Not Saussure

May 19, 2007

Judicial Ignorance

Filed under: Internet, Law — notsaussure @ 4:01 pm

Much comment, particularly at The Magistrate’s Blog) about Mr Justice Openshaw’s rather unfortunate remarks about his purported ignorance of this interweb thingy:

A British judge admitted on Wednesday he was struggling to cope with basic terms like “Web site” in the trial of three men accused of inciting terrorism via the Internet.

Judge Peter Openshaw broke into the questioning of a witness about a Web forum used by alleged Islamist radicals.

“The trouble is I don’t understand the language. I don’t really understand what a Web site is,” he told a London court during the trial of three men charged under anti-terrorism laws.

Prosecutor Mark Ellison briefly set aside his questioning to explain the terms “Web site” and “forum.” An exchange followed in which the 59-year-old judge acknowledged: “I haven’t quite grasped the concepts.”

Violent Islamist material posted on the Internet, including beheadings of Western hostages, is central to the case.

Concluding Wednesday’s session and looking ahead to testimony on Thursday by a computer expert, the judge told Ellison: “Will you ask him to keep it simple, we’ve got to start from basics.”

Younes Tsouli, 23, Waseem Mughal, 24, and Tariq al-Daour, 21, deny a range of charges under Britain’s Terrorism Act, including inciting another person to commit an act of terrorism “wholly or partly” outside Britain.

Tsouli and Mughal also deny conspiracy to murder. Al-Daour has pleaded not guilty to conspiring with others to defraud banks, credit card and charge card companies.

Prosecutors have told the jury at Woolwich Crown Court, East London, that the defendants kept car-bomb-making manuals and videos of how to wire suicide vests as part of a campaign to promote global jihad, or holy war.

The trial continues.

As Bystander JP notes, the Judicial Communications Office , has issued a statement explaining something that, I hope, was clear to anyone who understands how courts work:

A media report on a judge reported as saying “I don’t really understand what a website is” has been taken out of context

News reports have appeared implying that Mr Justice Openshaw, in the course of proceedings, did not understand the term ‘website’.

In fact the Judge is currently in the fifth week of presiding over a trial which is largely based on computer generated evidence. Evidence is being provided by expert witnesses that will inevitably be of a specialist nature.

Trial judges always seek to ensure that everyone in court is able to follow all of the proceedings. They will regularly ask questions – not for their own benefit – but on behalf of all those following a case, in the interests of justice.

In this specific case, immediately prior to the judge’s comment, the prosecution counsel had referred to various internet forums with postings of comments relevant to the case. Mr Justice Openshaw was simply clarifying the evidence presented, in an easily understandable form for all those in court.

Mr Justice Openshaw is entirely computer literate and indeed has taken notes on his own computer in court for many years.

But, as Bystander says, the damage is done;

the words that he spoke will have reinforced the impression among the less-cerebral classes that the judiciary as a whole are a lot of out-of-touch old duffers who have trouble remembering how to tie their shoelaces.

Seems to me that the learned judge faced a difficult problem. Forensic evidence is frequently very difficult. You can’t have a situation whereby — as is the very real risk with forensic evidence — someone comes in and says to the jury, I’m the expert and take it from me, that woman must have murdered her children and those Irishmen accused of planting bombs in Birmingham must have been handling explosives and the jury has to accept it.

It has to be tested, and, if the defence have — for example — perfectly reasonably asked the forensic expert how he can be sure, beyond reasonable doubt, that a message posted on an internet forum by ‘The Masked Avenger’ was, in point of fact, sent by the defendant rather than anyone else in the world who has access to the internet and who might have chosen that soubriquet, the answer can get very complicated indeed. And the jury has to understand the answer if there’s to be a fair trial, which is what the system’s supposed to be about.

What’s the judge to do? Say, ‘well, I understand what you’ve just told us, but half the jury look completely bemused, so please spell it out in words of one syllable that even an idiot can understand’?

For a major trial like this, Mr Justice Openshaw will of course have spent weeks reading the case papers, including both the witness and case statements, so obviously he’s going to have a pretty fair idea of what Dr Strabismus of Utrecht, the world -renowned expert in whatever it is, is going to say and why it’s important. He may even, having come across technical matters he doesn’t understand, have used Mr Google’s remarkable machine — or asked his grandson to work it for him — the better to have informed himself on the topic. The jury, though, don’t have that advantage.

Clearly the remark was, in the event, unwise, since the press are all too pleased to find a judge asking something like ‘Who are the Beatles?’ , since that all goes to show that these old duffers who’ve spent their entire careers dealing with alleged criminals and their victims don’t know half as much about anything as do the editor of the Daily Rant and his readers (to whom, God help us, the Home Secretary — who knows far more about anything than does anyone, of course, and particularly about how to get himself and his party re-elected — has to listen).

But the judge still has to ensure a fair trial — fair to the defendants and fair to the Crown — which means making sure the jury can follow what’s often highly technical evidence. Or, even if I don’t think it’s highly technical, the man who fixes my central heating (and can’t believe my depths of ignorance on that topic, though he’s astonished at my ability to build his website for him) might find it confusing. And either of us might find ourselves on a jury, asked to decide about someone’s liberty and reputation.

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8 Comments »

  1. I know what a website is. However, I am confused by the technical terms. I seek clarification, what’s a judge?

    Comment by jailhouselawyer — May 19, 2007 @ 5:15 pm

  2. An old, out-of-touch duffer in a wig.
    In the modern world, we should have trials conducted on reality-tv and the outcomes decided partly by a combination of a panel of experts, certainly including John Reid and Michael Howard, but ultimately decided by a phone-in vote.

    Comment by notsaussure — May 19, 2007 @ 5:48 pm

  3. Not so much of the “old duffers”! I happen to be President-for-Life, chairman and so far, alas, the sole member of S.O.D.S., the Save Old Duffers Society. All contributions welcome but no cheques please!

    Comment by David Duff — May 20, 2007 @ 11:18 am

  4. You are, indeed, a treasure to the nation, Mr Duff, whose preservation must be ensured at all costs.

    And I fully understand your preference for cash in hand. So much simplifies the accounting, I always find.

    Comment by notsaussure — May 20, 2007 @ 12:34 pm

  5. If he is so bloddy brilliant why did he phrase it like that.

    ‘Can you explain for the less technical what a website is and how it works’

    I still think it was for him. This answer does not fit with the question. “The trouble is I don’t understand the language. I don’t really understand what a Web site is,” Judges do not care about others feelings just rule of law how else can you justify some of the things they say. Did the judge who said a girl deserved rape because she was skimpily dressed say it on behalf of the others?

    A PR excercise to save some old out of touch duffers face.

    Comment by Dave Petterson — May 20, 2007 @ 12:39 pm

  6. It was, with hindsight, not a particularly bright thing for Mr Justice Openshaw to have said, certainly. But most of us, I think, have now and again said something in a meeting and immediately wished we’d put it differently. Most of us, of course, don’t have a Sun reporter to record our remarks, either.

    Judges go on in-service courses all the time. Certainly, they can’t hear rape and other sexual assault cases — they’re not allowed to — unless they’ve successfully completed specialist judicial training in how to run such trials, which was brought in precisely to avoid incidents like that idiot who made the remark you quote — which was, as I recall, some 20 years ago, and I really don’t think it’s fair to base your views of the judiciary primarily on one of the most stupid things that a judge has said in the last 20 years.

    I don’t know whether there’s a similar formal requirement for handling big cases involving hi-tech crime, but I do know that it’s inconceivable a judge who really didn’t know what a website was would be given a trial like this one.

    Comment by notsaussure — May 21, 2007 @ 2:48 pm

  7. […] via Not Saussure […]

    Pingback by "What is a website", asks judge in cyberterrorism case... « Tech Interest — May 23, 2007 @ 12:24 pm

  8. […] via Not Saussure […]

    Pingback by “What is a website”, asks judge in cyberterrorism case… : Tech Interest — July 10, 2007 @ 3:32 pm


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