The first question: how big is the overlap?

In the month before sentencing, one third of offenders had been in regular employment. DWP term this “P45 employment” to recognize that it does not include the self-employed, informal cash-in-hand work, or wages too low to trouble the tax system. The matching process covers “recordable offences”, meaning from more serious motoring offences upwards and leaves out many crimes normally punished only by a fine, such as TV licence evasion. This has some effect on the make-up of the people matched between the two databases. Over half those sentenced had been claiming out-of-work benefits in that month, with almost a quarter on Job-Seekers Allowance. For theft or handling stolen goods, two thirds had been on out-of-work benefits and under a quarter (22 per cent) in P45 employment.

The corresponding statistic is what proportion of people on out-of-work benefits, especially Job Seeker’s Allowance (JSA), committed an offence. Of 1.2 million JSA claims open at the start of December 2010, 400,000 were listed in the Police National Computer as having offended in the ten years previously. The proportion is one third. For all out of work benefits, the fraction is just over a quarter of claims, but with the distortion that many people are eligible for more than one benefit. It is a substantial proportion, but there are still rather more law abiding citizens on out-of-work benefits than offenders.

The Second Question: What does it mean?

A criminal record is known to make getting a job harder. Nearly half (47 per cent) of prisoners were still on benefits two years after release. Three quarters claimed at some point in that time and the average was to claim for almost half the period. Add to that 11 per cent back in prison after two years and 46 per cent back in prison within two years and the numbers are much higher than those progressing to P45 employment. Only 15 per cent were employed (on a P45 basis) after two years and 29 per cent had been employed over the period. After prison, some barriers to employment persist, whatever the motivation of the ex-prisoner.

The high level of overlap does not imply total correspondence. Two thirds of JSA claims were by people without recordable offences. One third of offenders in 2010 had been in P45 employment and more can be assumed to have had other forms of work. One third of individuals sentenced for theft or handling had not been receiving benefits in the previous month. The message of the data linkage is that society does not have to presume that a whole category of people break the rules. There are people that commit offences that have jobs and who do not claim benefits. There are people receiving benefits that have never committed any offence. The linking gets beyond that. It is possible to tell which individuals both claim benefits and commit offences. It is even possible to tell whether they have little success finding honest employment. In those cases, there is a much stronger argument for suggesting that people could be obliged to work for their benefits, especially when considering that this may apply to around a quarter of out-of-work benefit claims.

Rausing claims that ‘Like health and safety, human rights is becoming entangled in a web of urban myths and populist conservative attacks.’ Certainly, there are some myths about particular cases that have crept into the debate. But there are also real issues regarding the rights of serious offenders and no amount of populism-bashing can make them vanish from the records.

Take deportation orders. The ECHR has ruled in separate cases that men convicted of heroin trafficking and sexual assault have retained the right not to be deported back to their country of origin, if they can show a familial connection in the UK. Looking at each case, one might see some merits in the defendants’ arguments. But this isn’t a question about the precise merits of every individual case, but who decides on those merits: our courts on the basis of laws approved by our representatives, or by judges based elsewhere on the basis of legal interpretations that are usually far from clear. These issues exist. They are not populist myths.

Rausing also claims, ‘Human rights is about principles’ before going on to defend the votes for prisoners on the basis of equal treatment. I think this does a disservice to human rights which, at their core, are steely pragmatic in the best of senses. They were established at the end of the Second World War when it was apparent that modern states were no less capable of utter brutality than ancient despots or mediaeval monarchs (but were armed with more powerful technology). On the basis of grim experience, human rights law attempted to constrain states and other powerful actors to prevent them from persecuting individuals and minority groups.

As a result, most of the content of human rights law is absolutely necessary for the maintenance of liberal democratic societies. For example, freedom of speech is essential because allowing widespread censorship provides a weapon to authorities who wish to silence dissent. People who have been mistreated can be cowed into submission by the threat of sanction if they speak out. Free deliberation in a democracy is impossible without allowing controversial views to be heard without fear of penalty.

Take another example regarding prisoners: authorities must provide physical security and basic humane conditions for those in custody. To offer any less would open convicts to harm beyond what was appropriate for their crimes, bringing the judicial system into disrepute. It could discourage juries from finding offenders guilty for fear that the punishment would be a greater crime than the initial offence. These human rights in a justice system are essential to prevent a total breakdown of law into the arbitrary imposition of harm and degradation, and it is precisely these sort of rights that campaigners and judges are right to focus on.

By contrast, the right of prisoners to vote is essentially symbolic. Voting is not a practical way of changing one’s personal circumstances in the same way as, for example, having a right to legal counsel. The prison population is sufficiently small that it could never actually alter the outcome of a general election even if it voted as a bloc (which it never would). Moreover, restricting the franchise in this way is non-arbitrary and predictable: any citizen can avoid being unable to vote simply by not committing a serious enough crime that warrants incarceration.

Compare this with the general right to suffrage. Discussing the history of the Levellers, Tim Black explains in Spiked: ‘those who fought for political emancipation, the struggle for enfranchisement was tied up with the urge to exercise greater control over their lives. That is, the vote meant something: it promised self-rule; it promised sovereignty’. For the people as whole, a broad franchise, without arbitrary restrictions, is essential. By contrast: ‘those making the case for prisoners voting, whether slumbering at the ECHR or campaigning at the Prisoners Reform Trust, seem to have little interest in the actual stuff of freedom. As they see it, the vote’s primary purpose is to make prisoners feel better about themselves.’

In other words, human rights are being treated as a sort of individual and social therapy, rather than a practical means to rein in the powers of government and offer essential protections to individuals. People want to give the vote to prisoners not because it will change collective decision-making but because it is a ‘nice’ thing for prisoners to have.

A slightly different point applies to the deportation of convicted offenders. So long as it is widely understood that residence in the UK is conditional for foreign nationals on not engaging in crime, then this, arguably, isn’t really a question of human rights either. Tragic as individual cases of families being broken up by deportation proceedings might be, the simple way to avoid it is for foreign nationals not to engage in crime that threatens the community around them. Once the crime has been committed, the situation is already a tragedy of sorts. Policy-makers face the trade-off of the interests of the convicted and the interests of the community. To prefer, as a matter of policy, the interests of the community in these circumstances over those of the offender (or their family) is not to abridge human rights. A society that deports dangerous foreign convicts is not diminishing the ability of its law-abiding citizens, or residents, to live free and fulfilling lives.

When human rights are invoked to defend abstract principles that are not actually very widely accepted by the general public but are wedded to highly particular ethical positions, their power over the really important matters is reduced. Properly understood, human rights stand at the very foundation of democracy. Misunderstood, human rights start to compete with, rather than support, democracy.

The Secretary of State for Justice, Ken Clarke, has claimed that recent falls in crime have occurred at a time of increased prosperity. He concluded that therefore the way to reduce offending rates further was to improve prosperity levels generally, and added that there was no link between imprisonment and crime. However, such arguments are not only contradicted by recent empirical research, but by decades of experience from the UK and other countries.

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For a few dramatic days in August 2011 the twin pillars of law and order seemed on the verge of collapse as an epidemic of riots and vandalism spread across the United Kingdom. The question of how a small protest against apparent police brutality in Tottenham could spark upheaval as far afield as Huddersfield has given rise to a number of competing explanations.1 Significantly, many commentators and politicians have homed in on the role of social networking and its relationship with Generation Y. Given Twitter and Facebook’s past form – many have labelled the Arab Spring the “Facebook Revolution” – it is worth seriously considering their effects on Generation Y. This article will tackle the interrelated questions of whether social media caused the UK riots (including Twitter, Facebook, and Blackberry messenger) and, if so, whether these platforms should be suspended from use during times of crisis.

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The Directive in question is the robustly named ‘EU Directive on Access to a Lawyer in Criminal Proceedings and on the Right to Communicate upon Arrest’. Under its proposed terms, any person suspected of criminal activity in a member state would automatically have the right to legal representation during interrogation by the authorities. In addition, they would be entitled to have a legal professional assess the conditions in which they are being held.

Justice Minister Jonathan Djanogly justified the decision by arguing that the directive “would have an adverse effect on our ability to investigate and prosecute offences effectively”, and emphasised the “considerable concerns about the details of the directive and the impact its drafting would have on the UK’s criminal justice systems”.

However, given the nature of these reservations, the decision to opt out seems somewhat illogical. Although the minister emphasised that the UK has not ruled out opting in at a later stage, by withdrawing from the process now, the UK has excluded itself from all negotiations that will eventually determine the detail of the final text. Moreover, this approach undermines the Government’s professed strategy of using the negotiating power concomitant with membership to reform the EU from within. As Jodie Blackstock of Justice has stated: “The possible reasons to opt out simply do not stand up to scrutiny.”

By opting out of the Directive, the Government could deny UK citizens arrested abroad the protection of fundamental rights that they have come to expect in Britain. Head of policy at Fair Trials International, Catherine Heard, denounced the decision as increasing the risk of “further cases of injustice”, highlighting that “a third of our clients facing charges in other EU countries complain about poor access to legal advice”. The now well-known case of Andrew Symeou is a paradigm account of the excesses of the European Arrest Warrant, which compels the UK to fast-track British citizens for extradition, with minimal safeguards or legal recourse and no questions asked.

While the UK is paralysed in its efforts to bring its own citizens back home, it is also paradoxically shackled in its attempts to deport known offenders. The announcement of the opt out comes as new figures reveal that the number of EU citizens convicted of criminal offences in the UK has trebled over the last four years, soaring from 10,736 in 2007 to 27,563 in 2010. Based on results for the first seven months of 2011, more than 33,000 convictions are expected this year – some 100 convictions every day.

An EU citizen will not face deportation after conviction unless they receive a custodial sentence of more than two years. In addition, a probation service memo from 2007 highlighted that a new EU Directive could restrict this even further, permitting deportation only where offenders pose a “present, genuine and sufficiently serious threat” to society. Last year, just 1,480 EU citizens were deported from the UK, and it is unclear how many of these were removed as a result of a criminal conviction.

Moreover, the Government now risks eroding legal rights in the UK, as the Legal Aid, Sentencing and Punishment of Offenders Bill could remove the longstanding guarantee of face-to-face legal advice in a police station on arrest. The new regime could introduce automatic means testing, denying some people the right to have a lawyer present during police interviews, although the Bill does extend the provision of remote advice.

If the Government is to realise its commitment to fortifying basic fair trial safeguards at home and abroad, it should aim to improve general practice in Europe by exporting the traditionally exemplary standards of justice in the UK; it should not surrender its ability to influence the direction of important criminal justice policy at the EU level. Establishing minimum guarantees of legal representation throughout the EU-27 benefits not only EU citizens in this country, but UK citizens abroad. Opting out of the Access to a Lawyer Directive not only removes the UK from the negotiating table, but signals the country’s disapproval of the scheme. Given our knowledge of the catastrophes that ensue when legal safeguards are lacking, this is a position we would be unwise to take.