The Public Sphere and its Offenders

This is the second part of a two-part study of crime in the public sphere. The first part argued that traffic is the most instructive corner of a single object — the public space, defined as the jointly administered, continuously sensed, materially selfrecording territory through which persons, goods, signals and value move under the joint governance of the State and the private actors of the data and logistics economy. This part completes the catalogue by analysing three further families located squarely within the public sphere — the jointly governed domain of shared life, held in strict distinction from the private sphere of private life, family life, the home and private property: crimes against the environment (harm discharged into the shared physical world that is no one’s private property); crimes of abuse of public office (the betrayal of the public trust, in which the State’s own agents are the offenders and the State’s own records are the crime scene); and crimes against general public safety (the offences of endangerment, in which the criminalised wrong is the creation of danger to the public before harm is realised). Read across all six families now studied — violence, property, movement, environment, office and public safety — a single structure emerges, and stating it is this paper’s purpose. First, they share a locus: each is committed in, upon, into, against, or at the public sphere, even where — as with violence to the person or theft of private property — the interest ultimately harmed is private; and it is the publicsphere dimension, not the private interest, that fixes their evidentiary character. Second, they share a trace structure: the decisive evidence is overwhelmingly material and documentary rather than testimonial; it is graded along a trace gradient; and criminal conduct migrates toward the trace-poor end, manufacturing opacity where it cannot find it. Third, they share an actor structure: the characteristic offender is a legal person or the State itself, not the lone natural person — which both engages the bearer axis and, in the case of abuse of office, inverts it, turning the State from the holder of coercive power into the object of inquiry. Fourth, they share an epistemic asymmetry: the holders of the public sphere’s sensing apparatus know far more than the courts, so that detection increasingly arrives from lawful actors performing other tasks rather than from the State’s own perception of its own wrongdoing. The paper sets these findings within the architecture of the Council of Europe Conventions — including the new Convention on the Protection of the Environment through Criminal Law and the Criminal Law Convention on Corruption — the case-law of the European Court of Human Rights on environmental positive obligations and on surveillance in public space, the Charter of Fundamental Rights, and the Union’s data-protection and artificial-intelligence framework. It concludes that a general Law on Evidentiary Means, Investigative Activities and Standards of Proof should be built on the primacy of material traces across all families, disciplined by the etiological axis, the bearer axis, the data-in-the-clear doctrine and the proportionality gradient, with the public/private distinction serving at once as the organising principle of the subject-matter and as the governing limit of lawful proof — and that the catalogue of crime in the public sphere is, with this paper, structurally complete.