Thursday, December 22, 2011

Normal service to resume some time or other...

Hi. This is the first post I've written here in the month of December. I only wrote one in November. I'd really hoped to do better than that. The end of the year is always a strange time, with various efforts naturally winding down in anticipation of the holiday shut down and the refresh that comes with the new year. My life is certainly no exception. Unfortunately this blog is mostly written by one person (me). Although I've tried to enlist others to help out, this has been rare. I have always found it difficult to start writing pieces that I know are going to turn out to be long. I have often spent several hours composing a blog post that if I'm lucky has been seen by three people. I'm going to keep this up, but I've given up on anything else meaningful in 2011. New Year's Resolution: write more.

There's been no shortage of topics. No, indeed. In fact, that's part of the problem. It's a bit overwhelming to be honest. Where do I begin? I've got so much I want to say about America: NDAA, SOPA, Protect IP, drone attacks and plenty of others. There's lots to say about Britain. We're still seeing misguided prosecutions of speech-related offences wrapping up in court rooms. There has been a particularly disturbing trend in Scotland (which lacks the Serious Crime Act) of charging common law breach of the peace for remarks made online in places such as Facebook. Breach of the peace here is quite galling as it does not require the prosecution to prove intent.

In England and Wales, we have a Crown Prosecution Service that is increasingly zealous in its fight against "offensive" and "menacing" online communications. Nineteen year old Hollie Bentley was fortunately cleared of her charges under the Serious Crime Act for allegedly intentionally encouraging violent disorder in a Facebook event with the title "Wakey Riots" containing the message "Who's up for it? LMFAO". She should never have been prosecuted in the first place, as there was never sufficient evidence of intent. I have submitted a Freedom of Information request to the CPS asking them to explain how this case satisfied the evidential stage of their Full Code Test, but this has been refused. I will request an internal review and let you know how that goes. In February we will hopefully see the end of the Twitter Joke Trial case when its appeal is heard in the High Court (unless this is again postponed). I'm optimistic about this and look forward to a decent case law precedent that will force the CPS to exercise considerably more restraint when considering future prosecutions against people who simply make bad jokes online. Fingers crossed. Merry Christmas and happy new year.

Wednesday, November 9, 2011

#TwitterJokeTrial and the cluelessness of judge Jacqueline Davies

It's been a while since I've written here. This at any rate is long overdue. I've been intending for months to write more about the Twitter Joke Trial. This blog site was created after the UK riots in August 2011; however, there are a number of older posts that were ported over from my personal blog. Most of these relate to the aforementioned case and the campaign around it.

Last night in London there was a special meeting of the Westminster Skeptics group devoted to the case of Paul Chambers, which is now popularly known as the Twitter Joke Trial. Having been a campaigner against the charges and the conviction since early on, I was invited to speak at the event. It was as good a meeting as any I've been to and there were lots of discussions afterwards.

I got talking with a couple of people, one of whom was fairly new to the case and was trying to understand how it could have gone so badly wrong. I described the judge at the Crown Court appeal, the "honourable" Jacqueline Davies, who presided over the trial with an imperious and impatient attitude. Someone asked me whether the judge had allowed tweeting in the court room. No, she certainly did not. In fact, when the court reconvened prior to the reading of the judgement, Davies revealed that she was annoyed to have learned about people tweeting details of the trial and issued a stern warning.

It was only last night that I finally put this together, and it made me angry all over again. Davies became annoyed when someone she interacts with (possibly one of the two lay magistrates at her bench) showed her updates on twitter that captured bits and pieces of the trial. She seemed to think that people were tweeting from within the court room as events happened, when in fact people simply wrote about the trial during the recess, as anyone is well within their rights to do. Perhaps some wrote updates after having excused themselves while the court was in session. This is also acceptable.

So poor was her understanding of Twitter that she couldn't get her head around the fact that someone could go outside the court room and write tweets about the trial which could then very quickly find their way onto her computer screen. The tweets were not meant for her, but she got hold of them anyway not long after they were sent and it made her angry. Someone might have instead used a telephone or a text message to communicate details to some third party and those messages would not have found their way to the judge. That would also have been fine of course.

Quite clearly judge Davies was not qualified to hear this case. If she is unable to understand even such a fundamental aspect of real time broadcast communication, she has no hope of understanding the more intricate mechanisms, both physical and psychological, involved in the dispatch and retrieval several days later of Paul's tweet. It is an ironic parallel. Just as a third party at Robin Hood Airport became unnecessarily concerned about a tweet that was not intended for him and of which he did not have the benefit of the full context, so did the judge become unnecessarily concerned about tweets not meant for her which she did not understand. She didn't appreciate how they were sent, when they were sent or why they were sent. To think she had the nerve to suggest that Paul must have realised the risk in what he was doing because he was an experienced user of Twitter!

Wednesday, October 19, 2011

Who Needs Human Rights? Part III - The Politicians

I promised a Part III to this series, so I suppose I'd better deliver. In Parts I and II we covered the #CatFlap  controversy and the role of the tabloids in misreporting the Human Rights Act. In this part, we examine the politicians and why many, particularly those in government, are not comfortable with the Human Rights Act as it stands. This Guardian piece by Terry Irvine says just about everything I want to say on the matter, but there is a bit more that I can supply. The Human Rights Act is an easy target. Attacking it is not nearly as controversial as it ought to be, thanks in part to the bad and self-serving media coverage.

There is a fairly straight forward reason why some government ministers, particularly in the Home Office, have animosity towards the Human Rights Act. It does indeed make it more difficult to deport foreign criminals and illegal aliens in some circumstances. These circumstances include those in which the deportation of the individual would be very likely to result in torture or loss of life. It should be pointed out however that there are other laws which reflect our obligations under various other treaties and conventions and which could prevent deportations under similar circumstances and for similar reasons.

The disparaging of the Human Rights Act by cabinet ministers is certainly nothing new and is not confined to conservatives. The Human Rights Act was enacted in 1998 by a fairly new Labour government eager for constitutional reform. Yet just ten years later in 2008, then Labour Justice Secretary Jack Straw expressed his distaste for the Act, describing it as a "villain's charter". This is of course rather interesting given that Jack Straw actually introduced the Act and was its chief architect when he was serving the government as Home Secretary. It is once again the issue of foreign deportation that is the cause for concern (emphasis mine):
He blamed "nervous" judges for refusing to accept assurances from ministers that such removals were in the national interest. 
"I fully understand that [Daily Mail readers] have concerns about the Human Rights Act," he said. "There is a sense that it's a villains' charter or that it stops terrorists being deported or criminals being properly given publicity. I am greatly frustrated by this. Not by the concerns, but by some very few judgments that have thrown up these problems."
Well I for one am very glad to live in a country where the government doesn't always get its way in the courts. This is a sign that things are as they should be. The concerns of government are very different from the concerns of the judiciary. Parliament provides the legislation for judges to apply, and judges apply that on a case-by-case basis using their skill and experience and taking many, many factors into account. The Home Office might feel that the deportation of a person is in the best national interest and give such assurances; however, it is incredibly insulting to the judicial profession to characterise the refusal to accept such assurances as nervousness. Oh and Jack, I think you meant to say "terror suspects" and "suspected criminals". Don't get me started on Jack Straw.

It is not the Human Rights Act that is to blame for the failure to deport terror suspects, but rather the cult of secrecy that prevents terror suspects from being tried openly in the UK. In order to try a criminal suspect in the United Kingdom, evidence must be presented and added to the public record. In some instances it is felt that the evidence is too sensitive to share with the public; often it is the manner in which the evidence was obtained that is the issue. The evidence may have been obtained through covert means that the government does not wish to compromise. Perhaps some evidence was obtained through enhanced interrogation techniques which are not strictly legal. This paper examines the Special Immigration Appeals Act 1997 and its compatibility with European Law. I note the following:
This system [special advocates] is designed to stop material that is sensitive for national security reasons from entering the public domain. The Government argues that it protects the methods of the security services by preventing the discovery of intercepts and undercover operatives, as well as protecting intelligence-sharing relationships with other international intelligence services.
Now, special advocates (security-cleared barristers who do not share sensitive information with their clients) are perhaps acceptable in cases of deportation. They would not be acceptable however in criminal trials because of Article 6 (right to a fair trial). Deportation is hence the easy option for the government. But perhaps the national security concerns are unfounded after all. Perhaps the methods of the security services are in fact already well known to our enemies. It is difficult for the public to gauge the necessity for such secrecy when the information is by its very nature secret. Whatever the case may be, it is clearly not the sole fault of human rights legislation that we are often unable to satisfactorily process terror suspects.

To conclude this posting, I'd like to return to the present day and the attitudes of the current government toward the Human Rights Act. One of the most ridiculous things I've seen recently on this subject was an interview that David Cameron gave to the Andrew Marr show at the start of the Conservative Party Conference in which he restated his agreement with Theresa May that the Human Rights Act should be scrapped and replaced with a Bill of Rights (which comes as no surprise really as he campaigned on it and wouldn't have had the leadership without it). His justification for this position is just laughable:
He also said he wanted to change the “chilling culture” created by the act. He cited an example of a prison van being driven nearly 100 miles to be used to transport a prisoner 200 yards “when he was perfectly happy to walk”. “The Human Rights Act doesn’t say that’s what you have to do. It’s the sort of chilling effect of people thinking ‘I will be found guilty under it’.
The Human Rights Act doesn't actually say that's what you have to do, but what the hell? People are confused about it so let's scrap it. Does confusion about what the Act provides suggest a problem with the Act itself? Why are people so confused about the Human Rights Act? Mr Cameron, please read Part II. Thank you. That Angry Mob article I link to above goes on to explain the real reasons why a prison van had to be driven 100 miles to transport a prisoner 200 yards. It turns out to be, and I am not making this up, due to the contractual obligations with a private transportation company. That's Tories for you.

Friday, October 7, 2011

Who Needs Human Rights? Part II - The tabloids

The tabloids do not like human rights. "Why?" I hear you ask. Because human rights get in the way of a juicy story. Companies such as Associated Newspapers Ltd (Daily Mail) and Newsgroup Newspapers Ltd (The Sun, The News of the World*) have a strong personal interest in seeing the Human Rights Act abolished. This is because these entities so often find themselves in court and subject to an anonymised injunction, a type of temporary gagging order, over some celebrity's Article 8 rights to privacy and family life which the Human Rights Act protects. It is no surprise then that these publications repeatedly misrepresent such cases, labelling the gag orders "super-injunctions" when they mostly are not. An actual super-injunction, as this type of gag order has been dubbed, is more restrictive than an anonymised injunction as it affects even those who are not party to the injunction. Roy Greenslade credits the Guardian editor Alan Rusbridger for coining the term in reference to that paper's inability to report on the Trafigura affair in September 2009.

With a so-called super-injunction, even reporting of the existence and details of the injunction itself would incur contempt. This is in addition to the facts or allegations that the injunction protects. Despite reports to the contrary, super-injunctions are now extremely rare. Only two have been granted since the landmark John Terry case in January 2010, according to a report by Lord Neuberger published in May 2011. Anonymised injunctions on the other hand, such as that obtained against Imogen Thomas and Newsgroup Newspapers Ltd, are quite common. The overwhelming majority of these cases involve blackmail threats. The report does acknowledge however that prior to Terry, super-injunctions were granted far too frequently, and that in some cases there was little incentive for the claimant to advance the case beyond the interim stage (a problem that has now been rectified by the decision in Terry v Persons Unknown). These super-injunctions are pre-trial interim injunctions that are designed to protect the integrity of the court's processes in cases where it is considered that media reporting of allegedly protected information (private or confidential) would obstruct the administration of justice at the pending trial. In paragraph 2.14 of his report, Neuberger sets out the difference between a super-injunction and an anonymised injunction as follows:
[A super-injunction is] an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and, ii) publicising or informing others of the existence of the order and the proceedings (the ‘super’ element of the order).
This is to be contrasted with an anonymised injunction, which is: an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.
In paragraph 2.16 of the report, he goes on to say "The inaccurate use of the term super-injunction to refer to anonymised injunctions, has not only led to a false view that super-injunctions are commonplace. It has also given rise to misconceptions as to how long super-injunctions endure. A claim that a superinjunction has been in place for a number of years adds credibility to the fear that a new form of permanently secret justice has arisen. Where, however, the injunction concerned is merely anonymised, and there is no prohibition on dissemination of the existence of the proceedings and order, such a claim is simply misleading."

Indeed! So you see, media companies hate super-injunctions and they want you to hate them too. In order to achieve this aim, they tend to refer to any case that gags them from reporting on a story as a "super-injunction". They tend to talk up the notion of secret courts interfering with open justice, but in reality the requirement from the Terry decision that super-injunctions and anonymised injunctions must generally contain a return date ensures that these orders are subject to review within a reasonable time frame and cannot in practice become permanent.

Turning once again to the Human Rights Act, we note that this is the United Kingdom's native implementation of the European Convention on Human Rights, a treaty which we are party to as an EC member state. The treaty established the European Court of Human Rights, which entitles any person who feels his or her rights have been violated by a state party to the Convention to bring a case before the Court. Judgements of the Court in favour of the claimant are binding on the States concerned, who are obliged to execute them. Having the Human Rights Act in place greatly improves the efficiency of our justice system by giving British judges a tool for applying the Convention jurisprudence to British cases. Without it such cases would have to be appealed to Europe at great expense and delay. It would be quite difficult, if not impossible, for a claimant to be awarded injunctive relief in time to prevent disclosure were it not for the Human Rights Act and the protection it affords to privacy. I believe this to be the single most compelling reason for newspapers to wish to cast the Human Rights Act in a negative light. Adam Wagner, a barrister specialising in human rights law, has published a series a blog posts detailing numerous incidents of mischievous human rights reporting.

The most recent example of HRA misreporting is the so-called "CatFlap" row which I wrote about in Part I. I can give no better example of this than the frankly scum-encrusted publication known as the Daily Mail. This was their lead story yesterday (6th October), claiming that in fact the judgement of which they had obtained a copy showed that Theresa May's statement was correct and Ken Clarke's was incorrect. As Adam Wagner once again demonstrates quite capably, this is complete and utter rubbish. [Oh, and as an aside, isn't it so classy of the Mail to reveal that not only was the Bolivian immigrant in question a shop lifter (though he'd not been charged), but he was also *gasp* gay! Completely irrelevant to the case of course, but sure to plant the right sort of suggestions in the mind of the typical Daily Mail reader.]

So yes, as far as the Mail are concerned (without providing any sources of course) the "Judge DID rule [the] migrant's pet was a reason he shouldn't be deported". The caption under a photo of the Home Secretary reads "Vindicated: Theresa May's comments on a man allowed to stay in Britain because of his cat have been proven correct". And they of course lay the blame with Article 8 and the Human Rights Act even though ultimately these had nothing to do with the decision to grant exceptional leave to remain. It is hard to understand how a mainstream publication can so repeatedly and so deliberately mislead its readers with complete impunity. I suppose that's one of the reasons we've gotten to the point where regulation of the press is looking very likely. But that's not going to help when politicians are also deliberately misleading us about what the Human Rights Act does and does not provide, which I will discuss in Part III.

*now defunct  :)

Thursday, October 6, 2011

Who Needs Human Rights? Part I - #CatFlap

Boy this CatGate / CatFlap thing has really gotten out of hand, hasn't it? In case you hadn't heard, a quick recap: Two days ago (4th October), the Home Secretary Theresa (I am not making this up) May gave a speech at the Conservative Party Conference in Manchester in which she criticised the Human Rights Act because of the difficulties that can arise from it when the Home Office wishes to deport someone. In this speech she made the following claim (emphasis mine):
"We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat."
The final example turns out to be one of the oft recycled myths propagated by opponents of the Human Rights Act, as Adam Wagner of The Guardian explains. Another person who realised that the Home Secretary's statement had no basis in fact was Justice Secretary Ken Clarke, who told the Nottingham Post that same day:
"It's not only the judges that all get furious when the home secretary makes a parody of a court judgment – our commission who are helping us form our view on this are not going to be entertained by laughable, child-like examples being given."
This has predictably erupted into a political row between the two ministers, one of whom has been forced to apologise. That one unfortunately is the one who, as it turns out, was correct. The deportation of this individual was not disallowed because of his relationship with a cat, but because of his strong cohabiting relationship with a British citizen, evidence of which was only partly made up of their joint ownership of a cat. The unnamed appellant in this immigration case was represented by solicitor Barry O'Leary of Wesley Gryk Solicitors LLK, who felt impelled to issue a press release today clarifying the case. In his release, O'Leary states that his client was "not a foreign national prisoner nor had he been charged with or convicted of any offence." It turns out that ultimately the appellant was granted exceptional leave to remain in the United Kingdom against the objections of the Home Office because that office failed to apply a policy that had been withdrawn but which was in effect for the period of time under consideration in the case. That policy is DP3/96 of the UK Border Agency, which as O'Leary describes it stated that "individuals who had been in a relationship with a settled person for in excess of two years, and no immigration enforcement action had been take against them, could be granted exceptional leave".

It is true that the first appeal to the Asylum and Immigration Tribunal of the Home Office consideration was on Article 8 grounds (right to family life) and heard much evidence of the strong family ties of the appellant with his partner and that this evidence included some mention of their jointly owned cat; however, that fact alone was not the reason for the successful appeal. In the original decision by Immigration Judge Mr J R Devittie, he states in paragraph 12 (emphasis mine, hat tip to for the PDF of the judgement):
12. I do not consider that it would be reasonable for the appellant’s partner to move to Bolivia to live with him. There are several considerations that justify this conclusion. The appellant’s counsel addressed these matters in his submissions. The most important perhaps is the condition of the appellant’s partner’s father. The evidence of this appellant’s partner and his siblings is that their father is in a condition that he is not expected to recover from. They stated that a family decision has been taken to give their father collective support as a family and that support that the appellant’s partner would give is an integral part of that effort. It would be distressing to the appellant’s partner’s [sic] if he were to have to leave the United Kingdom having regard to his father’s condition.

The original appeal was granted on Article 8 grounds (ECHR as reflected in the Human Rights Act); however, in paragraph 17 the judge goes on to "take into account that the appellant appears to meet the requirements of policy DP3/96. In particular, his relationship and cohabitation predates enforcement action by two years."

The original appeal was granted on Article 8 grounds, however the case was ultimately decided by Senior Immigration Judge Gleeson in a further appeal. In his three page decision (ht David Allen Green), Judge Gleeson found that Devittie had acted properly in allowing the appeal because contrary to the arguments presented by the Secretary of State, DP3/96 did in fact apply, a position that was accepted by the Home Office Presenting Officer. Gleeson's decision supersedes Devittie's and so the Human Rights Act, though initially cited, played no part in the granting of leave to the appellant.

Why is this case important? It is important because it is only one of a number of cases that have been misreported in the media and by politicians in recent years with the aim of disparaging the Human Rights Act, as I shall explore in Part II.

Wednesday, September 14, 2011

We need to be careful of restricting social media

Johnnie Melfour, a sixteen year old man from Driotwich, has today been convicted of trying to incite a riot on Facebook. I can't say I am familiar with the case, though I'm sure Matt Flaherty will be all over it soon – but one thing that did prick my interest was this, taken from the BBC's coverage on their news website...

“Chairman of the bench, Paul Vaughan, said the public needed to be made fully aware of the "legal perils" of the "unfettered use" of social-networking sites. “

That's a very interesting position he has arrived at – what does unfettered mean? How must we use social-networking sites like Facebook and Twitter – what exactly are the rules?

Freedom of Expression is supposedly a right that we all enjoy here in Britain, and yes, it is true to say that with rights come responsibilities. We members of the public have to be careful how we exercise these rights, but it is also essential in a democracy that parliament is equally careful in how it restricts them. We can't have things left up to individual judges, or we end up with the utter farce of the Twitter Joke Trial again... If it is parliament's intention to restrict what we can do or say online, then there should be a properly visible, comprehensive debate in parliament between our representatives, conducted in the open so that we might hold them to account. Anything else is a sham.

Make no mistake, our politicians are not afraid of lumps of concrete or petrol bombs – they have police forces for dealing with issues like that. What the politicians fear in the public's hands are the far more dangerous weapons of truth, and the means to openly communicate it. Social media are enabling, empowering tools for the public – and we can't afford to allow them to be subject to arbitrary censorship, either through direct actions or through intimidation.

My message to the politicians and judiciary in our country then is succinct where social media are concerned – either state your case openly or back off.

If we allow the unregulated, drip drip censorship of the people to continue, then we are only going to have more pages here on this blog, and more charades like the Twitter Joke Trial.

Incidentally, I've personally met both high profile politicians and Mr. Paul Chambers, the defendant in the Twitter Joke Trial. Seriously, I'd rather have Paul in parliament than almost any of the current lot any day of the week, and twice on Tuesdays!

Thursday, September 8, 2011

Ken Clarke wants to remove the automatic right to a lawyer upon arrest

There are a lot of topics I wanted to write about before, but this one that caught my eye yesterday has taken precedence. The Guardian published a human interest story about duty solicitors that dropped a bit of a bombshell for many who are interested in the rights of suspects. It revealed that the Justice Secretary, Ken Clarke, has tabled a motion announcing that the UK will opt out of an EU directive guaranteeing access to a lawyer upon arrest. A lawyer friend of mine questioned whether this was a misprint, and several of us investigated what this might be all about. It turns out that this is indeed true, and the reasons arise from a new legal aid bill under consideration that replaces the automatic right to representation on arrest with a new system of means testing and red tape before a suspect in custody can qualify for public funds. Section 12 of the Legal Aid, Sentencing and Punishment of Offenders Bill sets out the new provisions.

In a nutshell, instead of a suspect in custody being quickly provided with publicly funded legal advice upon arrest, s/he will have to make a written or oral representation requesting it, with a determination made by a civil servant. This is set out in clause 12(6), which states:
Regulations under subsection (5) may, in particular, include——
      (b) provision permitting or requiring applications and determinations to
      be made and withdrawn in writing, by telephone or by other
      prescribed means,
So basically, you're arrested and you're poor, yeah? Unless you've been arrested before, you will probably not understand what is expected of you and what your rights are when detained at a police station. You are quite possibly not in a very good state of mind. You are hopefully told that you can request legal advice. You are then expected to fill out a form and send it off to some civil servant or speak on the telephone (hopefully not your one phone call), and wait for that civil servant to take some amount of time to decide whether you qualify for legal aid. In the meantime you have no legal representation. That doesn't sound very good to me. What if it's the middle of the night? What about weekends? Bear in mind that you are at this point entirely innocent in the eyes of the law.
From the Guardian piece:
Nearly 1.5 million people are arrested every year. "Many will never have been locked up before, won't know how long the police can keep them, and have no idea what to do in an interview," says Professor Ed Cape, a law professor at the University of the West of England, and a Pace expert. As the academic explains, the right to silence was effectively abolished in 1994 and a failure to tell the police relevant details that may not come up in court until months or years later can serve as evidence of guilt. "However well the police behave, police stations are worrying, even frightening, places," says Cape. "The right to legal advice is now more important then ever, but with the planned cuts to legal aid, it's under threat like never before."
Lawyers and bloggers such as The Defence Brief have been criticising the new legislation for months, though it's managed to mostly escape my attention until now. The Defence Brief argues that this type of legislation likely serves two purposes: "a) to reduce the legal aid bill by making it harder to solicitors to claim; and b) to increase the conviction rate by reducing the level of representation suspects receive." Worse than that though, these provisions will probably end up costing more by pushing up the administrative costs of funding legal aid and giving rise to lengthier legal arguments in court that certain interviews should be excluded because they were not properly conducted. It may even result in reduced conviction rates as more police interviews are likely to be excluded.

So it probably won't even achieve its stated objectives. Why would we want this legislation that effectively removes one of the most important safeguards in the criminal justice system? Simply put, if we can't afford to provide free legal representation when suspects are arrested, then we can't afford to arrest people. To place such obstacles in the path of access to basic legal advice is to undercut the fundamental presumption of innocence. I've said this a bazillion times; I'll say it again. The primary duty of law enforcement and the criminal justice system is to protect the innocent. Every single person who is arrested, no matter how persuasive the evidence, is innocent until a court pronounces guilt. Every single person is entitled to understand how police interviews work and how to avoid incrimination. Most people, especially those who regard themselves as innocent, will not know what to do when arrested. Everyone needs protection. Everyone deserves an advocate.

Wednesday, September 7, 2011

Met Police impose random stop & search all across London

I was already quite hacked off when I'd identified this subject of a London-wide order imposing stop and search with the power of section 60 of the Criminal Justice and Public Order Act 1994. This was in the context of the Notting Hill Carnival at the end of August. However, when another order was issued within a week to coincide with an EDL demonstration in Tower Hamlets, I became incensed. I'll explain why. This power is discussed on the Metropolitan Police Stop and Search FAQ, which perhaps needs updating now. Here's how it is described (emphasis is mine):
Section 60 Criminal Justice and Public Order Act 1994, gives police the right to search people in a defined area at a specific time when they believe, with good reason, that: there is the possibility of serious violence; or that a person is carrying a dangerous object or offensive weapon; or that an incident involving serious violence has taken place and a dangerous instrument or offensive weapon used in the incident is being carried in the locality. This law has to be authorised by a senior officer and is used mainly to tackle football hooliganism and gang fights.
As we can see from the general advice here, a section 60 order is designed to cover a specific area (the Act calls this the 'locality') at a specific time. An order can be up to 24 hours if authorised by an inspector or 48 hours if by a superintendent. The decision of the Metropolitan Police to treat an entire city (the nation's capital no less) as a locality for the purposes of this provision is cause for grave concern and makes the wording of the Act appear quite ridiculous. It certainly would be reasonable to imagine that on any given day in Britain's capital city, there will be at least one act of serious violence or one person carrying a dangerous or offensive weapon somewhere. Indeed, the larger the area prescribed in the authorisation, the greater there is likelihood of serious violence. The police might as well just authorise a section 60 order across London every day!

There has been a Freedom of Information request for the written authorisations (the Met Police publication is no longer available). A similar request had already been made in relation to the Notting Hill Carnival order. The explanation for the decision goes as follows:
A Section 60 and 60 AA authority has been put in place across London. The decision has been taken to support the pan London policing operations to keep the capital as safe as can be. The rationale is based on current police intelligence and in light of the disorder that was seen in London during 6 - 9 August 2011
Hmm, no. Sorry, that doesn't cut it. The riots are a convenient excuse. A city should not be regarded as a locality for the purposes of that Act. To do so makes a mockery of it. Even the same publication makes a mockery of itself. Though I can no longer find that publication, I had quoted from it and it's almost exactly the same as the advice given in the FAQ, to wit:
Section 60 Criminal Justice and Public Order Act 1994, gives police the right to search people in a defined area at a specific time when they believe, with good reason, that: there is the possibility of serious violence; or that a person is carrying a dangerous object or offensive weapon; or that an incident involving serious violence has taken place and a dangerous instrument or offensive weapon used in the incident is being carried in the locality. This power has to be authorised by a senior officer.
Here's what really gets on my wick about this citywide use of stop and search. In order for this legislation to be reasonable, a person needs to be able to avoid the area to which the order has been applied. Article 8 of the European Convention on Human Rights, which is implemented in Britain as the Human Rights Act 1998, protects our right to privacy. This would prohibit suspicionless searches under normal circumstances. The trouble with defining an entire city such as London as a locality is that for those who live and work in the city, there is no escape. If you look at a section 60 authorisation form (I can't find one at the minute), you can see the suggestions given to help specify the locality include such language as "street names". I wonder, did the authorising officers simply write "London" in that space? UPDATE: Here is an authorisation form courtesy of @piombo.

Unfortunately it seems that this provision in the Act is just another of these poorly worded disasters that can be manipulated by an authority seeking to expand its powers. This was hinted at in 2003 when the Metropolitan Police Authority published to its members further information about section 60 of the Act. See paragraph 7 (emphasis mine):
7. The term ‘locality’ is not defined, however the authorising officer should not set a geographical area that is wider than necessary for the purpose of preventing anticipated violence. The officer should take into account factors such as the nature and venue of an anticipated incident, the number of people who may be in the immediate area of any possible incident, their access to surrounding areas and the anticipated level of violence. If the area specified is smaller than the whole force area, the officer giving the authorisation should specify either the streets which form the boundary of the area or a divisional boundary within the force area.
We can see that the MPA were aware that the Act did not define the term "locality" and hinted that a locality could be specified so that it encompasses the whole force area (such as London, for example). "Should not" - don't you just love that type of language? I can't understand how this was allowed to go unchallenged, but there it is and here we are. I think it's a disgrace and I'd really like to see this view challenged in court. The clear message I'm getting is that ever since the UK riots of August, the people (of London anyway) cannot be trusted to assemble. That's bullshit. The designation of an entire metropolitan area as a locality for stop and search cannot be what Parliament intended and it should not be tolerated.

ps - Sorry for the lack of updates. I've been a bit ill and frankly overwhelmed with all the things there are to write about. Had to just get over the inertia and get something down. 

Saturday, September 3, 2011

The Stepping Hill Prosecution

There is currently a huge investigation under way at Stepping Hill hospital, Stockport, into how saline solution came to be contaminated with insulin. The contamination is thought to have led to four deaths, and the police are now also considering potentially forty victims, although it should be stressed that not all of those people died. Still, this is of course an incredibly serious matter, and it is absolutely essential that the cause of this contamination is found and dealt with – particularly if it is the result of deliberate tampering.
Early in the investigation a staff nurse at the hospital, Rebecca Leighton, was arrested and then eventually charged with :
  • Three counts of criminal damage intending to endanger life, and
  • Three counts of of criminal damage being reckless as to whether life would be endangered.
She has spent the past six weeks in prison, but yesterday was dramatically released when the Crown Prosecution Service decided to drop all charges against her. In fact, Sky News even have a statement from the CPS prosecutor, so let’s have a read of that shall we?

CPS prosecutor Nazir Afzal said: “We have conducted a review of the case with senior police officers and sought the advice of leading counsel on whether it would be right to keep Rebecca Leighton in custody while investigations are continuing.

“The advice we have received is that on the evidence currently available there is not a case in law which could proceed and that the charges should be discontinued.
“As this is very much a complex investigation with lines of inquiry still being followed, there is the prospect that further evidence might emerge which the CPS would then consider alongside the evidence gathered so far.”

Radio Four have reported that the charges were made out under the “Threshold Test”, the CPS guidelines for which can be viewed here. In a nutshell, the idea is that if someone presents a substantial bail risk, and not all the evidence is available at the point in time where the suspect would have to be released from custody by law, then a charge can be made, allowing the suspect to be held in custody.

Now, whether the Threshold Test has been applied correctly is something I am not in a position to assess, being neither legally trained nor privy to the details of the investigation. The guidelines make it clear however that this test cannot be used unless “there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case an application to withhold bail may properly be made.” That being the case, were I in Miss Leighton’s position, I would be seeking justification of the perceived flight risk here. After all, bail is a right, and there have to be identified reasons behind a decision to deny it. Certainly there have been no details published that would lead me to consider Miss Leighton a flight risk…

Something else that must be considered is that the Threshold Test cannot be used simply in the vain hope that further evidence might turn up – the prosecutor must have in his/her mind identifiable further evidence, and not merely speculative. So, at some point (after the investigation concludes), I think Miss Leighton needs to be challenging just what this identifiable evidence might have been. After all, she has spent six weeks in custody as a result of it.

Another troubling aspect of the case is the numbers. There have been six charges, relating one presumes to six separate acts given the specific charges (the two types of charge would contradict each other where they applied to a common event). The investigation can’t apparently get ANY of these charges to the point where they have a case in law.

What the hell has happened to the presumption of innocence in this country, and how can the criminal justice system be saved?

Like most impartial observers, I always presumed that the criminal justice system would be professional, rigorous, and hold itself to the highest possible standards as it goes about it’s business. After all, we’re talking about people’s lives. However, on the two occasions that my interest in a case has resulted in my actually attending it, I have been horrified by the conduct of both prosecutions.

We have to presume, in the absence of further evidence, Miss Leighton to be innocent. How is Miss Leighton supposed to resume her career now? Well, I suspect the truth is that this is not something we’ll have to face immediately, as the NHS will doubtless want to conduct their own investigations, as of course is entirely proper under the circumstances. But, assuming that she is cleared (and let’s remember here that the CPS have admitted that the “evidence” is such that they do not even have a case in law, still less one with a realistic prospect of a conviction), what then? Will her managers really trust her? Will her colleagues? her patients?

Justice. Really?

Oh, and finally, my thanks to Matt for the invitation to contribute here. I suspect this will not be my only post...

Thursday, September 1, 2011

New "Prevent" policing strategy expects universities to spy on 'vulnerable' Muslim students

The "underpants bomber" Umar Farouk Abdulmutallab is a Muslim who studied at UCL; therefore, all Muslims studying at universities should be monitored in case some of them turn out to be vulnerable to extremist ideology. This seems to be the thinking behind the new anti-terror guidance being issued to universities by police officers implementing the government's revamped Prevent strategy. The Guardian reports that "University staff including lecturers, chaplains and porters are being asked to inform the police about Muslim students who are depressed or isolated under new guidance for countering Islamist radicalism." The guidance specifically asks staff to identify Muslim students who fit one of a number of "at risk" profiles such as showing signs of depression. Many university staff have expressed disquiet about plans that seem to infringe students' civil liberties.

Indeed, I'd say that at best this is an invasion of privacy. Going beyond that, it is also a breach of confidentiality in at least two respects: 1) unauthorised disclosure of the one's religious background; 2) unauthorised disclosure of a medical condition. This is bad enough, but also consider that we are talking about students who have done nothing to arouse any reasonable suspicion. We are talking about students who have not been charged with or even suspected of any crimes. We are talking about students who are simply vulnerable, a measure which relies heavily on some staff member's judgement. It gets worse.
Universities that agree to the renewed version of the scheme are trained to refer "at risk" students to Prevent officials. The student is then monitored by a panel including a detective from Scotland Yard, who assess any potential terror threat. The student is not made aware at any stage that they are under investigation.
No knowledge that one is under suspicion and surveillance. No recourse whatsoever. Plenty of opportunity for false positives. Plenty of scope for jumping the gun. This is yet another example of the prevailing attitude in government that it should be doing everything within its power to thwart terrorism, as though terrorism is the biggest problem this country is experiencing and we can't afford to waste a moment. This attitude is instilled in the public and it is amplified and fed back to the authorities in what I like to call the hysterical feedback loop. Whenever the police fail to anticipate and thwart some attack (which they inevitably will because security cannot be guaranteed absolutely) they complain about the need for greater powers, which they are then given. But this is a con. Acts of terrorism are extremely rare. They can certainly happen and they do occasionally, but there has only ever been one successful terrorist attack in the United Kingdom employing the Islamic extremist modus operandi of suicide bombing.

This of course occurred on the 7th of July 2005. 52 innocent people were killed with over 700 more injured. There have been a handful of other attempts which have been unsuccessful. Either the threat is not as serious as we are being led to believe, or the police and intelligence services are doing a fairly impressive job. Whichever way you look at it, it's hard to deny that terrorist attacks in Britain are not nearly as prevalent as they were late last century when the perpetrators were mainly Irish republican dissidents. We seemed to deal with it much better then.

I have little doubt that there are people in this country or outside, probably of the Islamic extremist variety, who as I type right now are plotting some new and yet greater atrocity against Britain or one of its allies. It is the job of the police and the intelligence services to identify and to stop these people who are in fact engaging in criminal activities. It is not their jobs to snoop on ordinary people fitting particular profiles just on the off chance they might one day become receptive to ideas of mass murder. The reality is that very few would. The ones we hear about represent the tip of a very large iceberg whose massive bulk of normal, sane humanity remains happily submerged in anonymity. This is as it should be. The danger of enticement can be mitigated in other ways that do not breach Article 8 of the European Convention on Human Rights.

If people are vulnerable to extremist ideas, then it is the proponents of extremist ideas that we should be chasing down. We should challenge these ideas vigorously and openly. We should build strong moderate support bases at universities to combat the pressures bearing down on disaffected Muslim students from dangerous groups. As suggested by the Federation of Student Islamic Societies, we should engage with Muslim students instead of spying on them. Being Muslim is not a crime and neither is being depressed or estranged from one's family. British Muslims need to know that as human beings and members of British society, they enjoy the same status as their neighbours. They need to know that they will not be treated any differently or trusted any less simply for identifying with a religious faith. I really believe that would help to combat terrorism much more effectively than this cack-handed Prevent strategy being bandied about now.

#TwitterJokeTrial and related posts migrated from Flayland -

Hi. I've just finished migrating all of my old personal blog entries pertaining to the Twitter Joke Trial and other civil liberties matters. These can now be found here in Arsehole Justice, which seems to make sense. Consider any articles older than August 2011 to have been migrated in this way. The original articles still exist in their previous locations, but commenting is disabled and all links have been brought forward.

Your mission, should you choose to accept...

Hello there. We really need more contributors. There are lots of things we want to write about, but only so much time. If you would like to contribute to Arsehole Justice, please let us know and we'll discuss the ground rules. Here are a few topics we would like to explore, along with some helpful links:

Unite Against Fascism doesn't understand freedom of expression. This is not exactly an issue of justice, but it illustrates a blind spot in justice and public opinion to do with political correctness. All too often this sort of thinking results in people being prosecuted or persecuted for "unacceptable" speech.

"Prevent" officers expecting universities to spy on disaffected Muslim students.!/flayman/status/108470225162350592

Met Police issue Criminal Justice and Public Order Act section 60 blanket orders for all of London over 48 hours of Notting Hill Carnival. This is a ridiculous stretch of legislation allowing random stop and search designed to deal with specific localities, now apparently covering entire cities.

A mother pleads not guilty to Serious Crime Act charges in magistrates' court, claiming her BBM message was a joke. Magistrates still seem to think she should be indicted. This is, I believe, the first case of its kind where the defendant entered a plea of not guilty at the arraignment.

Coalition government U-turns on scaling back emergency terror laws.

...And really, anything else you think is worthy of a post if we agree. We may cover one or more of these topics in the meantime. Hope to hear from you. Let's show these arseholes that we mean business!

Tuesday, August 30, 2011

Head of Humberside Police wonders why justice isn't normally so swift

I read an article in The Independent today that quoted Tim Hollis, Chief Constable of Humberside Police. In the wake of the worst riots the UK has seen in decades, he had this to say:
"We really did see rapid and robust justice with offenders being arrested, charged, put before the courts and sentenced in days.

"This undoubtedly contributed to taking the momentum out of the disorder - but for the police and public it did raise the question as to why cases take so long to get to court in the normal course of events."
If Mr. Hollis doesn't mind terribly, I'd like to take that one. Although defendants have a right to a speedy trial, they also need time to prepare an adequate defence. In fact, they need time to consider a defence. Defendants are innocent until they have been proven guilty as a result of a legal process that does not benefit from being rushed. The swift justice we've seen following the UK riots has impeded some people's abilities to defend themselves properly. This is dangerous and should absolutely never be the norm.

In some cases we saw defendants hauled before the magistrates within a couple days of being charged. People who used social media to comment ironically on the riots were accused of committing the serious crime of incitement. One 17 year old young man was charged with an offence under the infamous section 127 of the Communications Act 2003 for sending a menacing message via a public electronic communications network for a Facebook update and subsequent conversation that resulted in the offending message being deleted after 20 minutes. Had there been more than two days between the charge and the hearing, he might have come to realize that he did not have to enter a guilty plea. That the message was menacing in its context was not disputed. That the defendant had an awareness of this was also not disputed. There was no time to consider an adequate defence.

Hollis then questions "why imprisonment is not used more effectively at an early stage for those who make the lives of the law-abiding a misery on a more routine basis". Again, a person is law-abiding until proven otherwise. This is true even of people who have offended in the past. It's the job of the magistrates and professional judiciary to determine whether bail should be granted. They follow guidelines. I'm sure police would like to see speedier justice in most cases. It makes their jobs easier. However, that's not what justice is for. The administration of justice is designed to protect the innocent, first and foremost. That's every man woman and child, regardless of suspicion or evidence, until the justice system pronounces a verdict. Punishing and rehabilitating the guilty comes second and by a long way. Perhaps Hollis is commenting on the failure of custodial punishment to serve as a deterrent. I can't quite tell what he's trying to say.

To be fair to Chief Constable Hollis, here is the piece he wrote in the Yorkshire Post today that was quoted by The Indy. It is not a bad piece. The tone is overall positive and I agree with much of what he has to say. Unfortunately, his paragraph fourteen ruins it for me. If the swift administration of justice served to take the momentum out of the riots, as he suggests, then I suppose it went some way toward fulfilling the primary duties of the police and the courts to protect the innocent. It was unfortunately full of errors and there are many successful appeals expected. There has already been one successful appeal overturning a custodial sentence. This should never be considered business as usual. That would be arsehole justice.

Thursday, August 25, 2011

Shy 19 year old woman of good character could go to prison. LMFAO!

If you've read some of our recent posts then you may be familiar with the case of 19 year old Hollie Bentley from Wakefield, West Yorkshire. You may have also read or heard about the case in the news. If you did, then you would not have seen what is perhaps the most crucial piece of evidence in the case. The papers have been reporting that Bentley wrote the text "Who's up for it?" in some way referencing a Facebook event she'd created called "Wakey Riots". What the papers are not reporting for some reason is that at the end or her offending remark, she wrote "LMFAO". In case anyone is unaware of this particular text-speak, LMFAO is shorthand for "laughing my fucking arse off". The only place I've seen this reported is here, and that's only because the author was at the hearing and heard the evidence read out.

I don't know why news outlets would choose not to print that little nugget, but I do know it adds nuance to the story. Here's what LMFAO means to me in this context. Hollie Bentley believes, quite rightly I suspect, that the notion of a riot on the high street of Wakefield, West Yorkshire is absurd. That's the crux of the joke right there. It may have other hidden meaning. For example, it is boldly laughing at a prospect that is terrifying, which is a sort of affected bravado. I suppose we'll have to ask Hollie Bentley what she meant when she wrote that. She should do a little soul searching and think carefully about the answer. Her personal liberty depends on it. LMFAO! :(

Wednesday, August 24, 2011

Social media turns everybody into wankers.

Social media turns everybody into wankers.

It's as simple as that. As soon as anybody gets involved in social media, they immediately turn into hopeless, irretrievable dickheads. They lose about 50 IQ points, and begin delivering the most ill considered and moronic opinions.

I can give you some examples from my current favourite social network, Twitter:

Duncan Bannatyne famously called another user a (sic) "pheadophile" for daring to suggest that smoking in one's car with one's children in it isn't the worst crime known to man. This is an intelligent, successful man. Something's gone wrong in his brain there. Surely?

And what about Tory councillor Gareth Compton who posted:

"Can someone please stone Yasmin Alibhai-Brown to death? I shan't tell Amnesty if you don't. It would be a blessing, really."

Honestly. What a wanker.

Or Paul Chambers

"Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!!"

Blowing up the airport isn't going to help your flight to leave on time, is it, you dozy twat?


And then there's me. Earlier today, one of my Twitter followers asked me for advice on how to stop his son picking at his skin all the time.

I suggested that his son take up smoking.

I am a dickhead. It's right there in black and white on Twitter if you need the evidence.

But. Has any of the above really done anybody any harm? There might be one or two bruised egos, or offended Twitter friends (sorry Adrian!) - but nobody actually died, right? Nobody got hurt? Sticks and stones, and all that.

We're currently looking at a whole bunch of prosecutions brought against other social media users who posted some really dumb shit on Facebook in response to the riots. In EVERY SINGLE CASE so far, nobody actually got hurt as a result of their stupid posts, and no crimes were committed as a result of those posts. In the majority of cases so far, it's pretty clear that the poster was making a bad joke.

So we're perhaps just looking at another collection of social media wankers who happened to stray into the firing line of a political hot potato.

But the point is: their conversation isn't any different to the content posted by 90% of the social media users out there. As a social media user, we see content like this, and we say to ourselves, "Oh, just another wanker like me".

And now the judicial system is weighing in on social media, and as soon as they've got involved, they've become wankers too. They've lost 50 IQ points, and started talking just as much bollocks as the rest of us.

So the obvious defence to anybody faced with a charge under the Serious Crimes Act or the Communications Act in the coming weeks is:

"Social media turned me into a wanker. And now it's turning you into a wanker as well. Your honour."

Apologies for linking riot cases to #TwitterJokeTrial and #IAmSpartacus

I must apologise to the Paul Chambers defence for the use of some hashtags in my attempt to raise the profile of some post riot Facebook cases. It had not occurred to me that linking these events could damage Paul's case; however, it has been pointed out that this is a possibility. Winning the Paul Chambers appeal is the most important thing right now. It may help to quash these other convictions, even those under the Serious Crime Act. I have two motivations for raising the profile of these other cases: 1) people are going to prison, and that's hard; 2) to my mind, each new conviction that goes unchallenged increases public acceptance. Nevertheless, I shall now respectfully refrain from using the #TwitterJokeTrial and #IAmSpartacus hashtags to advertise these cases. Please follow suit.

Hollie Bentley (Facebook Riot Girl) - case referred to Crown Court

The AJs just keep on rolling in. Today at Wakefield Magistrate's Court in West Yorkshire, a young woman named Hollie Bentley was told that her charge under the Serious Crimes Act would be heard before the Crown Court. On the 9th of August (why do all these seem to be from the same day?), the 19 year old allegedly created a Facebook event called "Wakey Riots" set to take place over the 13th and 14th of August and referred to it either in the description or on the event wall with the text "Who's up for it LMFAO." Clearly a joke. It was nice of her to schedule the riots at the weekend. Very convenient. There were of course no riots in Wakefield. Ms Bentley has yet to enter a plea. A skeletal news story on the BBC web site suggests she has not admitted to performing the act of which she is accused.

My friend Matt Bradley was at the hearing and he has provided this write up: I am bemused. As reported earlier, David Glyn Jones, of Glasinfryn, Bangor, Gwynedd created a similar Facebook event and was charged not under the provisions of the Serious Crime Act but under the much less serious provisions of the Communications Act 2003. Setting all the difficulties with the Communications Act aside, I am at a loss to understand how the CPS felt they satisfied the evidential stage of the Full Code Test with this case. The relevant Serious Crime Act provisions (sections 44-46) impose a significant burden to prove intent, as befits the seriousness of the crimes. I think it would be quite difficult to prove intent here. Nevertheless, it seems the evidential stage has been made out, as a magistrate has referred the matter on. The magistrate stresses the seriousness of the charge, saying "people died in the riots." This is true; however, it is also quite immaterial. The clear intention to incite a riot must be proven. It is not enough that a serious disturbance is a foreseeable consequence of such actions. One wonders whether this would have been referred to the Crown Court had Ms Bentley entered a plea of not guilty.

On the matter of the Serious Crime Act versus the Communications Act, Matt Bradley suggests that the difference may come down to the setting of a place and date for a disturbance to occur, which is the sort of functionality that a Facebook event provides. It's possible that Glyn Jones' story has been misreported and instead of an event, he chose a page or a simple wall post. If this is the distinction that the CPS are making when charging with a serious crime, then it is at best extremely naive. A riot is an event, quite clearly. When a young lady (or man) sees events going on around or near her that are frightening and hard to believe, she might deal with those events by making a joke out of them in order to make them seem less scary and regain a sense of control. If I were to act out in this way on Facebook, I do believe that I would use an event as it is the most apt tool for the job. And of course, the event encourages (or perhaps even forces) one to set a date, place and time. Hollie Bentley almost certainly did create the Facebook event that has gotten her into so much trouble. She also quite clearly meant it as a joke. For goodness sake, she wrote "LMFAO"! How many more of these miscarriages of justice will we sit here and watch as they are handed down? I am not in any position to give anyone legal advice, but it seems to me that Hollie Bentley had better plead not guilty, or else she will be laughing her effing arse off in prison for sure.

Tuesday, August 23, 2011

Another Facebook related Communications Act conviction. North Wales

I will depart from cynicism just to say that I've never been more afraid for the health of free expression in Britain. This post is on the long side, but I urge you to read it fully as it explains many of the problems encountered with the application of the Communications Act to broadcast style internet communications. A 21 year old man has been convicted in North Wales of an offence under section 127 of the Communications Act 2003 and sentenced to 4 months in prison for a Facebook update that was live for 20 minutes. It has been reported here <> and here <>. I have sent a query to CPS Wales seeking information about the nature of the prosecution.

Unfortunately in this case it seems that someone (a former coworker) was concerned and notified her supervisor. Former coworker? Notified her supervisor? I don't get it. Perhaps there's a grudge. At any rate, that would serve as evidence that someone was menaced; however, the Communications Act 2003 s127 does not require that any person is actually menaced (or grossly offended, etc). It does not require that a message is even received. This is through a precedent that has required the prosecution in the Twitter Joke Trial to discharge a narrow burden of proof of intent to commit the offence. The precedent comes from a case before the House of Lords in 2006 called DPP v Collins, which dealt with nuisance telephone calls and voice messages. Section 127 of the Communications Act is unfortunately badly worded, in that in and of itself there is no burden of proof of intent, hence the reliance on case law. Unfortunately the remarks of one of the Law Lords has set a very low threshold for proving mens rea (guilty mind, intent). I explain this in a post from February which I quote below:

DPP v Collins sets out a low threshold for both the actus reus and the mens rea. The act is committed so long as a qualifying message is sent via a qualifying public electronic communications network. It does not matter whether the message actually elicits the reaction in a recipient of being regarded as grossly offensive or of an indecent, obscene or menacing character. It would not matter in fact that the message is not received by anyone at all, except insofar as it is reported to the relevant authorities. The act of sending is sufficient. For mens rea, the Lords have also defined a strangely low threshold. While the Lords recognise that it is essential to examine any message within the context of a fair and just multi-racial society and to recognize that the meaning of a message can be quite different from its literal content, it is only necessary that the sender at the very least be aware that the message is couched in terms likely to be regarded as grossly offensive or of an indecent, obscene or menacing character.
So unfortunately while DPP v Collins provides the necessary burden to prove intent, it severely scuppers the defence by removing the requirement that a message is actually received. It sets out the need to look at a message in context, but this is of little help as it has been interpreted very broadly. It requires mens rea, but only in a very narrow sense. Paragraph 11 of Lord Bingham's opinion is where we get into trouble:

"...On the other hand, a culpable state of mind will
ordinarily be found where a message is couched in terms showing an
intention to insult those to whom the message relates or giving rise to
the inference that a risk of doing so must have been recognised by the
sender. The same will be true where facts known to the sender of a
message about an intended recipient render the message peculiarly
offensive to that recipient, or likely to be so, whether or not the message
in fact reaches the recipient...."

Now, this intuition may have made sense where the facts of the case concern a telephone call or voice message, the difference being that the communication is one-to-one and there is a recipient in mind. It is however completely inappropriate when applied to broadcast style messaging as it works in internet social media, which is more like publishing. There's a lot more I could say about this, but I've said it all before. It only takes a bit of time examining the implications to see how dangerous this law is, how chilling to online free speech. People are committing "crimes" that they are not even aware of. Remarks that would be fine if made down the pub are prosecuted when published on Facebook or Twitter. Although it has yet to happen, similar remarks within a blog entry would also fall prey to this law. This has to stop. It is my mission and I won't rest until the Communications Act can no longer be used to dispense Arsehole Justice.

Thursday, August 18, 2011

Speedy prosecution of Facebook teen means no time for decent defence

I am so angry about this that I don't even know where to start, so I'll just start. I may need to actually restrain myself. *Deep breaths* A case was brought before the Magistrates Court in Bury St. Edmunds, West Suffolk last week concerning a 17 year old boy who posted an update to Facebook that has been viewed as an invitation to start riots. I knew about this case when I saw it written up in the Guardian a few days ago after sentencing. The sentence was a 12 month ban from all social media and some other non-custodial terms. What was not immediately apparent to me when I read that article was that the youth was charged under section 127 of the Communications Act 2003 for sending a menacing message. This is the same charge under which Paul Chambers was convicted and which he is still appealing in what has become known as the Twitter Joke Trial.

The Twitter Joke Trial was a real "red pill" moment for me. The police and prosecution handling of the case was so obviously misguided to me that I couldn't help but speak up. I have been an early campaigner to have the charges dropped and then to have the judgement overturned. I am now a self professed civil libertarian with a particular interest in free speech. It is sometimes difficult to communicate to people the dangers that cases like Paul Chambers' place us all in. Difficult, because people often can't see beyond the facts of the case at hand. I'll delve into the Twitter Joke Trial more in another post. That's not what this one is about.

Here is an article I found today about the Bury St. Edmunds case as it was written up locally after the initial hearing adjourned pre-sentencing. Read it and try not to weep:

From this article I learned that the charge was under the Communications Act 2003, section 127, which deals with the improper use of public electronic communications networks. I don't know why the Serious Crime Act 2007 was not wheeled out like it was in other similar cases after the UK Riots. Perhaps this was felt to be inappropriate when dealing with a minor. Perhaps it was the extenuating circumstances that made this charge seem inappropriate. Here are the circumstances:

On Tuesday morning, the 9th of August, this 17 year old boy posted the following update on Facebook - "I think we should start rioting. It’s about time we stopped the authorities pushing us about and ruining this country. I think it’s about time we stood up for ourselves for once so come on rioters, get some. LOL" Note that the local article omits the "LOL" at the end, which I feel is important. This followed several nights of rioting in London.

At some point in the day, the teen's update was met with comments from "friends", some of whom suggested that the update was foolish and that the author was an "idiot". A brief debate ensued in which the teen mentioned the Duggan shooting in Tottenham and abuses of police power. The result of the discussion was that the teen admitted that his remarks were "stupid" and then deleted his post.

Here's what the prosecutor, Sarah-Jane Atkins, had to say. These are some of the dumbest prosecutorial remarks I've seen, and I intend to show just why. This is from the EADT24 article:

“Within minutes, his friends on Facebook are condemning the words he has posted and telling him in no uncertain terms what a poor opinion they now have of him,” Miss Atkins said.

In response, the boy then posted a second message, saying he didn’t see the point of being pushed around by the police all the time.

The boy then entered into a debate with one friend in particular over the shooting of Mark Duggan in Tottenham on August 4 before admitting his comments had been ‘stupid’.

“We are all thankful that his friends were much more sensible than he was and did not react in any way that would lead to further comments in any shape or form,” Miss Atkins told the court.

Lady, are you serious? "Within minutes, his friends... are condemning the words ... and telling him in no uncertain terms what a poor opinion they now have of him." [Translation] Within minutes, his friends are busting his balls for being an "idiot". Anyone who uses Facebook or Twitter regularly knows that this sort of banter happens all the time.

The boy then entered into a debate with one friend in particular in which he expressed some politically charged opinions and then admitted his earlier remarks had been "stupid". In other words, free speech worked exactly the way it's supposed to. Good speech followed some arguably bad speech and then the world was better for it. Although you wouldn't think that's the way it's meant to work if you listened to the idiotic remarks of arsehole prosecutor Atkins:

"We are thankful that his friends were much more sensible than he was and did not react in any way that would lead to further comments in any shape or form..."

I have to assume that this was not the end of the sentence. Is she really suggesting that a bad outcome would be the posting of further comments in any shape or form? Is she saying that it's a good job his friends didn't post their own similar Facebook updates? Are we all just a bunch of sheep who can't be trusted to think for ourselves? She seems to miss the central point. His friends did not react badly. They reacted well. The situation managed itself. Nor were his friends likely menaced. Perhaps someone turned him in. I don't know. If that's the case then this is tragic. Anyway, he deleted the post the same day. The post did not have much scope to cause menace, frankly. It went to about 400 people on Facebook, most of whom probably either didn't see it or just thought it was "stupid". Is there any need to punish this kid? He made an arguably stupid remark, possibly in jest, and was talked out of it. To impose criminal liability is tantamount to prosecuting a thought crime. It really is.

Now this is the part that really burns my arse. The defence does a terrible job. Horrific:

In police interview, the boy said he had only made the comments to ‘have a laugh’ and didn’t intend anyone to take the actions he had suggested.

David Stewart, in mitigation, said the boy had since realised he had been ‘inordinately foolish’ and recognised what an idiot he had been.

“His friends have a very poor opinion of him and he has a very poor opinion of himself,” Mr Stewart said.

“A lesson has been learnt.”
It's as if the defence counsel has never heard of the Twitter Joke Trial. That's because he probably hasn't. Early on in that case the South Yorkshire Crown Prosecution Service (CPS) persuaded the defendant and his lawyer that there was no choice but to enter a guilty plea as Paul Chambers did not deny that he'd sent the offending communication. In other words, the CPS were of the opinion that this was a strict liability offence. This was despite case law from the House of Lords that required mens rea (guilty mind, or intent) to be proven. Had Paul been receiving good legal advice from the beginning, he would have entered a not guilty plea and the CPS would likely have dropped the case, because they felt there was insufficient evidence at that time to prove intent.

I wonder whether Mr Stewart believed this to be a strict liability offence and that the only possible plea was guilty. I wonder whether the West Suffolk CPS believed this as well. This case is an utter disgrace. The rush to early "justice" following the UK Riots has prevented this young man from gaining access to a robust defence. Had some lawyers that I am well acquainted with had the time to become aware of this case before it was heard before the Magistrates, they could have offered free advice that I believe would have drastically improved the outcome of this "trial". I can only hope that the facts I've examined here can form the basis of a successful appeal. This truly is Arsehole Justice in its purest form. Let me end on this tragic note from the Guardian coverage:

The boy's mother told the court: "He is normally a good boy but, like all teenagers, he has his stupid moments."

Speaking to magistrates, the boy added: "I meant it as a joke which is why I wrote LOL at the end."

Wednesday, August 17, 2011

Links - 17th August 2011

Some good articles today (or yesterday, or whatever. Leave me alone):

Liberalism and Riots: Cause and Effect? by Matt Bradley (Arsehole Justice contributor)

Another Arsehole Justice: Andrew Gilbart QC, Manchester

Andrew Gilbart QC, made clear why he was disregarding sentencing guidelines when he said "the offences of the night of 9 August … takes them completely outside the usual context of criminality".

"The principal purpose is that the courts should show that outbursts of criminal behaviour like this will be and must be met with sentences longer than they would be if the offences had been committed in isolation," he said. "For those reasons, I consider that the sentencing guidelines for specific offences are of much less weight in the context of the current case, and can properly be departed from."

Regardless of the severity of the offences before the court, this statement is the epitome of arsehole justice. Nothing takes a specific offence out of the usual context of criminality. Proportionality is one of the fundamental principles of British justice. There may be aggravating or mitigating factors to consider, but the sentencing guidelines allow for this. You simply cannot throw out the sentencing guidelines and expect to deliver justice. Also, judge, please be aware that the principal purpose of courts is to protect the innocent not to make examples of people. I'm sure you will be familiar with Blackstone's formulation which tells us that it is better that ten guilty are set free than one innocent suffers. Andrew Gilbart QC, you are quite possibly an arsehole. The jury is still out on that one, but there's no question that this is a clear case of Arsehole Justice.

[NB - Read the rest of that article. David Cameron supports these harsh sentences. Some dude will probably go to prison for stealing an ice cream cone. Arseholes!]

Tuesday, August 16, 2011

Judge Elgan Edwards QC dishes out some Arsehole Justice in Cheshire

From the Guardian:

Judge Elgan Edwards QC has dished out some serious Arsehole Justice against the defendants Perry Sutcliffe-Keenan and Jordan Blackshaw in Chester Crown Court. These two men were charged with inciting unrest under sections 44 and 46 of the Serious Crime Act 2007, which carried a maximum sentence of 10 years in prison. Both men received 4 years in prison for creating Facebook pages that appeared to be organizing riots in their local communities, neither of which resulted in any actual disorder and at least one of which was regarded as a joke by its author.

According to the Guardian article linked to above, Judge Edwards stated in his judgement that Blackshaw had committed an "evil act". He said: "This happened at a time when collective insanity gripped the nation..." [Flay here] Erm, actually I think that's what's happening now. "...You sought to take advantage of crime elsewhere and transpose it to the peaceful streets of Northwich. The idea revolted many right thinking members of society. No one actually turned up due to the prompt and efficient actions of police in using modern policing." [Flay here] Or maybe no one took it seriously except for the police. Hard to say.

About Sutcliffe-Keenan, the judge said he "caused a very real panic" and "put a very considerable strain on police resources in Warrington." [Flay here] I'd like to see the evidence of who was panicking. I wouldn't be surprised if it was only the police. The author of the page went to bed and woke up with a hangover, apologized, took the page down and said it had been a joke (sound familiar?). Neither of the two men caused a riot to take place. Nothing happened. You can credit the police for their swift actions; however, one would have thought that perhaps it would be better to use this information to try to catch potential rioters in the act. At any rate, four years after pleading guilty makes a mockery of justice. People serve less time for manslaughter. These guys wrote some words on a web site that caused nothing to happen except a police investigation. What really bothers me about this is that it is a natural response in human beings who are in denial about terrible things going on around them to make make light of the situation. Some of that may have been what happened here. For that reason and others, this seems like a clear case of Arsehole Justice.

Wednesday, July 20, 2011

When the government knows better than the copyright owner

It seems the Departments of Justice and Homeland Security under the Obama White House are increasingly viewing themselves as the guardians and protectors of all United States intellectual property. Operation In Our Sites, launched by the Immigration and Customs Enforcement branch of Homeland Security in June 2010 has seen some 90 internet domains seized that were associated with websites believed to be engaged in the illegal distribution of copyrighted materials or sale of counterfeit goods. Earlier this month ICE made the alarming claim that they believe any web domain that sits under the top level domains of .com or .net fall under US jurisdiction because the DNS for those TLDs is routed through Verisign's switches located in Virginia. This was reported in the Guardian newspaper. According to Erik Barnett, the agency's assistant deputy director, this allows the United States to seek extradition of foreign nationals who use .com or .net domains in their law-breaking activities, regardless of the locations of the nationals or the servers and regardless of whether the activities are legal in the local jurisdiction.

This stance became clear as ICE sought from the British government the extradition of a UK national who had created a web site that allowed a user community to post links to video content, some of which had been made available on sites such as Youtube without respecting copyright. In the United Kingdom, Richard O'Dwyer's website (in the aforementioned article) would enjoy the "mere conduit" defence as it was simply a platform that serves a user community who provide the content. It is arguable whether a URL can even be treated as a copyrightable work in any context. A Uniform Resource Locator is nothing more than a signpost to the resource that a web browser is seeking. The content delivered through a URL can change at any time, so it is hard to see how a URL can represent a work any more than a telephone number can represent a person. It seems however that in the United States, this is beyond question.

The very worrying development that I've seen today however, makes this case seem insignificant. Yesterday Aaron Swartz, a fellow at Harvard University's Center for Ethics and an activist for open knowledge, was arrested and charged with offences under the Computer Fraud and Abuse Act. The alleged offences include hacking into JSTOR, a non-profit organization that hosts academic journals, via a computer room at MIT and then downloading millions of research papers onto his laptop computer. JSTOR charges for its content, and research universities typically pay a flat fee for access and then make the digitized journals available for free to faculty, staff and guests for research purposes (as one might reasonably expect). The indictment, which can be read at the bottom of the linked article, charges that Swartz used subterfuge to gain unauthorized access to MIT's computer network and used software tools and trivial measures to automate the downloading of content and to circumvent the weak efforts made by MIT and JSTOR to prevent such mass downloading. Eventually, he was found out and somehow the FBI got involved. It's not clear how the Feds initially were activated, but it is clear that both JSTOR and MIT were eventually satisfied that there was no harm done as Swartz gave assurances that he did not intend to distribute the articles that he downloaded.

One would have thought that the matter might end right there, but one would be wrong. The US Attorney's Office decided to press ahead with a prosecution for felony computer hacking, worth up to 35 years in prison and a $1 million fine. Because the files were accessed from a computer in Massachusetts and the JSTOR servers are located in another state, this rises to federal jurisdiction. Here is what JSTOR have to say on the matter:

We stopped this downloading activity, and the individual responsible, Mr. Swartz, was identified. We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.

The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office. It was the government’s decision whether to prosecute, not JSTOR’s. As noted previously, our interest was in securing the content. Once this was achieved, we had no interest in this becoming an ongoing legal matter.

JSTOR, in other words, are not really bothered about this breach and having engaged in civil discourse with Aaron Swartz were prepared to take him at his word that he had no intention of distributing the materials. Why then is the US Attorney's Office so keen to prosecute Swartz for what amounts to little more than the violation of an online service's terms of use? Since when is it a crime, federal or otherwise, to violate a web site's terms and conditions? I would have thought this was clearly a civil matter. More importantly, why is the federal government enforcing a web site's terms and conditions when the company that owns the website is not asserting them? The files that Aaron Swartz downloaded were ones he was free to download as a guest of MIT. He just wasn't supposed to take so many. He may have gained unauthorised access to the MIT computer network, but that would be between himself and the university with no state lines having been crossed.
I find this approach deeply troubling as the US Attorney's Office is sending a clear message that it has a mandate to pursue a prosecution on copyright grounds even against the wishes of the copyright owner. JSTOR act as an agent for the journals who own the copyright of selected works, and so they have a responsibility to ensure that royalties are collected and properly distributed. If JSTOR are willing to take the risk that Mr Swartz will not redistribute the materials he downloaded, they must believe that the risk is insignificant. There is nothing to suggest that any of the journals that figure into this story have sought a remedy for copyright infringement. What we have here is the federal government taking charge of enforcing copyright even when the copyright owners are not bothered about it. That makes no sense. Surely as a copyright owner who licenses content I can decide on a case by case basis whether or not I want to enforce that license. It is not for the federal government to intervene like some sort of guardian angel. This sets a terrible precedent. Whatever next? Will the federal government decide that all content should be governed by commerce whether we like it or not? Will it be un-American of me to give away for free the content that is of my own creation? Sounds silly. I'm not laughing though.