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!

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.

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. 

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...

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 - http://flay.jellybee.co.uk

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. http://uaf.org.uk/2011/08/sign-now-support-the-right-to-march-against-edl-racists-and-fascists/

"Prevent" officers expecting universities to spy on disaffected Muslim students. https://twitter.com/#!/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. http://www.whatdotheyknow.com/request/s60_and_s60aa_authorisations_28t

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. http://www.independent.co.uk/news/uk/crime/mother-denies-trying-to-incite-riot-2347452.html

Coalition government U-turns on scaling back emergency terror laws. http://www.independent.co.uk/news/uk/politics/government-move-to-relocate-terror-suspects-2347547.html

...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!