The 'Fallacy of the Excluded Middle' is committed whenever we inappropriately reduce a set of options to two alternatives, excluding other options such as those that are somewhere between those alternatives.
I was reminded of the fallacy earlier this week when a reader pointed me in the direction of this article by the Chief Executive of Probation in Lancashire examing a possible inverse relationship between police force detection rates and the measured rates of reoffending used by the Probation Service in those areas. It contains this comment:- “our current performance is 11.3% therefore 88.7% don't reoffend“.
No sooner had I read that than “That's not right.” popped into my mind. “11.3% reoffending merely means that 88.7% haven't been caught.”
Now, I don't mean to be particularly uncharitable. Clearly one of the reasons they haven't been caught may be that they hadn't committed any crime for which they could have been caught, but also, perhaps they had committed such an offence and were just lucky, or had a proficient lawyer (I hesitate to use the term 'good' in this context), or for some other reason evaded capture, including taking advantage of the generally difficult nature of proving things to the standard required in a criminal court.
And the excluded middle came to my mind again today when pondering events in Lincolnshire. Lincolnshire, I should remind you, is the area where a nationally prominent Independent candidate withdrew during the election, where an email mix-up denied the Conservative candidate a listing on the national PCC election website, and where the election came down to a fight between two Independents, a retired Council Chief Executive and the ultimate victor, a local TV presenter.
Lincolnshire's PCC had decided to suspend his Temporary Chief Constable, and then felt forced to tell the world why, in the face of legal action from said senior officer. I'll not go into that, as I know considerably less than what I've read about it. However, what I will go into is the implications that are being drawn from the fact that the officer won, and that the High Court judge who handed him his reinstatement decided that the PCC's decision was “perverse and irrational”.
I have seen two forms of reaction to this.
1) The PCC's decision has been ruled unlawful, say some. His suspension of a senior officer caused that officer some considerable distress, and cost the public a fair whack, including the cost of this case. Should the PCC not resign?
2) The PCC has been going on about how he is elected but is suddenly being bossed around by a judge, and how PCCs will now be looking over their shoulder before they make decisions. What is the use of his office if he can be over-ruled by a judge?
Which made me think of the excluded middle.
A PCC has lost a judicial review. The world has not ended. The PCC has not been found in a compromising position with small boys, or with his hand in the till – what has happened was 'unlawful', but not in the sense of “criminal”. The law requires decisions to be reasonable and proportionate. The judge decided that test was not met in this case. There may well once have been a Home Secretary who did not do anything unlawful in this sense, but at the moment I struggle to think of one – judges sometimes seem to take an impish joy in sending the decisions of people in that office back for reconsideration. So the PCC now gets to feel like countless Home Secretaries and other ministers have felt – a red face, perhaps a stinging on the back of the hand, but able to fight another day.
On the other hand this judge's choice of words is perhaps more than usually harsh. Losing a judicial review pretty much requires that something is 'unreasonable', but 'perverse and irrational' seems a bit stronger. Is this another instance of judicial disapproval of people who have what they lack, a few votes behind them, showing its ugly face, or is it a reflection on the degree of departure from reason in this particular case? Or something else (he says, in an effort to avoid an excluded middle)? Who can say for sure?
However, I have expressed before my concern about the tendency in some areas for PCCs to adopt an 'I can do whatever I want' attitude. Some unfortunate statutory wording around their powers to appoint a Deputy, together with 'scrutiny' by Police and Crime Panels that will never have need of toothpaste, may have engendered in some a willingness to appoint mates to jobs without adverts or other trifles that mere humans take to be necessary. As these appointments have yet formally to be challenged, a sense of invinceability could have become a risk, and could have spread beyond their personnel decisions. Perhaps not now though?
I accept that PCCs will make some decisions in a manner with which the courts will disagree. For me it is curious though for a PCC to expect to make decisions without having looked over his shoulder and considered actively whether a judge might consider them to be within the bounds of reason or legality. One welcome development of the past few years is that more Chief Constables have been finding their actions under greater scrutiny than they anticipated, including from PCCs. PCCs must be careful to avoid adopting the bad habits of the past and need to remember that their own role is all about accountability.