Thursday, June 04, 2015 

Helping jihadists in Syria while still prosecuting those who come back? No, we wouldn't do that.

Speaking as we were of the deficiencies of the Crown Prosecution Service, it would be remiss not to mention the collapse on Monday of the about to start terrorism trial of Swedish national Bherlin Gildo.  Precisely what circumstances were behind the arrest of Gildo, who was only in the country to get a connecting flight to Manila, are opaque to begin with.  Stopped at Heathrow under schedule 7 of the Terrorism Act, he was charged with attending a terrorist training camp in Syria, as well as having in his possession information likely to be useful for terrorism.  And indeed, Gildo made no attempt to deny he had been in Syria, fighting alongside the al-Nusra Front, al-Qaida's affiliate in the country.  He hardly could when like so many other jihadis he was keen on posing for the camera, including with dead bodies.

Surely then another open and shut case.  Except Gildo's defence had the bright idea of bothering to put some work in for their client, and presented evidence mainly in the form of news reports on how the intelligence agencies had been secretly training and supplying weapons to armed groups in Syria.  The government has also recogised the Syrian opposition "as the sole legitimate representative" of the Syrian people, despite how the Syrian opposition mainly consists of a tiny and ever dwindling number of so-called moderates and a complete mess of Islamists of various hues, from the more radical than Hamas variety to our pals in Islamic State.

You might then have expected the prosecution to dismiss the notion the UK government had been in any way helping out a group affiliated to al-Qaida, or even the non-moderate opposition as a whole.  If they refused to, or didn't disclose the information requested by the defence, that would be a tacit admission that we haven't the foggiest idea where the "non-lethal" materiel we do know has been provided has gone, let alone the alleged shipments of weapons, wouldn't it?  It would seem so, and yet rather than dispel such an absurd notion, the prosecution instead dropped the case.

Fairly apparent is that the arrest of Gildo was a result of dealings between the authorities and the Swedish intelligence agencies.  Gildo returned home with the apparent help of the Swedes, where there have been no prosecutions of those who have gone to fight in the country.  Whether he broke an agreement he had with them, or terminated the mutual relationship they believed to have developed, it's difficult to see precisely why he would have been stop and arrested here, various jihadist propaganda found on his laptop or not, unless it was as a favour on the part of MI5.  They clearly didn't expect Gildo to end up being represented by the ever tenacious Gareth Peirce, nor that something done for reasons we'll never know could have potentially exposed the activities of MI6 in providing support to the Syrian rebels.<

The surprise is that in none of the previous prosecutions of those who've travelled to Syria to fight was a similar defence attempted.  The vast majority have involved Islamic State, which the West has never directly backed, although our allies in the Middle East may well have done, but this wasn't the case at the trial of the Nawaz brothers.  Not only did neither of the brothers actually take part in fighting, staying only at a training camp for a month, they joined a group that became part of the Islamic Front, a jihadist but opposed to Islamic State coalition of various factions.  

Despite the Crown Prosecution Service saying the dropping of the Gildo case will have no bearing on other prosecutions relating to Syria, it surely provides the Nawaz brothers with a line of appeal: if the government cannot guarantee it is not providing support to groups like the Islamic Front, then surely their conviction is unsafe.  Considering it refused to do so in a case involving al-Nusra, which is a specifically proscribed organisation, it hardly seems likely to be able to do with Junud al-Sham.  As with policy on Syria as a whole, what an utter mess, and one entirely of our own making.

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6/04/2015 08:07:00 pm | |

Thursday, February 05, 2015 

The numbers game and demanding something must be done.

Many of us have a problem with getting our heads round numbers.  The chief point of protest from those in Rotherham to Louise Casey's inspection team, sent in after Alexis Jay's report into child sexual exploitation in the town, was the 1,400 victims figure.  As I pointed out at the time, Jay had reached this number by not so much as an estimate but an outright guess, as the documentation was so lacking.  Her team had also read only 66 case files as part of random sample.

Casey in her report writes "those denying the figures could not point to any more authoritative figure" (page 22), precisely because of the lack of documentation or the changing counting methods, or indeed different things being counted in the documentation.  In other words, no one has the slightest idea just how many children have been sexually exploited in Rotherham, but it's a high one and Jay's figure is probably a conservative estimate, or rather guess.  When you consider that again Casey is counting not just those definitively groomed by Pakistani heritage gangs, but who may have been abused by members of their own family, it puts further doubt on her own conclusion.

This is not to deny the accuracy of Casey's other conclusion, that behind the questioning of the figure, by the councillors at least, was the denial of the very real problem of CSE.  Alexis Jay's report otherwise was excellent, and if anything Casey's work distracts from it.  When however you have a number that is focused on above everything else, as happened with the excess deaths figure leaked to the press concerning the Mid-Staffs care scandal, a figure that didn't appear in the final report precisely because it was felt to be confusing, it does invite questioning and disbelief.

Which brings us to another example of what happens when the very best of intentions, the demand something must be done, leads to poor decision making.  Back in February last year the Guardian and other newspapers began a campaign against the continued practice of female genital mutilation.  As worthy causes go, there isn't a much higher one: there is no reason whatsoever why so much as a single girl living in this country should be cut in such a way, nor should it ever be tolerated, regardless of any cultural sensitivity.  It's a crime, and its chief aim is to prevent women from experiencing pleasure during sex for the purposes of "control".

Alongside the urgently needed awareness campaign was however the bandied about figure of 65,000 girls being at risk, and much emphasis was also placed on how there had not been a single prosecution in the 29 years of legislation being on the statute book.  The reasons why there hadn't been any were fairly obvious: it's not something many victims are going to confess to until they start having serious relationships, or become pregnant. It's also nearly always organised by the victim's relatives, if not with the active permission of the parents, with all that entails for investigations if suspicions are reported to teachers or the police.  Failing careful monitoring of those most at risk, which carries with it the potential for accusations of profiling, misunderstandings and racism, it's always going to be difficult in the extreme to bring charges.

We can't then know exactly why the head of the CPS, Alison Saunders, decided to go ahead with the prosecution of Dr Dhanuson Dharmasena for committing FGM.  Was she under pressure to do something because of the campaign?  We do know that the prosecution was announced three days before she was due to appear before the Home Affairs Select Committee, where the failure to prosecute anyone over FGM would undoubtedly been questioned.

Nonetheless, even on the basic facts of the case it ought to have been clear that Dharmasena had acted in the interests of his patient, even if he erred in precisely the procedure he carried out.  Dharmasena's patient, who did not want the doctor to be prosecuted, had undergone either type 1 or type 2 FGM as a child.  Hospital policy was she should have been seen by the antenatal team earlier in her pregnancy when the damage caused by the FGM could have been repaired.  For whatever reason, this hadn't occurred.  Dharmasena himself had not encountered FGM previously, nor undergone training on it.  After making a number of cuts to the patient in order for the baby to be delivered, it was born safely.  The bleeding however didn't stop, and on the spur of the moment he put in a single continuous suture in a figure of eight.  Hospital policy was the damage should not have been repaired in such a way, and was considered to be in effect reinfibulation, or carrying out the FGM again.  An investigation by the hospital after Dharmasena himself raised concerns over his actions recommended further training and a "period of a reflection".  It was also, fatefully, referred to the Metropolitan police.

 Almost as soon as the prosecution was announced doctors responded anxiously, saying there was a world of difference between a repair being made during delivery of a baby and actual FGM.  Calls for it to be dropped were however ignored, and the judge during the trial also rejected 3 separate attempts by the defence for the case to be thrown out.  Even so, it took the jury little more than 30 minutes to decide Dharmasena was not guilty.

 On the face of it, as the campaigning midwife Comfort Momoh commented, what Dharmasena did was against the law on FGM.  This was surely though a case with extenuating circumstances, which in itself shows how further training is needed for doctors, let alone other health workers and civil servants.  In the end the jury reached the correct decision and Dharmasena seems likely to be able to carry on as a doctor.  It should also though concentrate the minds of journalists over the power they have to affect policy, and just how easily it can lead to good people being made scapegoats.

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2/05/2015 10:41:00 pm | |

Thursday, November 13, 2014 

The downfall.


Ah, Mazher Mahmood.  Time was all we had to identify him were a couple of grainy photos filched from an Albanian newspaper website, obtained by them from who knows where and which also soon disappeared down the memory hole thanks to "Maz's" ever busy legal beavers.  It took a long damn time, but the collapse of the Tulisa Constovalos drug trial finally prompted a media organisation to challenge Mahmood's claims his life would be put in danger should his true countenance be widely publicised.  The last time Maz tried and failed to prevent the media publishing his fizzog, winning a temporary injunction against among others, this blog, only the Graun went ahead and did so anyway.

Panorama and John Sweeney are thankfully more indefatigable beasts.  Twice Mahmood's lawyers forced the BBC to postpone the broadcast, first with the renewed claim he couldn't possibly be unmasked lest those he exposed come after him, always a risible argument considering his victims know his face all too well, and then after that failed with a challenge over the evidence involving John Bryan's procuring, or rather non-procurement of prostitutes.  With this last desperate attempt rejected, BBC1 was at last able to show the documentary last night.

And while for those of us who've followed Mahmood's activities down the years there was little we didn't already know included, the exception being the claims of Mahmood's links to corrupt Met officers, you can more than understand why he and News UK tried everything to stop it from airing.  Apart from identifying Mahmood, his methods were laid bare, vignettes taken from the secret recordings made by his team which he and the News of the World never wanted you to see.  John Alford declaring himself teetotal, with Mahmood then urging him to drink anyway, page 3 model Emma Morgan given cocaine by the person she was then entrapped into "buying" it from to supply to Mahmood, Constovalos made to believe she was being considered for a role in a Hollywood film alongside Leonardo DiCaprio as she was the obvious choice to play a "bad girl"; whoever the source was for the material, and the guess would have to be it came from within News UK, it showed Mahmood in just about the worst possible light.

As contemptible as Mahmood is, this was never about just him.  Mahmood could only work as he did for so long with the support of first the News of the Screws, and then following its sad demise, the Sun on Sunday.  It should be stressed that on occasion, Mahmood's entrapment tactics produced important, genuinely in the public interest stories, such as the corruption he uncovered involving the Pakistani cricket team.  Those kind of targets didn't satisfy either him or his editors though, nor one could say did they NotW readers.  No, instead they had to stitch up foolish but otherwise decent people somewhat in the public eye, such as Emma Morgan, Johnnie Walker or the Earl of Hardwicke.  At his very worst, he and his team concocted entire fictional plots, whether it be the one to kidnap Victoria Beckham, with the trial of those accused collapsing when it become public Mahmood had paid the man who "informed" him of the nefarious deal, or the "red mercury" plot, with those entrapped thankfully found not guilty.

Yet despite these failures, both the police and the Crown Prosecution Service continued to work with him, going ahead with cases such as the one involving Constolvalos when it was an obvious example of entrapment.  They carried on doing so even after the Screws was put out of its misery, and as we now know, 3 further cases have been dropped as Mahmood was to be the key witness.  It's possible other previous cases could now be the subject of appeal, especially if Mahmood is charged with perjury and attempting to pervert the course of justice over the collapse of the Constolvalos trial as many expect.

Indeed, as Roy Greenslade writes, this level of protection seems to be continuing, as the attorney general asked the BBC not to screen the docu.  Presumably on the basis it could make it more difficult for Mahmood to get a fair trial should he be charged, the real objection is more likely "Maz" and his editors still have friends in high places.  Why else would News UK still be providing Mahmood with their largesse for vexatious litigation when he is supposedly on suspension, unless they still have a glimmer of hope that he could still return?

Regardless of that wishful thinking, Mahmood is finished.  The real motivation behind his attempts to stop Panorama was not over his safety, but his ability to carry on as before.  His methods detailed, his visage shown, few will now make the mistake of being drawn in by the image and boasts of a serial offender.  And with him, hopefully, also ends another disgraceful period in British journalism.

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11/13/2014 10:59:00 pm | |

Monday, July 21, 2014 

Complicit in the lies of a serial offender.


Regular readers will know it takes a lot to stagger me.  Cynicism comes easily, because it is so easy.  Think the worst, and then you won't be let down come the inevitable.  There are no heroes only humans, and we are flawed flesh and bone, all with our own prejudices, failings and traits.

Sometimes though you still can't help but be blown away by just how unbelievably stupid supposedly intelligent people are.  In fact, in this instance stupid doesn't cover it.  The only word that even comes close to accurately describing the Crown Prosecution Service's original decision to prosecute Tulisa Contostavlos is fuckwitted.  A lawyer earning no doubt good money looked at the "investigation" carried out by this blog's favourite journalist, hopefully soon to be ex-journalist Mazher Mahmood, and felt, yeah, this isn't the most obvious example I've ever seen of entrapment, and told the CPS there was a realistic chance of conviction.  The CPS then reviewed his decision, and went along with it.  Then the judge, despite the defence making what has to be one of the most compelling applications for the case to be thrown out on the grounds Mahmood is a lying sack of shit, allowed it to proceed.

Only for Alistair McCreath to days later discharge the jury and find Contostavlos and her friend, Michael Coombs, who had already admitted supplying the cocaine after Mahmood asked Contostavlos to get some for him, not guilty.  Why?  Because Mahmood it seems put pressure on his driver, Alan Smith, to change his statement, having first told the police Contostavlos had spoken of her opposition to drugs as a family member was an addict as the pair talked in his car.  At the legal arguments pre-trial Mahmood denied he spoke to the Smith at all, only for Contostavlos's QC, Jeremy Dein, to winkle the truth out of Mahmood under cross-examination last week.  He had indeed discussed the statement with Smith, he just didn't have anything to do with him altering it.

Even now I can't begin to get my head round how Mahmood's latest and clearly for him most disastrous entrapping of a celebrity got to the point of being put before a jury.  Back in June last year the People, whether through speaking to Contostavlos and/or her management or a disgruntled source at the Sun wrote up an almost completely accurate blow-by-blow account of how the former X-Factor judge was enticed by Mahmood, although it didn't explicitly state her arrest and the "hoax" were connected.  They flew her to Las Vegas (either in first class or by private jet, according to whether you believe Mahmood or the People), telling her she was going to star in a Slumdog Millionaire-type film as a "bad girl" making the journey from London to India, possibly alongside Leonardo DiCaprio.  As in previous stings, Contostavlos was plied with alcohol, her defence going so far as to say her drink was spiked on one occasion, before Mahmood then sprang the trap.  Desperate to get the part, having been told Keira Knightley was also being considered for the role, she arranged for Coombs to supply Mahmood with his requested "white sweets".

Regardless of what you think about subterfuge by journalists, and the PCC code makes clear it can only be justified in the public interest, the person in this instance commissioning a crime is the hack, not the celebrity.  Not only that, unlike in other instances where those involved step back at the last minute, the evidence their target is willing to go along with their request acquired, Mahmood's drug stings have nearly always involved the actual supply of the banned substance.  By accepting such a level of skulduggery was permissible, despite the relatively slight nature of the offences committed, both the police and the CPS became complicit in Mahmood's abuse of power, not to forget lies.  Nor is this anything like the first time they've been embarrassed by Mahmood's mendacity and the Murdoch tabloid stable's hyperbolics: the Victoria Beckham "kidnap plot" trial collapsed after it emerged the key witness had been paid, while the "red mercury" case ended with all the defendants acquitted.

Indeed, yet again the court system gave in to Mahmood's bullshit, the myth of the man as tabloid investigator extraordinaire.  He gave his evidence from behind a screen, to both protect him from enemies and so as not to give away his identity to those he might yet seek to stitch up.  No matter that his visage has been available online for years now, or that, err, his victims know all too well what he looks like.  Also irrelevant is just how petty and cliche the drug dealer expose is; it's one thing to try and show corruption in sport, although Mahmood failed to do even that with John Higgins, it's another to get a pop star to show they know someone who can get drugs.  I mean, who knew they got up to such things?  It's not as though most of us have acquaintances whom dabble in illicit substances, and if tempted in the same way as Contostavlos was could just as easily find ourselves helping out a new VIP friend, clearly we're meant to regard this as a terrible indictment of the morals of our heroes.  What will the kids who look up to her think?  Nor do certain sections of the media encourage ambition and aspiration whatever the cost, oh no.

As well as being suspended by the Sun, Mahmood now faces the possibility of a perjury charge, another former News of the Screws hack accused of lying under oath.  This entire affair also gives the lie to the idea Leveson changed anything: still a Murdoch paper was prepared to do whatever it took just to catch out a jumped-up celeb.  How delicious then that someone like Tulisa (and admittedly her legal team) should be the one to finally pin the fake sheikh down.  This time, surely, there can be no way back for Mazher Mahmood.

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7/21/2014 04:54:00 pm | |

Tuesday, April 15, 2014 

Anonymity in the criminal justice system must not be undermined.

Regardless of the natural empathy you must have for Nigel Evans, it's difficult not to feel a little discomfort at how his acquittal was responded to by some of his fellow MPs. Evans had it seemed been hung out to dry, no one seemingly willing to speak up for him prior to the trial, not even the usual "friends of" who so often brief the papers and are correspondingly often the person themselves. Come last Thursday and suddenly it was as though none of his contemporaries had doubted his innocence for a second. Much as one suspects the reaction is somewhat to do with general dislike for John Bercow and the role he played in the arrest of his deputy, as well as continuing disgruntlement over Plebgate, you can't help but detect something else just below the surface.

Why else would there continue to be calls for those accused of sexual assault and rape to have the same right to anonymity as those making the allegations when no one believes the same protection should be given to those charged with murder or manslaughter? The character of the accused is often traduced in the same way, and the stigma that follows can if anything be worse regardless of acquittal: Colin Stagg is just one such example. While there is no anonymity for murder victims for obvious reasons so there isn't a direct parallel, anonymity doesn't make giving evidence any easier for those often then aggressively interrogated by the defence: the suicide of Frances Andrade makes that clear.  In the past I've been suspicious of calls to rebalance the criminal justice system in favour of the victim, and I don't think Keir Starmer's suggestion to consider a move away from the adversarial system is workable, but his helming of a review for Labour is certainly a step beyond Blair era tabloid pleasing efforts.

It certainly doesn't help the message to listen to those who come forward saying they were abused when MPs make it clear to one of their own that she should be examining her conscience.  Sarah Wollaston did absolutely nothing wrong in first making an appointment for two of the men accusing Evans to see John Bercow, and if anyone doubts that despite the failings of the wider prosecution case there were questions for Evans to answer, they should see the interview Newsnight conducted with one of them.

None of this is to deny that the CPS and the police do have questions to answer over its handling of the wider evidence.  Most of the men approached believed their brushes with Evans had not been abusive, and maintained that from the outset.  In this instance the attempt to create a picture of a wider pattern of abuse than just one or two alleged incidents completely undermined rather than strengthened the case.  Much the same has been apparent in the other recent trials of high profile figures, where defences have picked apart faded memories and juries have taken the word of the celebrity rather than their sometimes confused and uncertain accusers.  As Wollaston argues in her piece for the Telegraph though, there is a danger both in politicians criticising the CPS and in the wider emphasis on the questions surrounding anonymity.  In the case of Stuart Hall it was other victims coming forward after he was first arrested that almost certainly led to him pleading guilty.  As I also noted on Thursday, while Evans was understandably exciting much opinion at Westminster, the even more farcical evidence presented by the prosecution in the Nicky Jacobs trial went almost entirely ignored.

Coming after the Maria Miller storm, the last thing MPs ought to be seen as doing is special pleading.  Some never seem to get truly exercised about anything until it hits them personally, such as during the Damian Green case, or Plebgate, only then it occurring that if it can happen to them it can happen to anyone.  The fact is Evans' case is not unique, and the real irony is it's a change to legal aid by his government that looks set to mean the CPS won't be paying his costs.  Much as you don't want it to be the case, at times politicians give the impression some victims are more deserving than others.

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4/15/2014 10:50:00 pm | |

Thursday, April 10, 2014 

PC Keith Blakelock: a question of conscience.

As they are wont to do when it comes to their own, various MPs have questioned the decision to prosecute former deputy speaker Nigel Evans following his acquittal today on charges of sexual abuse.  As the latest in a series of high profile figures to be found not guilty, it certainly does merit asking whether a jury is ever likely to favour the word of a member of the public over that of a celebrity when the alleged offence happened years previous, there were no other witnesses and also no forensic evidence.

Apart from local Tottenham MP David Lammy though, it seems no other politician commented on the acquittal yesterday of Nicky Jacobs on the charge of murdering PC Keith Blakelock during the riots on Broadwater Farm in 1985.  This was despite the case against Jacobs being even more farcical and ridiculous than any so far brought against a figure in the public eye.

The evidence against Jacobs, if it can even be described as such, amounted to accounts by witnesses known to have lied in the past, and two pieces of circumstantial.  Dealing with the latter first, it was found Jacobs had written a poem/rap which celebrated Blakelock's murder at the time he was serving a prison sentence for affray.  While providing an insight into the fact Jacobs was not the most pleasant of men at the time, there is nothing in it to suggest he had any insider knowledge of the killing; indeed, it refers to "chop[ping] him on the leg" and "chopping him all over".  While Blakelock's injuries were extensive and the result of a frenzied, brutal attack by multiple individuals, he was not stabbed all over his body, as his uniform with applied tape showing the puncture wounds proves.  Similarly desperate was the evidence given by a police officer who told the court Jacobs had said on being arrested in 2000, "fuck off, I was one of them who killed PC Blakelock".  The officer did not at the time report this to any superior, only coming forward in 2012.

Absurd as the above is, it somehow gets even more so.  The irony in the case was that two of the witnesses, given the false names John Brown and Rhodes Levin, have both admitted they took part in the attack on Blakelock.  The Met however made the decision to only go after the "stabbers" rather than the "kickers", enlisting the latter and ensuring they had immunity from prosecution.  As understandable as this is, it brings into sharp relief the continued use of joint enterprise to prosecute those who were present at the time of a murder but otherwise had no involvement.  Their accounts were further undermined by how they were paid lump sums of £5,000 and £2,500 back in the 90s despite their evidence not being tested at the time.  As Stafford Scott also points out, in July of last year Levin was found to have 63 bags of cocaine and heroin in his possession.  Rather than a custodial sentence, he received 12 months community service.  Brown also did himself no favours when he said to police in 93 that he couldn't tell the difference between black men, a view he told the court he "more or less" still held.

Remarkably, it got still worse for the prosecution.  Brown's cousin, a man known only as Q, also gave evidence that Jacobs was one of those who stabbed Blakelock.  While none of the three could agree on the weapon used, the others at least gave a plausible version of events.  Q by comparison claimed that earlier on the day of Blakelock's murder there had been two Rolls-Royces on the estate, from which black men had passed what looked sawn-off shotguns, and also got the location of the murder wrong.  The jury were so flummoxed they asked the judge if Q could have Korsakoff's syndrome, a condition brought on by chronic alcohol abuse where sufferers invent false memories to fill the gaps.  A long term heroin addict as well as an alcoholic, it didn't seem any less plausible than Q's own evidence.

To no one's surprise, the jury took just four hours to find Jacobs not guilty.  He wasn't released yesterday however, as almost all those acquitted of the most serious offences are on the same day; the officers needed to fill out the paperwork had already gone home.  Cock-up or conspiracy, it just underlines how it seems different standards were in operation for this case.  The Crown Prosecution Service has given the OK to flimsy trials in the past, but this must rank as one of the weakest in recent times, such was the obvious unreliability of the witnesses and the clutching at straws of the rap/poem.  Often it can be said in the CPS's defence that there was just enough evidence for the case to be put before a jury and to let them decide, as there was for instance in the case of Ian Tomlinson, despite the CPS at first deciding not to prosecute PC Simon Harwood. In this instance it seems more likely that the pressure from the police to find someone, anyone guilty of a murder that has cast such a long shadow over both the Met and Tottenham was too great for them to refuse and say there just wasn't a reasonable chance of a jury convicting.

Failing new witnesses coming forward who aren't tainted by having lied in the past, it seems increasingly unlikely that Blakelock's murderers will now be brought to justice.  As relations between the Met and the community in Tottenham never fully recovered and have since been further damaged by the shooting of Mark Duggan, any chance of such a development must also be extremely low.  Quite apart from giving Keith Blakelock's family justice, the obvious reason as to why it would benefit all sides if new witnesses were found is it would help to put a traumatic event firmly in the past.  Blakelock's murder still hangs over Broadwater Farm, tainting the estate and the men who were caught up in the police investigation.  The only way to lift that stigma is for the real killer(s) to be found.  The Met won't manage it, so it's up to those with a conscience to do the right thing.  The sooner, the better. 

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4/10/2014 09:52:00 pm | |

Thursday, October 22, 2009 

A very much precendented case of newspaper hyperbole.

Last night Keir Starmer, the head of the Crown Prosecution Service, gave his usual annual lecture to the public prosecution service. It was a typical lawyerly sermon, touching on both human rights and the independence of the prosecutors. Those who were there and awake probably didn't give it a second thought; Starmer gave a decent defence of the Human Rights Act, but hardly the strongest and most detailed one ever. The Telegraph however thought that this was somehow worthy of a splash. "An unprecedented attack", it bellowed, and since then the usual Tory suspects, the two Davies', have added their voices at this apparent broadside at Conservative policy.

Starmer, as it happened, didn't so much as mention the Conservatives, probably because he wasn't just attacking the Tories but also Labour. Here is what he did say:

However, one cannot escape, particularly in recent months, the debate that has emerged around the extent to which it is appropriate - and these are my words here - to repatriate the Human Rights Act and make it "more British."

While the Tories have promised to repeal the HRA and introduce a "British" Bill of Rights in its place, without of course providing any detail whatsoever as to what these rights would be and which might be different to those enshrined in the HRA, Labour has also continued to talk about a bill of Rights and Responsibilities, even though it has been shelved for now. These Rights and Responsibilities, Jack Straw hoped, would give a British feel to the HRA. It doesn't matter that, as Starmer points out, the European Convention of Human Rights, on which the HRA is based, was mainly drafted by us Britishers, because it's "European" in origin this somehow infers that it's a foreign creation imposed on us. The Sun, the main campaigner for a repeal of the HRA, has so often mistakenly referred to the ECHR as being a construct of the European Union when it is not and is entirely separate from it that it's difficult to believe it isn't being done deliberately.

The main flaw with any plan to repeal the HRA, something which Starmer doesn't mention, is that it's difficult to believe that we would also then leave the ECHR in its entirety, something we would have to do to make sure that the "criminals' charter" doesn't interfere with our law in any way, shape or form. All repealing the HRA will do is mean that breaches of the ECHR will not be able to heard in our own courts; instead those seeking redress will have to go to Strasbourg, and wait potentially years for their case to be heard, such is the backlog which has built up there and continues to mount. As Starmer argues, it's absurd that rights which the rest of Europe has never had any problem with should "stop in the English Channel". After all, even Russia is signed up to ECHR, even if it isn't as proactive in falling into line with its rulings as the more democratic nation states of Europe are. The closest Starmer gets to really attacking those who wish to do away with the HRA is this line:

And it would be to this country's shame if we lost the clear and basic statement of our citizens' human rights provided by the Human Rights Act on the basis of a fundamentally flawed analysis of their origin and relevance to our society.

It doesn't really help the Tories' cause that Starmer is entirely right. The main reason why the Conservatives want to get rid of the HRA is not because it's a criminals' charter or any of the other things which its critics say it is, but because from the very beginning the press, and especially the Sun and the Daily Mail, have been worried about its implications for their business model. Article 8, the right to privacy, has meant that the tabloids can no longer be certain that their celebrity stories and sex scandals will get into the papers unmolested, or if they do, that they won't then be brought up before the beak afterwards. There is, it must be noted, potential for abuse of Article 8, but this is slight when compared to the overall benefits which the legislation as a whole brings. In any case, the real threat to press freedom is not Article 8 but our libel laws and the tenacity of the libel firms and their pursuit of "super-injunctions", as last week's assault by Carter-Fuck on behalf of Trafigura showed. The supposed "madness" which the HRA has brought is partially dealt with by Starmer, although not fully:

A police force unable to circulate a photo of a wanted, dangerous and violent criminal because it might breach his Article 8 rights to privacy? My advice - go ahead - it is essential to protect the public.

Unelected judges can now tell Parliament that their laws need not be enforced? No - judges cannot strike down legislation.

Human Rights mean that school teachers cannot enforce discipline at school? No - it is domestic legislation - section 548 of the Education Act 1996 - passed 2 years before the Human Rights Act - that banned corporal punishment in schools. Interestingly enough, it is section 93 of the Education and Inspections Act 2006 - passed 8 years after the Human Rights Act - that now allows school teachers to use reasonable force to prevent a pupil from committing an offence.

It is often in the interests of those who want to debase a principle to chip away at it by citing examples of its occasional misapplication. We should all take care to examine critically the so-called restrictions brought about by the Human Rights Act and consider where the misunderstanding truly lies before condemning a constitutional instrument that has provided legitimate comfort to so many.


Some of these I've touched on before, but it's indicative of the misinformation which surrounds the HRA that the Telegraph in its report repeats the myth that Learco Chindamo, murderer of headteacher Philip Lawrence, couldn't be deported back to Italy when he finished his sentence because of the HRA. It was in fact because of the EU's 2004 directive on citizenship, but as usual the initial myth has become fact.

Has Starmer though strayed into politics with his pronouncements, something that the head of the CPS shouldn't be doing? Despite the Telegraph's suggestion, the previous head of the CPS, Ken Macdonald, did something rather similar in a speech to the Criminal Bar Association, where he made clear his view that terrorists should always be treated as criminals, and that there was no such thing as a "war on terror", something uncontroversial now, but rather more heated back in 2007 when the attempt to ram through 90 days without charge was fresh in the memory. Macdonald also made clear on a number of occasions that he felt 28 days detention without charge for terrorist suspects was sufficient, something which was hardly popular with the government, and which was definitely straying into politics. Few now object when the police demand new powers, although they should; why shouldn't the head of CPS express his view that the Human Rights Act shouldn't be abolished? Is it that it's only when it's the government that it's critiquing that it's OK, when if it's (perhaps) the opposition that it isn't?

The Tory plan to repeal the HRA has always struck me as something which they're likely to forget about once they actually do get in power. Labour has thrashed around hopelessly with the Rights and Responsibilities idea, and if you really believe that the Tories are more suited to constitutional change for the better, I don't think you've been paying enough attention. It's true, as Henry Porter has argued repeatedly, that the HRA has not prevented this government from its attacks on civil liberties, but the key to that is not more legislation, but better governance in general. It seems just as unlikely we will get that from the Tories.

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10/22/2009 08:50:00 pm | |

Wednesday, September 16, 2009 

Falling for Columbine.

When a jury manages to see through a court case that lasted for two weeks within 45 minutes, it's only natural to wonder whether it should have ever been brought. When it involves two teenagers who had previously never been in trouble with the police and their being kept on remand in a young offender's institution and Strangeways respectively for 6 months, it becomes a necessity.

Both Ross McKnight (the son of a police officer, no less) and Matthew Swift were found not guilty of conspiracy to murder and conspiracy to cause explosions, their plans for a supposed massacre at a school in Manchester as well as the bombing of a shopping centre on the 10th anniversary of the Columbine massacre ripped to shreds both by the defence, McKnight's father, who seemed to have sealed the verdict when he talked of his son's many "harebrained" schemes and finally by the jury. What really seems to have gone on here is nothing more than teenage angst and alienation being taken slightly too far up the scale. The rants the pair wrote in diaries are hardly out of the ordinary: the only real surprise might be that they didn't post them on a social networking site or somewhere else where they were even more easily accessible. The other slight indication that this went any further than just two friends messing around and engaging in fantasies was that they had "plans" of the school, although whether these were just simple sketches of outlines which they made themselves or genuine plans we don't seem to know.

It's easy to make presumptions, but you can't help but feel that if they hadn't mentioned Columbine or supposedly fetishised the two murderers who carried out that most notorious of school shootings, Eric Harris and Dylan Klebold, or were meant to have planned to carry it out on the anniversary of their assault, that this "plot" wouldn't have got anywhere near the court system. There is indeed perhaps some cause for concern in this area: it's quite true that some teenagers, especially those who feel themselves outsiders or not accepted by their peers, not to mention those who are bullied, can engage in the kind of fantasies which these two boys were meant to have, and while such feelings of striking out at those that have harmed them are natural and are very rarely acted upon, they do need to be nipped in the bud. Some of those at the very extreme end of this type of thinking do indeed idolise the likes of Harris and Klebold; Seung-Hui Cho in his claim of responsibility for the Virigina Tech massacre referred to both as martyrs, and there is a strain of thinking surrounding such spree-killers that all such attacks are in fact copy-cat crimes, a view that I'm partial to. The vast majority though who dream or fantasise about doing violence to their tormentors never do; hell, I can even remember at one point during my early teenage years writing a list of those that I'd kill if I had the chance. As far as I'm aware I never carried through on my written promise.

Undoubtedly the female friend that reported McKnight's drunken referral to the supposed attack was right to let the authorities know of her concerns. That was though surely as far as it should have gone. Dave Osler compares the case to that of the "lyrical terrorist", Samina Malik, but if anything a far wider comparison to terrorism is equally applicable. Just as in cases like that involving Dhiren Barot, neither McKnight or Swift had the guns or explosives necessary to carry out their plans, nor the funds to get hold of them but they did have ideas or nous which suggested they could have done. As it happens, Barot's ideas were even more fantastical than the teenage pair's were, whether it involved destroying builders by filling limos with gas canisters, a plan thoroughly debunked by the Glasgow airport idiots, exploding a bomb on the Underground which would somehow penetrate the tunnel and cause the Thames to flood in, or constructing a dirty bomb out of smoke alarms by placing the americium he harvested from them in a coke can. He however was sentenced to 30 years in prison, more on the fact that he had been trained and probably had connections with al-Qaida, even if his ideas were even more harebrained that McKnight's. Interesting here is that Swift had a copy of the Anarchist Cookbook, a book which another teenager was previously prosecuted for possessing, despite it being freely available, as well as also a gun which could fire ball bearings. You can bet that if someone with links to extremist Islam had either that they would have also been indicted on similar charges.

The terrorist trials where the prosecution have tried and almost always convinced juries that that extremists were only days or weeks away from mass murder or horrific casualties are perhaps the significant precursor to both the police and the Crown Prosecution Service imagining that they could do much the same in this instance. It does though have to be asked, did they genuinely believe their own case, or rather did those unlucky enough to prosecute it believe it? It certainly doesn't seem, for instance, that the headmaster of the school believed it. There is of course a very fine line between caution and a potential tragedy, but in this instance what just seems to have been very normal teenage ennui could have been criminalised, and if they weren't bitter and depressed prior to their time on remand, McKnight and Swift very well may be now.

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9/16/2009 09:44:00 pm | |

Wednesday, September 10, 2008 

Crying over spilt liquid part 3.

The Crown Prosecution Service is rather unsurprisingly seeking the retrial of all 7 men in the "liquid bombs" case, on all the charges which the jury couldn't reach a verdict on. While this was always likely, the question has to be asked: what makes the CPS so certain that a second jury won't come to the same verdict if there is no new evidence presented to prove that the plot was to explode liquid bombs on aircraft? As noted ad nauseam already, the actual amount of evidence pointing towards the targeting of transatlantic flights is relatively slight. Originally this was brushed off as being down to how the police and security services had to act quickly due to the arrest of Rashid Rauf, but today a "security source" said this to the Grauniad:

"Even if [the surveillance operation] had gone on for a few more days we would not have found anything better as evidence than what was found in the first 24 hours," the source said.

This is surely either bluster or an attempt to heal the wounds with the Americans, notoriously prickly about their own counter-terror and intelligence efforts. If this plot genuinely was going to target aircraft, surely if the plotters had purchased tickets or had all received their passports that would have made a huge difference to the prosecution case. As it is, one jury has already failed to be convinced by the evidence which this source thinks couldn't have been surpassed.

To go onto more speculative territory, you have to wonder whether this case might help persuade the security services that it's time that intercept evidence was made admissible in court. Considering the breadth of the operation which was undertaken to monitor the suspects, and as yesterday's Panorama showed, this more or less entailed following the main players wherever they went, it would be difficult to believe if they hadn't been bugging their phones or otherwise. While it might not provide the ocular proof if they were as guarded as they may have been, the continuing refusal to admit such evidence becomes more and more untenable as time goes by.

Then, finally, there is Rashid Rauf himself. Does anyone honestly believe the story that he happened to escape whilst being allowed to pray in a roadside mosque, or even that the policemen were bribed into letting him go? His lawyer has suggested that he believes he might have been taken into the black hole which is the ISI's detention, but is it so outlandish to imagine that he might have instead been transferred into US custody and is now languishing in one of their remaining black sites? A few years back that could of easily been dismissed as a fanciful conspiracy theory, but can we completely rule it out now? The lack of condemnation from our side, despite our apparent willingness to arrest two separtists which the Pakistan government requested in return for Rauf might speak volumes. Then again, perhaps Occam's Razor should be applied until there is any compelling evidence to prove otherwise.

We should of course wait and see what this second jury decides. If they do reach the same lack of a verdict which the first did, it will then be highly significant what decision is then taken as to what should be done with them. More compelling evidence could potentially still be revealed. It's hard not to imagine however that if a second jury "fails" in the same way which the first did, that it may well mean the introduction of the very measures which Peter Clarke so boastfully but also sinisterly mentioned we had not yet resorted to yesterday.

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9/10/2008 10:08:00 pm | |

Monday, January 14, 2008 

Prosecuting rape correctly.

As high-principled and well-meaning as the Guardian's sort of campaign for an increase in rape convictions is, you can't help that feel with their highlighting of the plight of Beth Ellis (a pseudonym) they haven't exactly chosen one of the easiest cases to prosecute.

Whether you can even really put it down as rape or not is one matter, as most would consider it continuous child molestation within the family. As harrowing as Ellis's account of her time after making the complaint to the police is, you have to look at it from the other point of view. They're being asked to investigate crimes that took place the best part of 10 to 20 years ago in a family setting, with Ellis and her mother's accounts of what happened on the one side, with her sister detailing physical instead of sexual abuse, with the denials and countering argument of the her stepfather (the accused) and his son that they had a happy family. There's no forensic evidence; just the testimony of Ellis, and she had the added help of being provided with a QC by the Guardian and a criminologist who said that her flashbacks and panic attacks were consistent with the aftereffects of being abused as a child.

The article itself goes into the details of how the prosecutor didn't speak to her, didn't take evidence on her trauma symptoms and also dismissed the evidence of her mother, who had an affair whilst married to the man in question, because of her "sexual history", out of hand, but even if the case had gone to court, would a jury have convicted the man under such circumstances? Usually when teachers or others in positions of power have been prosecuted for molesting children years after the fact, there's been a number of those who were abused whose testimony was overwhelming as a result. Here it was just Ellis's word and that of her mother's against the man: would it have been enough on its own to prove the case beyond reasonable doubt?

The possibility of introducing evidence obtained by the women themselves via text messages or phone calls, potentially entrapping the perpetrator into incriminating himself looks attractive, but it also runs the risk of being too vague and being used maliciously, even if it's a minor concern. That has to be considered when the figures themselves show that 8% of cases which don't result in a charge are a result of false allegations. The Guardian leader is circumspect enough, suggesting an introduction of a two-tier offence of "aggravated" rape, so that juries could convict without the possibility of the offender being given a life sentence, but that also risks suggesting that some rapes are somehow less serious than others, which when battling misconceptions and prejudice about rape is hardly the message to be sending. All options do have to be looked at, but the starting point has to be changing attitudes in the CPS, especially those highlighted by the case of Beth Ellis.

Reading her diary it's impossible for your heart not to bleed at the pain and suffering she's lived with after a childhood destroyed by abuse. Would she have gained closure though from a successful prosecution? The very last thing you want is for women not to come forward with accusations, but was she perhaps naive in thinking that almost any system would have not delivered the same crushing blow as that when the CPS decided not to prosecute? Would failure in court have hurt even more? It is of course incredibly easy for me to sit here in judgment and ask glib questions, especially when, as a young man, I'm probably the least likely demographic to be the victim of sexual assault and also probably the most likely to commit one, and I don't want to seem in any way cold-hearted, but in a case as difficult as hers, is there any way we can make conviction or even trial more likely without also opening up major possibilities for miscarriages of justice? Once again, it's a question we're not likely to find an answer to.

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1/14/2008 08:45:00 pm | |

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