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!]
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.
ARTICLE 8There are two separate statements here. At this point I need to make clear that there is no public authority attempting to interfere with the privacy rights of CTB. Instead, we have a newspaper group and a private individual who wish to breach the privacy. Because of this, the second statment has no bearing on the case. The first statement says "Everyone has the right to respect for his private and family life, his home and his correspondence." The facts of this case are very roughly as follows: A woman called Imogen Thomas had an alleged affair with a professional football player who is married with children and who wishes not to be named; Imogen Thomas desires to tell the story of her relationship with the football player identified in the court documents as CTB and News Group Newspapers Ltd. wishes to purchase the story for publication in their newspaper, The Sun; The claimant CTB sought and Justice Sir David Eady granted on the 14th of April 2011 a temporary Anonymised Injunction preventing the disclosure of the claimant's identity. In his judgement, Eady cites evidence before him, tending to suggest blackmail, as one of the major reasons for the granting of the injunction. He is quick to point out that the evidence has not been properly tested and that he cannot come to any final conclusion at that stage. (See para 9). The evidence also appears to suggest that Newsgroup were using Imogen Thomas with her consent to set a trap for the claimant in order to obtain additional materials for their story. Because of this, Eady felt it was reasonable that the claimant be excused from serving the respondent Imogen Thomas in advance of the 14 April hearing (see para 12). What this effectively means is that Imogen Thomas was unaware of the action until she was served with the injunction and was not afforded the opportunity to state a case. She was at that point and is still muzzled from revealing the identity of the sports star with whom she had an affair, to any party other than advisors and close friends and family (I am led to believe), who are then also bound.
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Moreover, in so far as Ms Thomas wishes to exercise her Article 10 right by selling her life story, she is entitled to do so, but only subject to the qualification that she is not thereby relieved of any obligation of confidence she may owe, or free to intrude upon the privacy rights of others: see e.g. McKennitt v Ash, cited above, ...The implication is that since CTB does not wish to be named as having had an extra-marital affair with Ms Thomas, she may never publicise this information, regardless that it happens to be true and a part of her own life. I'm sorry, but no. The information was lawfully obtained as the result of shared experiences and she is an autonomous human being. Because of this I also take issue with paragraph 33:
It follows that one can rarely arrive at the answer in any given case merely by reference to generalities. It must all depend upon the particular facts of the case. It follows too that there can be no automatic priority accorded to freedom of speech. The relative importance of the competing values must be weighed by reference to the individual set of circumstances confronting the court. Of course the court will pay particular regard to freedom of expression, but that does not entail giving it automatic priority. All will depend on the value to be attached to the exercise or proposed exercise of that freedom in the particular case. It will rarely be the case that the privacy rights of an individual or of his family will have to yield in priority to another's right to publish what has been described in the House of Lords as "tittle-tattle about the activities of footballers' wives and girlfriends": see e.g. Jameel v Wall Street Journal Europe SPRL [2007] 1 AC 359 at [147]. It has recently been re-emphasised by the Court in Strasbourg that the reporting of "tawdry allegations about an individual's private life" does not attract the robust protection under Article 10 afforded to more serious journalism. In such cases, "freedom of expression requires a more narrow interpretation": Mosley v UK (App. No. 48009/08), 10 May 2011, BAILII: [2011] ECHR 774, at [114].The problem with this is that the "tittle-tattle about the activities of footballers' wives and girlfriends" and the "tawdry allegations about an individual's private life" should not be regarded solely as the object of journalism. They are first and foremost the reflections of a party to the "tittle-tattle" who ought to be permitted to speak about them. If a newspaper wished to publish some details that no other party wished to have told, then I can follow that reasoning. The paragraph is referring to the newspaper's freedom of speech as pertaining to the publishing of information it has obtained. It is another matter when applied to Ms Thomas' freedom to recount her life. If there was some way to prevent newspapers from publishing the information while still preserving Ms Thomas' right to communicate it freely, then that would be far preferable. The fact that the information is not in the public interest is to my mind immaterial. It should be Imogen Thomas' right to speak freely as an interested party. It seems to me that Eady's interpretation is that Ms Thomas should not even be permitted to publish a personal blog of her account. Had she done so before the injunction was granted, she would have been in breach of CTB's Article 8 protections. I do not agree.
I haven't been very good about writing in my blog recently. The urge comes and goes. There's something I wanted to write about last week, but I waited too long and lost the desire. Something I've just seen has brought it back though. What I'd intended to write about this time last week was the attitudes of a couple of US Senators towards free speech. The Senators are Majority Leader Harry Reid (D-Nevada) and Lindsey Graham (R-South Carolina) and the context is the recent burning of a copy of the Quran by Florida pastor Terry Jones (the same one who threatened to burn copies of the Quran last year). The two Senators are upset and rightly so by the rioting in Mazar-I-Sharif, Afghanistan that killed eight United Nations workers. But somehow they overlook the fact that these killings were done by people who share a warped sense of justice, regardless of how or even whether they might have been incited to violence.
On Sunday the 3rd of April, Senator Reid had this to say to Bob Schieffer on CBS's Face the Nation explaining that some members of Congress were considering some kind of action in response to the Quran burning, a political expression protected by the First Amendment: "Ten to 20 people have been killed," adding "We'll take a look at this of course...as to whether we need hearings or not, I don't know." On the same program, Senator Graham said the following (which would be laughably ridiculous if he weren't a law maker):
"I wish we could find a way to hold people accountable. Free speech is a great idea, but we're in a war. During World War II, we had limits on what you could say if it would inspire the enemy. So, burning a Koran is a terrible thing but it doesn't justify killing someone. Burning a Bible would be a terrible thing but it doesn't justify murder. Having said that, anytime we can push back here in America against actions like this that put our troops at risk we should do it, and I look forward to working with Senators Kerry, and Reid, and others to condemn this, condemn violence all over the world based on the name of religion. But General Petreaus understand better than anybody else in America what happens when something like this is done in our country and he was right to condemn it and I think Congress would be right to reinforce what General Petreasus said."
So much to pick apart here. Free speech is not just a great idea. It is the cornerstone of a healthy democracy. It must be protected at all costs, barring certain well established exceptions where actual harm is directly caused. Graham is right that Koran burning is a terrible thing (to some) and that it doesn't justify killing someone. Why not leave it there? That says it all. Pastor Jones is in no way responsible for the killings of innocent people in Afghanistan. You might as well claim that the Martin Scorcese film Taxi Driver is responsible for the attempted assassination of President Ronald Reagan or the rock group AC/DC is responsible for the work of serial killer Richard Ramirez, who claimed to have been influenced by their track Night Prowler. Some have tried to make the latter claim, but thankfully these people have always been a sliver of a minority. It is worrying though that this attitude is becoming acceptable and even mainstream, particularly where terrorism is concerned. The people responsible for the killings are the rioters and the mullahs who spurred them on.
Terrorism is nothing new, although it has taken on elevated political significance since the al-Qaeda attacks on the World Trade Center and the Pentagon in September 2001. The history of terrorism is thought to go back to the beginning of the first century AD, when a Jewish extremist group called the Sicarii Zealots attacked collaborators with Rome. Why should such an ancient form of violence suddenly threaten our core freedoms? Freedom of speech is a great idea especially because we are at war. It is a war that the West will probably always be waging. Although he refers to World War II, Graham is most likely thinking of World War I when President Woodrow Wilson passed the Espionage Act 1917 and the Sedition Act 1918. The second of these two laws was a horrible overreach that forbade the use of "disloyal, profane, scurrilous, or abusive language" about the United States government, its flag, or its armed forces or that caused others to view the American government or its institutions with contempt. It was thankfully repealed two years later. This goes to show just how fragile freedom of speech can be, particularly in times of war. The Espionage Act is still in force today and Congress are attempting to use it to prosecute Julian Assange of Wikileaks.
Does the action of one crackpot in Florida put our troops at risk? No. That would be attaching too much importance to Pastor Terry Jones. Let's not inflate his ego or next thing he'll be setting mosques alight. What might put our troops at risk is United States foreign policy. I believe General Petraeus would agree. As Jim Treacher of The Daily Caller says in the headline of his article from the 4th of April, "The President of the United States bombs a Muslim country, and some nobody in Florida burns a Koran. Guess which one's to blame for rioting in Afghanistan?" Yes, the rioters were incited to violence. However the blame for this lies squarely on the shoulders of a few angry mullahs, not some idiot halfway round the globe who burned a book.
What got me thinking about this again was something my friend Padraig Reidy of Index on Censorhip wrote about the Independent columnist Yasmin Alibhai-Brown and her "interesting" take on freedom of speech as she outlined it in her column today. Some may remember Alibhai-Brown for her involvement in a case that briefly paralleled the Twitter Joke Trial, when she initially sought the prosecution of conservative councillor Gareth Compton over a provocative comment he made about her on Twitter. Free speech seems to be a difficult concept for some people to grasp. Our prejudices sometimes get in the way. This is precisely why it must be protected.
America. Land of the Free. Home of the Brave. Country of my birth. The United States of America was founded at the end of the 18th century by visionaries who sought to create “a more perfect union” and “secure the Blessings of Liberty” among other lofty goals. A government of the people, by the people, for the people. And underpinning all of this was the grand idea of Liberty. “Give me liberty, or give me death” proclaimed Patrick Henry to the Virginia Convention in 1775. Give me Liberty or give me death. This is a demand for freedom from tyranny - one that can scarcely be ignored. Agreement among the delegates to the Philadelphia Convention of 1787 to enact a Bill of Rights helped to ensure the ratification of the Constitution itself, addressing the concerns of some of the Founding Fathers that the Constitution did not protect the fundamental principles of human liberty. The Bill itself borrowed heavily from the English Magna Carta and consisted of the first ten amendments to the US Constitution.
All this talk of liberty, but what is it? At its most basic, liberty refers to the natural condition whereby a human being is free from outside compulsion or coercion. Freedom is therefore limited by the extent to which one’s actions infringe upon the freedoms of another. This is certainly the meaning of liberty that is ascribed to the Constitution. Surely with its rich history of rugged individualism and its stalwart bootstrap culture, America the free would always jealously guard basic liberty, no? I’d always thought so. But I’m worried now. I worry that Americans are losing the sense of liberty and what it means to be truly free. Americans seem ever more willing to tolerate the intrusion of government into their private lives for the sake of some false sense of security. It may not be too late, but when I think of all that has been lost in the last decade I don’t know quite how to go about getting it back.
Last year an American man from Seattle, Washington called Phil Mocek was arrested at the airport in Albuquerque, New Mexico after he refused to stop filming his security screening by the Transportation Security Administration (TSA), a division of the Department of Homeland Security responsible for travel security. He also failed to provide identification on request. Last month after a two day trial, Mr Mocek was found by a jury to be Not Guilty of all charges brought against him without even presenting a defence. The video taken by Mr Mocek that the police used as evidence showed that he had politely and calmly asserted his rights at all times. TSA agents and police who testified were forced to admit in cross-examination that there were no laws prohibiting the use of photographic or audiovisual recording equipment in the public areas of an airport, nor is a ticketed passenger required to show ID for a domestic flight, nor can the TSA or police legally interfere with his ability to travel by air unless the police have a reasonable basis for believing that a crime has been or is being committed. The Not Guilty verdict was a major victory for liberty and common sense, yet it’s difficult to see how anything will change as a result of it. The TSA do not publish their standard operating procedures, which would inform members of the public of what powers TSA agents have and what travellers must submit to. The Department of Homeland Security refused to furnish the TSA’s procedures when requested under the Freedom of Information Act, instead merely furnishing the titles of these procedures. Even these had never previously been published. How can a traveller assert his or her rights in the face of such arbitrary authority without a published code to refer to? How can the legislature, the judiciary and “We The People” decide whether these procedures are necessary and in the public interest unless they are published? I’m genuinely at a loss. I’ve written to my Congressman, both state Senators, Secretary Janet Napolitano and President Obama. I’m not expecting much of a response. Phil Mocek has incurred thousands of dollars in legal costs for which he has not been compensated, nor have there been any disciplinary proceedings against any of the agents or officers who abused their powers, nor has there been any corrective action taken by the agencies involved. How did we get here? How could America allow the creation of a security apparatus that is unaccountable? Is this what it takes to feel safe at home? I don’t feel safe. Land of the Free. Home of the Brave.
Yesterday I learned that the Department of Correction (DOC) of the state of Maryland has a blanket policy whereby any new hires or recertifications are required to submit to a background check and to provide the government with their social media account usernames and personal passwords.
Yes. That’s right. Let that sink in a minute... and let’s continue. Raise your hand if you can think of anything that is wrong with this. Raise both hands if you’ve managed to work out that there are many aspects of this policy that are deeply disturbing and in fact outrageous. In a letter to the DOC by the American Civil Liberties Union acting on behalf of an employee undergoing recertification, the ACLU describes this policy as “a frightening and illegal invasion of privacy for DOC applicants and employees -- as well those who communicate with them electronically via social media”. The rationale, according to one investigator, is “to enable the government to review wall postings, email communications, photographs, and friend lists, in order to ensure that those employed as corrections officers are not engaged in illegal activity or affiliated with any gangs”. This is equivalent to a demand to read an applicant’s private diary and rummage through the photo albums on his shelf – in his home. Oh, and also to read letters that his friends have sent to him and to rummage through their personal effects as well. This makes me livid. What gives a government department (or any employer for that matter) the right to do this? Nothing. It violates at least two of the first ten amendments. Some bureaucrat thought this sounded like a good idea and nobody thought to challenge it. Led to believe he had no choice but to comply, officer Robert Collins surrendered his Facebook login details to his employer. Ask yourself what you would have done in his place. Land of the Free.
In July 2010, hacker extraordinaire Jacob Applebaum, creator of the Tor privacy and security project and Wikileaks volunteer, was detained at Newark’s Liberty Airport in New Jersey after a return flight from Holland. Applebaum was pulled aside by Customs and Border Patrol agents who informed him that he was selected for a random search. According to sources, Appelbaum, a U.S. citizen, was then taken into a room and frisked, and his bag was searched. Receipts from his bag were photocopied, and his laptop was inspected. He was then questioned by officials from Immigration and Customs Enforcement and from the US Army. When he asked to speak to a lawyer, he was told that he was not under arrest and therefore did not have the right to legal counsel. His laptop was returned to him after three hours, but his three mobile phones were seized. During this time the officials asked him about his Wikileaks activities and his opinions about the wars in Iraq and Afghanistan and God knows what else. Applebaum declined to answer without a lawyer present. He was not allowed a phone call.
I would be grateful if someone could please explain to me how a person can be detained against his will and questioned by government officials with the possibility of self-incrimination without in fact being under arrest. As far as I know, this is what it means to be under arrest. This is the very definition of under arrest. A law enforcement official cannot simply say “you are not under arrest” in order to get around the pesky problem of constitutional rights. That’s a bit like pouring a bucket of water over someone’s head and then saying “you are not wet”. Yet they will do this because they have the power to. They ought not to have this power, but they do because we allowed it by default. Home of the Brave, my arse.
Governments always want more power over their governed. The national security gambit is the most sure fire way of grabbing more. Our security services manage to convince us that we need to give them more power so that they can more effectively keep us safe from harm. They feed on our fears and remind us that we expect them to do everything in their power to keep us safe. We believe them and hold them to account when they fail, as they inevitably will, to keep us completely and absolutely safe. They convince us yet again that they need more power, and the hysterical feedback loop begins its next cycle. It must stop. America, please wake up and take back what is yours before it is too late. When government grants itself new powers it is very reluctant to give them back. Emergency powers, which were only ever meant to be temporary, somehow manage to remain in effect for years, even decades. The threats don’t retreat; they remain. Total security in a democratic society is a pipe dream. But we must take a risk based approach to managing threats, otherwise the biggest threat to peace and prosperity, the biggest threat to life, liberty and the pursuit of happiness is the government monster that is incapable of protecting its citizens from itself.
