involves the rights to freedom of speech and assembly under the Human Rights Act. The prosecution claimed that this was not a "peaceful assembly" in terms of the HRA, not a peaceful protest. The P-F state that while it was normal procedure at a football match or pop concert to signify approval or disapproval during the performance, in a classical music concert the normal procedure is the maintenance of silence during the performance ("an attitude of stillness, silence and concentration").

My notes at this point read "Oh for the John Cage defence!" The composer John Cage back in the 1960s realised that in fact we never listen to concerts in silence: there is always coughing, rustling of programmes, air-conditioning, sirens outside..... We simply choose to attend to the "music" rather than to the rest of the "noise". He thought it would be interesting to draw attention to this unconscious selection, and did so (famously) by the expedient of composing a silent work (4'33"). Of course it isn't strictly silent at all, but acts like an experimental control: the performer(s) carries out all their normal actions except for those involving deliberate musical sounds. So we have piano stool creaks, page-turning (I always liked that one) and so on, plus of course all those off-stage noises I mentioned earlier. Anyway, Cage would have considered the protest merely another part of the sound picture. One might also consider other classical performances famously interrupted, of which the greatest is the premiere of Stravinsky's Rite Of Spring, disrupted by audience members with motor horns and whistles. Or see here: 'Not only did Mozart expect clapping between movements; he also inserted forte outbursts into the “Paris” Symphony that he knew would provoke a round of applause mid-bar.' Wagner introduced the innovation of darkened opera houses (at Bayreuth) because he had become so irritated by audiences talking to each other during performances of his works. Finally, if the audience at the premiere of Haydn's Symphony No 96 had not all rushed to the front (in a manner resembling a "mosh pit") it might have been nicknamed the "Bloody" rather than the "Miracle" (and yes, I know it's now thought that the event actually occurred with a different piece). All of which is to say that the prosecution's "normal procedure" at classical concerts is a comparatively recently-adopted convention, and one by no means universally followed.

One other piece of egregious straw-clutching by the prosecution came when discussing the question of intent. For a breach of the peace the test is whether distress was caused; for the statutory offense being considered today, it isn't the reaction of the victims that counts but what was in the minds of the perpetrators. Leaving aside the fact that this would seem to render the offence in principle one of thought-crime alone, the P-F reckoned that the law's distinction between "causing or intending to cause distress" meant that the law covered to possibility of distress caused unintentionally. I believe most people, whether laypersons or lawyers, would understand the distinction being made as one between actually causing distress and intending to do so but being unsuccessful.

The defence counsel never mentioned John Cage or Joseph Haydn (even though one of his quartets had been on the JQ's programme). The one in the Andy Capp wig pointed out politely the "repeated instances" held to constitute harassment involved different people, with those involved in the earlier protests being in custody by the time of the later ones. It could not be shown that they had "acted in concert" (no puns please, we're lawyers) unless one took their shared membership of SPSC as sufficient proof of that. There was nothing in the defendants' words evincing ill-will towards the quartet or towards Israelis: indeed one protestor had said she supported all Israelis of conscience such as Daniel Barenboim. The response from the quartet member made it plain that he considered the protest to be a matter not of race or nationality but of political conscience and political rhetoric. He made the point regarding the Israeli army "Of course we have the right to defend ourselves". This was a (controversial) political point, and why should he be allowed to make one and not the defendants? One might say the audience had paid to hear him; but not to hear him talk about Israeli military policy. Finally, when the new and more serious charges had been brought the Crown had alleged that fresh evidence had come to light to justify them, but no such evidence has been laid before the court. The judge did not feel he could have a view on that in itself, but the defence argued that it showed that the present prosecution was not in fact proportionate to the offence committed.

And there it ended, for most of the defendants. The judge had already announced that he would give his verdict on April 8th. But there was one small other matter. Mike Napier, one of the defendants, had originally been arrested and issued with a Fixed Penalty Notice for a breach of the peace. This was an on-the-spot fine like a speeding ticket. As with a speeding ticket, if you believe yourself to be innocent you can elect to go for trial in court. Perhaps you had never driven past the GATSO speed camera which had allegedly captured you doing 50 mph in a 30 mph limit. Well, Mike elected to stand trial rather then paying his fine. Now fixed penalty notices cover a range of common law offences including breach of the peace, but do not cover racially aggravated conduct. The law states that he could elect to stand trial for "the offence", meaning breach of the peace, and the current proceedings were denying him that right. Mike's counsel state that as there were no prior authorities in this matter the judge should make a ruling himself. he might also wish to consider referral to the High Court of Judiciary in London as a devolution issue, to obtain advice.

The response of the Procurator-Fiscal struck a chill in this viewer. The law, he said, state that if the accused elects to be tried, proceeding may be brought against him. The law does not specify in which court they will be brought, or on what charge. Once he refuses the fixed penalty notice, in the P-F's words "he returns to GO" and the whole case against him is reconsidered ab initio. In other words, you could in principle be issued with a speeding ticket or a littering fine, decide to protest your innocence in court and wind up in the High Court on a charge of membership of al-Qaeda. The question of whether the SPSC 5 committed acts of racially aggravated harassment is an important one, but the question of whether the law on fixed penalty notices can be interpreted in the way the Crown wishes it to be: that's dynamite.

So....that was my day.


At 30 March, 2010 11:00, Blogger Fractious Tart said...

Disgraceful that once a trial has been elected the actual charge may be changed.
This is a clear breach of human rights since he has then been denied the possibility of mounting a defence against the original charge.
You cannot elect for trial for a speeding ticket then face a trial for dangerous driving instead.
It just doesn't add up.

At 30 March, 2010 14:31, Anonymous Anonymous said...

Israel does not allow 'Israeli nationality' - that's for sure - but it allows 'Israeli citizenship'.
The distinction is important since only 'Jewish nationality' in Israel allows access to many areas of social welfare, areas of residence, employment, and any sense of identity with the 'Jewish State'. Israeli citens who have sought to have their nationality changed from 'Jewish' to 'Israeli' have been rebuffed by the Israeli Supreme court as trying to make the state a state of all its citizens rather than a (Zionist)state claiming to represent all the Jews in the world.

At 04 April, 2010 21:20, Blogger Rob said...

Fractious Tart - whether it's legal to change the charge like that has still to be decided by the judge. let's hope he decides against.

Anonymous - thank you for the clarification.

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