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The current difficulties of the UK government in setting up an inquiry into historic child abuse raise a more general point: there seems to be an increasing — but unfortunate — reliance on “inquiries” in British politics.
The pattern is familiar: a dreadful state of affairs comes to light, something must be done, lessons must be learned, and it must never happen again.
Responsibility for determining the thing to be done, working out the lessons to be learned, and ensuring that the “it” never happens again is then handed to a specially appointed inquiry. Such an inquiry will usually be “independent” and not connected to the institutions of the state which have presumably allowed the bad thing to happen in the first place.
And this approach suits a lot of people.
As there is the appearance of immediate action, those aggrieved at the bad thing that has happened can be satisfied that “progress is being made” and those in the media who want something to report and comment on have all they need. Read more
Another day, another case before the English courts where the issue is whether someone should face criminal liability not for something they did, or intended to do, but for something they said.
In this particular instance, the case was an appeal from a local criminal court to the High Court in London. The facts of the case are unpleasant, and the vile speech act in question was not one which any civilized person would find acceptable. However, a two judge panel at the High Court granted the defendant’s appeal. And in his concurring judgment, Lord Justice Laws (an example of nominative determinism seemingly rife in the senior English judiciary – Lord Chief Justice Lord Judge is another example) made the following emphatic statement:
the words were…certainly offensive: a nasty, malicious antisemitic comment of which the appellant should be thoroughly ashamed, but they were not menacing.
The courts need to be very careful not to criminalise speech which, however contemptible, is no more than offensive.
It is not the task of the criminal law to censor offensive utterances.
This is a rousing declaration: the sort of judicial exclamation which makes you want to nod your head as you read it. It is sensible and liberal, even if the speech act in question being defended is disgusting. Read more
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The news that the UK’s Metropolitan Police had obtained the “telecommunications data” of a journalist so as to identify his confidential source has significant implications for criminal and civil lawyers — and also for their clients.
What the Met did was simple: they merely completed a request form under the Regulation of Investigatory Powers Act 2000 (RIPA) and sent it to the journalist’s mobile telephone service provider. As long as the RIPA request is approved by the appropriate senior police officer, the telephone company provides the requested information by return. This information is not the actual content of a call or voicemail — that would (or should) require an intercept warrant — but all the accompanying “metadata” (a list of calls to and from the mobile, their duration and times, and even the geographic location of the mobile during the call) as well as subscriber information.
For the police, asking for this telecommunications data is routine. Every year the police and other public authorities make about half a million RIPA requests. None of these requests need a warrant, and none need consent. Indeed, the subscriber is not even told the request has been made. All this information is provided silently and easily to the police force or other public body making the request. There are no real safeguards against abuse.
So, if the police can casually use RIPA to obtain the telecommunications data of the political editor of the Sun newspaper, is there any limit on who else they would seek this data on? And even if there was such a limit, how would anyone know that it was not being respected? Read more
The UK’s Metropolitan Police obtained the “telecommunications data” of the political editor of the Sun. They did this without his consent, and possibly even without his knowledge. They also did this without any warrant or other court order. And this intrusion has caused a media sensation.
The revelation was buried in the “Operation Alice” report of the Metropolitan Police into the so-called “Plebgate” affair about what was said (and not said) by the then chief whip of the government, Andrew Mitchell, at the gates of Downing Street in September 2012. This incident led to a senior ministerial resignation, and to four police officers losing their jobs with one also being prosecuted. There are accusations and counter-accusations, and an ongoing libel case. The published report set out part of the Metropolitan Police’s own investigation; on whether Mr Mitchell called the police “plebs” the report is inconclusive.
But deep in the report, comprising paragraph 5.120, is this short and, for many, worrying sentence:
The telecommunications data in respect of Tom Newton Dunn was applied for and evidenced.
What the Metropolitan Police appear to have done was to issue a “RIPA request” (under the Regulation of Investigatory Powers Act 2000) to Mr Newton Dunn’s mobile telephone company for “telecommunications data”. This is not the same as obtaining “intercept” evidence of live calls and voicemails – that would need a warrant. Instead the request would have been for the accompanying data which would be held by the telecommunications provider: the relevant numbers and other details of incoming and outgoing calls, their duration, their times — even the geographical location of the mobile telephone when the calls were received or made. As one can imagine, with this amount of data, obtaining an intercept of the actual content of the calls becomes less important. Read more
Yesterday, in response to the sharing on the internet of horrific and sickening footage of the apparent execution of journalist James Foley, the UK’s Metropolitan Police Service (MPS) provided the following statement to news reporters:
The MPS Counter Terrorism Command (SO15) is investigating the contents of the video that was posted online in relation to the alleged murder of James Foley.
We would like to remind the public that viewing, downloading or disseminating extremist material within the UK may constitute an offence under terrorism legislation.
What was eye-catching about this statement was that “viewing” the material could, by itself, be a criminal offence under “terrorism legislation”. By the time the statement was issued, thousands of people had viewed the video. Was the MPS really saying that each UK viewer faced, at least in principle, a conviction under terrorism law for doing so? Read more
An ape takes a selfie: but who owns the copyright in the photograph?
This question is in the news because of a decision contained in the recent Wikimedia Foundation Transparency Report:
A photographer left his camera unattended in a national park in North Sulawesi, Indonesia.
A female crested black macaque monkey got ahold of the camera and took a series of pictures, including some self-portraits.
The pictures were featured in an online newspaper article and eventually posted to Commons.
We received a takedown request from the photographer, claiming that he owned the copyright to the photographs.
We didn’t agree, so we denied the request.
The UK government is pushing through emergency legislation.
The Data Retention and Investigatory Powers Bill was published yesterday, and the intention is that it will be an Act of Parliament by the end of next week. A legislative process which usually takes up a year will be truncated into seven days. This is law-making in a hurry. Read more
What would be better than this sentimentality about a thirteenth century manuscript would be for the UK to have proper constitutional guarantees: to make it possible for a defendant to rely on his or her fundamental rights in practical case, and to make it impossible for parliament and the executive to violate these rights. But this would mean that the UK would at last have a mature approach to constitutional rights. Read more
Last weekend the Sunday Mirror reported, almost in passing, that Chris Grayling may be sacked from the UK cabinet:
So Justice Secretary Chris Grayling is expected to get the chop and be replaced by Northern Ireland Secretary Theresa Villiers.
This would be welcome news. Mr Grayling has not been a success as justice secretary and lord chancellor, in respect of either policy making or political leadership. Indeed, it is difficult to imagine a worse ministerial performance. Read more
Earlier this month, a UK government department told senior judges something rather extraordinary: that the department was resorting to an “emergency measure”.
But this was not the Home Office dealing with the aftermath of widespread riots, or the Department for Food, Environment and Rural Affairs coping with sudden flooding of villages and towns. Read more
A fortnight ago the UK government had a disaster in a London criminal court.
It was a disaster which had been one year in the making – and one which was widely predicted. And it was a disaster the impact of which will become even more serious – unless government policy now changes.
In essence, the calamity was that a prosecution for complex fraud – the Operation Cotton case – was stayed (that is, terminated) by a judge on the application of the defendants. This was, of course, unwelcome in itself: it meant alleged fraudsters could walk free without trial. Read more
The ruling today on the Operation Cotton case is significant – in terms of law, policy, and politics.
In essence, the ruling was on whether a complex fraud trial could go ahead in circumstances where there appears to be no legal representation available for the five defendants. The lack of potential representation was in turn because no barristers with the sufficient expertise were willing to work for the government’s legal aid rates for such cases. The prosecution wanted an adjournment so that defence barristers could be somehow found. The defendants instead sought a “stay” – in effect, the termination of the prosecution. Read more
The Ministry of Justice – which is responsible for the prison system in England and Wales – decided in November 2013 that it will restrict books that can be received by serving prisoners. This week the excellent Howard League drew public attention to this, and yesterday a number of distinguished authors signed a letter of protest.
We need to be clear as to the nature of the policy. The relevant document is here (Word document, see especially pages 45 and 56). It is not a general “ban” on books as such. Prisoners will still have access to the books in the prison library and can have up to 12 books in their cell – but access to any books sent from outside prison – either purchased or sent by friends and family – will only be as rewards for good behaviour. The prospect of books, like trinkets, will be dangled to prisoners as treats. Read more
A number of people in England are, it seems, now routinely searching bins for discarded food so that they and others can eat.
And if this was not sufficiently concerning, the state appears to be seeking to criminalise these people for doing so. Read more
“The cause of everyone’s misfortunes is their inability to sit quietly in a room.” Blaise Pascal
Very few citizens of the UK appear to have any great interest in constitutional affairs. And, other than those with a passion for devolution of its constituent nations, there are probably a few hundred people who ever give constitutional reform any serious thought.
Many do not even believe that there is even a constitution in place; such things are instead what foreign folk have to cause themselves needless difficulties. A sincere concern with constitutional affairs seems the preserve of the Tory fogey or the academic radical, but is not the stuff of serious politics. Read more
Dawn arrests and long bail are two extreme examples of how the coercive power of the state can be applied to individuals.
The first is short and dramatic: a loud knock on the door in the early hours followed by your arrest and removal to a police station, whilst your is home is invaded and thoroughly turned over by a team of uniformed police officers. And the second is painful and ongoing: after the arrest and release on bail, then weeks or months – or even years – will go by without you knowing whether you will be charged or not.
In both situations, there has been a lot of attention by reason of the various police operations connected to the conduct of the tabloid media. Of course, this publicity is not surprising: many of those arrested are, by definition, professional communicators.
But neither dawn arrests nor long terms of bail are particularly a journalists’ problem. Both go wider; it is merely because they have happened to media folk that what has happened and its impact on those involved is clearer for others to see.
Are there any good reasons for these dawn arrests and the long bail? Is there, as a reporter would ask, another side to the story? Or are there wider problems here, which the current media-related cases are acting to bring to light? Read more
Here is a thought-experiment: imagine that you have asked some mischievous demon to conceive the most counter-productive way of dealing with crime. What fiendish scheme would this diabolic agent devise?
The demon could suggest a system where offenders are kept together with more serious and experienced criminals for months or years, and so can learn from them; where the offender is taken away from any gainful employment and social support or family network; where the offender is put in places where drugs and brutality are rife; where the infliction of a penalty can make the offender more, and not less, likely to re-offend; and where all this is done at extraordinary expense for the taxpayer.
A system, in other words, very much like the prison system we now have in England and Wales, as well as in many other jurisdictions. Read more
Lady Justice does not always have her eyes covered: for example, contrary to popular belief, she does not wear a blindfold on top of the Old Bailey.
Sometimes she is depicted by artists as being blindfolded, and sometimes she is not. (Perhaps wisely, those statues and paintings which have Lady Justice blindfolded tend to have her with the sword safely lowered; and whether someone brandishing a sword whilst wearing a blindfold is an appropriate image for any system of justice is a matter of opinion.) But there is no consensus among painters and sculptors as to whether Lady Justice should be wearing a blindfold or not.
There is similar inconsistency in what parts of the justice system we are allowed to see, as members of the public or even as jurors or parties to a claim or prosecution. Some parts of our legal process are open, whilst other aspects are hidden from our view. This is because there is no general principle of open justice in the jurisdiction of England and Wales: it is often a game of pass the blindfold as any court case continues. Read more
Chris Grayling, the justice secretary and lord chancellor, is attacking judicial review. He has derided it in the Daily Mail, and the department he heads, the ministry of justice, has issued a consultation paper on further “reform”.
It is worth considering what point, if any, is served by judicial review. This will help explain why the government’s proposals to narrow the rights of individuals and representative groups to bring judicial reviews should be of general concern. Read more