Weeding out the rational basis of criminal law
In Ancient Greece or Ancient Rome, a cart or horse could be prosecuted for killing a man. In the Middle Ages, insects were put on trial for their destruction of crops. With the development of notions of legal responsibility, however, dumb objects and animals ceased to be held responsible for harm they unwittingly inflicted.
But now the UK government has rolled back the wisdom of centuries and has started using criminal powers for the punishing of invasive vegetation.
The new Anti-Social Behaviour, Crime and Policing Act includes a ‘community-protection notice’, which can be issued if an individual’s behaviour is having a ‘negative effect’ on the ‘quality of life’ of others in the area.
This already extremely broad power has been explicitly widened in a government briefing to include the damaging effects of weeds such as ‘Japanese knotweed, Himalayan balsam and giant hogweed’.
Councillors have been telling residents to ‘deal with’ their weeds or ‘face the consequences’ – consequences that can include criminal prosecution and fines of £2,500 for individuals and £20,000 for organisations. Estate agents are warning people that they could face prosecution if they unwittingly sell a property with one of these species in the garden.
Those who make a living dealing with invasive species know well enough that these are just dumb plants – if pretty tenacious ones – and not suitable candidates for criminal proceedings. Nobody grows Japanese knotweed on purpose, and the eradication methods can apparently take years.
The managing director of Japanese Knotweed Solutions said: ‘We question the use of already stretched resources to identify and manage disputes over invasive vegetation, especially as this can be an issue which can take many years to manifest and equally as long to eradicate. The UK has no plan to tackle invasive species, but an ever-increasing [raft of] legislation to punish those unlucky enough to have it on their land.’
That is, having knotweed lies within the bounds of events that used to be known as misfortune. Yes, there are things you can do about it, but these are difficult and beyond the means of many individuals (which is why local authorities have disease-control departments).
The Home Office briefing details all the harmful effects of Japanese knotweed: ‘These plants threaten our native biodiversity by crowding out native species and destabilising river banks. They can also cause damage to forestry, agriculture and infrastructure sectors. Japanese knotweed, for example, can grow through tarmac and can cause structural damage to property, while giant hogweed can cause harm to human health.’
That is true, but there is a difference between harm and criminal responsibility. Storms cause damage to property; crop blights adversely affect agriculture sectors. Should we prosecute the wind? Issue an ASBO to a farmer if a blight escapes to his neighbour?
This expansion of the criminal law shows that the rational basis of the law – that it punishes a restricted category of actions for which people are responsible – is being eroded. Instead, criminal sanctions are being applied in a piecemeal manner to deal with any form of unpleasantness or harm.
Another weed-eradication expert said that in his view the ‘new powers are an over-reaction. After all, having Japanese knotweed on your land is not a criminal offence, and these new powers have the hallmarks of making something criminal via the back door.’
It is a worrying day indeed when weed-eradication experts appear to understand the criminal law better than the Home Office.
Josie Appleton is convenor of the Manifesto Club, which campaigns against the hyperregulation of everyday life. Visit the Manifesto Club website.