Not Saussure

June 8, 2007

Compassionate killings and euthanasia

Filed under: Law — notsaussure @ 5:30 pm

In the course of replying some of the many comments to my piece on Nadine Dorries MP on abortion, I said I’d also give my views on the related — but, to my mind, distinct — topic of assisted suicide and euthanasia.

It’s distinct, to my mind, because whatever views one has about when life begins, there’s no doubt that it’s begun by the time you’re born. Consequently, we’re talking about deliberately ending a human life, and this is something on which I have very mixed views indeed. It’s also something about which I had to give very serious thought indeed during my late wife’s final illness — thank God, it never came to it, but it obviously was something we had to discuss as very real possibility, and I also had to think very seriously about what I would and wouldn’t be prepared to do under certain circumstances.

The short answer is that, if the worst had come to the worst, I’d have helped my wife to die in the manner she wanted, and I’ve have been prepared to take the legal consequences. It would certainly be far preferable were the law on homicide were altered to make it easier to convict for manslaughter in such circumstances, at the Law Commission Report on Murder, Manslaughter and Infanticide (pdf) suggests (see Part 7 for a lengthy discussion), but even this — as the Commission’s discussion makes clear — is horribly complicated. As they say,

Under the current law, the compassionate motives of the ‘mercy’ killer are in themselves never capable of providing a basis for a partial excuse. Some would say that this is unfortunate. On this view, the law affords more recognition to other less, or at least no more, understandable emotions such as anger (provocation) and fear (self-defence). Others would say that recognising a partial excuse of acting out of compassion would be dangerous. Just as a defence of necessity “can very easily become simply a mask for anarchy”, so the concept of ‘compassion’ – vague in itself – could very easily become a cover for selfish or ignoble reasons for killing, not least because people often act out of mixed motives.

And, if you do introduce ‘compassion’ as a partial defence, then to whom do you make this defence available? In the words of the Law Commission,

were we to recommend a partial defence of ‘mercy’ killing, there would be very difficult questions regarding its scope. For example, to what extent should the defence be open to secondary parties? Should it be limited to those who have a close personal relationship with V or should it also be available to professional and semi-professional carers? In relation to this second question, Dr Jonathan Rogers has suggested that the solution lies in distinguishing between, on the one hand, professional carers who kill, and on the other hand, family members who kill. The idea is that the latter should have a partial excuse when the former would not.We recognise the force of this argument, but there are problems with it. Justificatory considerations are liable to feature in the motivations of both groups. Moreover, some might argue that it is actually less excusable to rely on a purely personal judgement that another’s life is not worth living than it is to rely on a professional judgement to that effect (for which one is responsible to others as a professional). We offer no view on that argument but it shows the difficulty that must be faced in coming to conclusions that will be acceptable to a large majority of people.

It is, I think, essential that any compassionate killing face a judicial enquiry after the event — the idea of going to plead the case beforehand and getting judicial permission, as currently doctors and families have to do when they want to turn off life-support machines — fills me with horror, partly at the thought of what such proceedings would be like but also at the practicalities of the decision; I mean, where does this leave a couple who’re refused advance permission by the court? Presumably their views won’t have changed. And for how long does this permission last?

The problem is that, while we can all easily see circumstances in which we’d want someone to help us to die, it’s also very easy to see how this could be abused. People do, after all, act from mixed motives. People also find suffering from, and caring for someone who suffers from, a chronic degenerative illness a hell of a strain, which doesn’t always do wonders for your judgement; the certainty the surviving party is going to have to explain himself (and usually is him in such cases, apparently) to an impartial, though, one would hope, sympathetic tribunal and risks punishment if his explanation isn’t adequate is, I think, a very important safeguard for both parties — I say ‘both’ since the knowledge that your partner will go on to face trial would, I think, concentrate the mind of the would-be suicide on whether she or he really does want to ask their partner to do this.

As to the more general question of state-approved euthanasia, that seems to me not just a slippery slope but dancing on the edge of a precipice. Yes, we can all think of situations in which we might think we’d want to die and not want to involve a loved one (or not have anyone we could ask, of course) but the potential for abuse is so vast that the cure seems far worse than the problem. What to do, for example, with the elderly demented who’re in the care of the NHS or social services because they have no one else to whom to turn? They can’t make a rational decision about the quality of their lives; do we really trust Patricia Hewitt, with her understandable concerns for balancing the NHS’s books, to make that sort of decision for them? I’d think twice about trusting her to look after a goldfish, let alone to make life and death decisions (literally) about me, no matter demented I was.

Again, it’s one of those situations where there isn’t a right answer; there’s only a least bad one. Anyway, my thoughts on the matter, as promised.


June 4, 2007

Brown, intercept evidence and disclosure

Filed under: civil liberties, Law, War on Terror — notsaussure @ 7:07 pm

Craig Murray, our sometime man in Tashkent, sounds a note of warning about Gordon Brown’s proposal to allow intercept or wire-tap evidence in terrorism cases.

He writes,

The concern [in the Home Office] is that intercept evidence might be more helpful to the defence than the prosecution. Where communication intercepts are used, as in the USA, the laws of evidence are that the prosecution must make complete disclosure of all the wiretaps made. The defence can then search this for evidence that points to innocence.Compare this to the situation that operates with control orders, or indefinite house arrest without trial. Here the prosecution just feeds to the judge (no jury) an isolated snippet of information from “intelligence”, reflecting not a whole picture but just the security services’ interpretation. Judges tend to be impressed by this “Top Secret” stuff.

To let the defence at raw intercepts threatens the intelligence services’ greatest lever of power – their monopoly of interpretation of raw data. Even Ministers, or Ambassadors as I was, don’t get the raw data, but a “Report” summarising, interpreting and selectively quoting.

In criminal cases in general, there are pretty complicated rules on ‘disclosure’ that are supposed to make sure the defence gets to see anything that may be relevant to the case, and in particular anything that may strengthen the defence or weaken the prosecution. And, most of the time, the defence can ask to see — and often insist on seeing — anything that’s been turned up during the investigation even if the prosecution don’t think it’s in any way relevant.

Now, according to Craig Murray, he’s been told by a friend of his who’s still in the senior civil service that

the proposal being considered by the Home Office is this – that the defence should not be allowed access to all the material from wiretaps of the accused. The prosecution would have to disclose in full only the conversation, or conversations, being directly quoted from. The security services are prepared to go along with that, and the Home Office believe that the public demand for wiretap evidence to be admissible will drown out any protests from lawyers. We will be told the Security Services are not staffed to cope with fuller disclosure.You read it here first. As my friend put it: “You see, in the minds of the Home Office, justice equals more convictions.

If this turns out to be the case, then it’s really rather sinister; it’s the equivalent to the defence only getting to see those witness statements that support the prosecution or, indeed, not getting to see the complainant’s past history of making false allegations. A good recipe, in other words, for miscarriages of justice.

Murray also raises the possibility that, slightly further down the line, doubts will be raised about the propriety of letting juries see some intercept evidence because of its security classification and that, a year or so from now, we’ll be seeing a move to introduce Diplock Courts in terrorism cases.

I don’t know about this, but it’ll certainly bear watching carefully when the detailed proposals are finally announced.

May 25, 2007

Dr Reid in discussions with the judiciary

Filed under: civil liberties, Law, UK, War on Terror — notsaussure @ 6:45 pm

The Home Secretary, House of Commons, 24 May:

I entirely accept that we should speak to a range of people, including retired members of the judiciary, but at the end of the day this is a matter for politicians. It is not a matter for judges or lawyers. They are a vital tool in interpreting existing laws, but it is for politicians to address the historical disjunctions that arise because of changes in the world. It is for them to address the law of conflict as it currently exists and its inadequacies in terms of the nature of today’s conflict, the law of peace and the disjunction between it and the nature of today’s peace—for we currently have something between war and peace—and the nature of the threat that we face. […]Let me put it simply. The European convention on human rights was intended to defend the individual from the unparalleled destructive capacity of the fascist state. That is what gave rise to it. People did not envisage at that time that the state and the community might now be under threat from the unparalleled destructive capacity of fascist individuals working in networks. That is what we face today. The arbitrary imposition of one’s will on another by destructive power is fascism, whether it emanates from Europe or any other area. We now face a historical development that requires all of us to build on the European convention on human rights, strengthen it and ensure that the most fundamental of all rights—the right to life and to protection of that life—without which no other right—

Lord Hoffman (a not-yet retired member of the judiciary) in his dissenting judgment in A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) [2004] UKHL 56, 16 December 2004:

If the finger of suspicion has pointed and the suspect is detained, his detention must be reviewed by the Special Immigration Appeals Commission. They can decide that there were no reasonable grounds for the Home Secretary’s suspicion. But the suspect is not entitled to be told the grounds upon which he has been suspected. So he may not find it easy to explain that the suspicion is groundless. In any case, suspicion of being a supporter is one thing and proof of wrongdoing is another. Someone who has never committed any offence and has no intention of doing anything wrong may be reasonably suspected of being a supporter on the basis of some heated remarks overheard in a pub. The question in this case is whether the United Kingdom should be a country in which the police can come to such a person’s house and take him away to be detained indefinitely without trial.The technical issue in this appeal is whether such a power can be justified on the ground that there exists a “war or other public emergency threatening the life of the nation” within the meaning of article 15 of the European Convention on Human Rights. But I would not like anyone to think that we are concerned with some special doctrine of European law. Freedom from arbitrary arrest and detention is a quintessentially British liberty, enjoyed by the inhabitants of this country when most of the population of Europe could be thrown into prison at the whim of their rulers. It was incorporated into the European Convention in order to entrench the same liberty in countries which had recently been under Nazi occupation. The United Kingdom subscribed to the Convention because it set out the rights which British subjects enjoyed under the common law.

The exceptional power to derogate from those rights also reflected British constitutional history. There have been times of great national emergency in which habeas corpus has been suspended and powers to detain on suspicion conferred on the government. It happened during the Napoleonic Wars and during both World Wars in the twentieth century. These powers were conferred with great misgiving and, in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised. But the necessity of draconian powers in moments of national crisis is recognised in our constitutional history. Article 15 of the Convention, when it speaks of “war or other public emergency threatening the life of the nation”, accurately states the conditions in which such legislation has previously been thought necessary.


Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom. When Milton urged the government of his day not to censor the press even in time of civil war, he said:

“Lords and Commons of England, consider what nation it is whereof ye are, and whereof ye are the governours”

This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.


I said that the power of detention is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.

May 24, 2007

Dr Reid’s farewell performance?

Filed under: civil liberties, Law, War on Terror — notsaussure @ 8:04 pm

Dr Reid is understandably annoyed that about the three terror suspects who’ve just gone missing. Reassuring, though,

As the hunt for the three men continued, Home Secretary John Reid said they were not a “direct threat” to people in the UK.


Mr Reid also said ministers could suspend – or “derogate” from – parts of the European Convention on Human Rights to allow tougher control orders to be imposed in future.”We will consider other options, which include derogation, if we have exhausted ways of overturning previous judgments on this issue,” he said.

Now, this is a bit puzzling. People will recall that these control orders were introduced after the Law Lords ruled against Part 4 of the Anti-Terrorism, Crime and Security Act 2001, whereby David Blunkett had given himself the power indefinately to lock up foreigners he suspected (but could not prove) were terrorists. This involved ‘derogating’ from Article 5(i) of the European Convention on Human Rights (habeas corpus, fair trial and suchlike), which you’re allowed to do under Article 15:

In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law

Note the two preconditions —

war or other public emergency threatening the life of the nation


to the extent strictly required by the exigencies of the situation

While the Lords agreed — possibly surprisingly, since no other signatory to the ECHR had found it necessary to derogate, and we have frequently been told, have we not, that Britain’s foreign policy has nothing whatsoever to do with any risk of terrrorism we may face — that we were, indeed, facing a ‘public emergency threatening the life of the nation’, they thought that banging people up in Belmarsh was rather more than was ‘strictly required by the exigencies of the situation.’ Which is why we’ve got these ‘non-derogating’ orders that Dr Reid finds so unsatisfactory. (This account is based on an excellent lecture by Lord Phillips, the Lord Chief Justice, last year on Terrorism and Human Rights, should anyone want to go into the subject in more detail).

To be fair, there were various other flaws in David Blunkett’s stab at the problem (the Lords thought it illogical that it only applied to foriegners and not to Brits, and also thought it illogical that the detainees were free to leave the country at any time), so I can see that their Lordships might take a different view of some new regime. But go to the Lords it assuredly would, and there’s every chance it would be struck down again, not least on the basis that the escape of three men who the Home Secretary doesn’t consider ‘a “direct threat” to people in the UK’ fits too well with ‘to the extent strictly required by the exigencies of the situation.’

Such a proposal would doubtless run into opposition from many quarters, not least from Sir Ken Macdonald, the Director of Public Prosecutions, who told the Criminal Bar Association in no uncertain terms this January,

Terrorism is designed to put pressure on some of our most cherished beliefs and institutions. So it demands a proactive and comprehensive response on the part of law enforcement agencies. But this should be a response whose fundamental effect is to protect those beliefs and institutions. Not to undermine them.So, although a development in the role of the security services and the police is essential and desirable in this context, I believe an abandonment of Article 6 fair trial protections in the face of terrorism would represent an abject surrender to nihilism. It would represent defeat.

All this, of course, is almost certainly academic; it seems to me a bit unlikely that Dr Reid, who’s said he’s going at the same time as is Blair, is going to be allowed to saddle the incoming Prime Minister with the political consequences of derogating from the ECHR or his successor with getting through yet another anti-terrorism bill which will almost certainly end up in a dubious fight in the Lords, just because he wants to distract attention from the fact he can’t keep an eye on these chaps who’re apparently dangerous enough to need control orders imposing on them but don’t pose ‘”direct threat” to people in the UK’ (no, I can’t quite work that out, either).

I know that there are apparently fears they might make their way to either Iraq or Afghanistan, without passports, there to take up arms against British soldiers, but I don’t really see that they can make things much worse in either place than already they are. Indeed, it could be argued that this would be a desirable outcome, since if they survive the experience, if we catch them we can charge them with treason. But really, this is just Dr Reid blustering, yet again, and telling everyone that it’s everyone’s fault but his when something goes wrong with everything he touches.

Only just over a month to go, though.

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.

May 16, 2007

How the other half loves

Filed under: Law — notsaussure @ 5:36 pm

Still trying to work this one out. Young man on trial for possession of Class A drugs with intent to supply, on the basis of joint enterprise. That is, the police had seen him and a friend parked up in his car, searched the two men and found his friend — who pleaded guilty — with a pocket full of wraps of cocaine and heroin. Prosecution want to argue that the two were in it together, primarily on the basis that the young man was less than frank when the police interviewed him and that there were a few suspicious indications when they searched his home. Certainly I can see why they were suspicious of him but, really, there wasn’t enough to convict him of more than being a bit of an idiot with some dodgy friends who probably (and no more than probably) himself uses a bit of the hard stuff for recreational purposes now and again.

There definitely wasn’t enough evidence there to get anywhere near the criminal standard of proof required to establish that even knew his chum had anything illegal in his pocket, let alone to establish they were engaged in a joint enterprise, and it didn’t take the jury long to find him not guilty.

Anyway, one of the things that roused the police’s and CPS’s suspicions was that he’d got a roll of cling-film in his bedroom, rather than, as one might expect, in his kitchen. It wasn’t, though, the same type of cling-film that his friend had used to make his wraps (the forensic science people had checked) so that didn’t really get anyone anywhere. Nevertheless, there’s an obvious inference — not, I would argue,one that’s germane to the charge on the indictment, which was being part of a joint enterprise to possess heroin and crack cocaine with intent to supply on such-and-such a date with so-and-so, rather than at some point in recent months having made up a wrap of something illegal, or having re-wrapped his own personal supply, of which there was, literally, nothing more than a trace or two (though there obviously had both some cocaine and some heroin in the room at some point) or something equally vague — but an obvious inference, nevertheless, and one worth chucking in.

It was given more weight by his obviously less-than-frank answer about why he’d got a roll of cling-film in his bedroom he gave during questioning by the police; wrapping the remains of a Chinese take-away, it seems. He’d clearly been given advice on this point — on the lines of ‘C’mon…’ — because learned counsel for the defence asked him about this point before the prosecution had a chance to have fun with it.

‘No. It wasn’t for wrapping Chinese food. I was embarrassed to tell the police at the time, but it was for the purposes of oral sex. ‘

Silence in court as everyone tried to take in the implications. Learned counsel — young, female and very attractive learned counsel — took a deep breath and tried to carry on as if nothing had happened, but the learned judge wanted to make sure he’d heard properly, since he’d just been complaining the defendant was mumbling, so his honour was finding it difficult to take notes.

Did I hear your client aright, Miss …. . He appeared to say he had the cling-film in his bedroom ‘for the purposes of oral sex’?Yes. Your honour heard correctly.

You could see his honour was dying to explore the implications of this one, but clearly decided it might be — err — injudicious so to do, so no one else did, either.

But, other than the obvious — which seems to me even less probable than the Chinese take-away explanation — can anyone give a rational explanation of what this chap thought we were supposed to imagine he and his girl-friend were doing with the cling-film? I’ve racked my brains, and other than his girl-friend mummifying parts of him, just in case, I’m stymied.

May 15, 2007

Don’t report fraud…

Filed under: Law, UK — notsaussure @ 6:28 pm

Well, this was news to me, and somewhat alarming news it is, too:

People will no longer be able to report cheque or card fraud or theft to the police under new rules being introduced by the Government.

From 1 April 2007, anyone who is a victim of this type of crime will be told to report it to their bank or building society and not police.

It will now be up to financial institutions to report such crimes to the police, which has lead to fears official figures will not truly reflect the seriousness of the problem.

Andrew Goodwill, managing director of Early Warning, an online card fraud specialist company, said the move is downgrading card fraud from a crime to an industry problem.

more here

One way to get the crime figures down, I suppose, but really…

This was brought to my attention, indirectly, from the author of the article, who writes that

I am working on a big scam [I assume she means she’s working on a report about one] at the moment and the victims are really bothered that they can’t report it to anyone – bar their bank . They feel cheated and short changed and want either a centre or police to take this back so a fraud specialist company has started a petition on No 10 website – the more people sign the better because this is a serious issue that the government brought in as per usual not bothering to care if it affects the public

Unfortunately, I can’t find the petition at the moment, but I’ll try so to do.

[Update:  now I have]

Does anyone have any further and better particulars of this extraordinary measure?

And could it be anything to do with the complaints from the Police Federation today about their members being required to arrest people, including children, on ludicrous charges, such as ‘being in possession of an egg, with intent to throw’ or a child for throwing a slice of cucumber at another child (yes, I know it’s a technical assault, but …)? The complaint from the Police Federation is that they’re being forced into this by performance targets, because all such incidents reported and dealt with by a caution or a fixed-penalty notice count as ‘crimes brought to justice’ just as do things that take a bit longer to investigate and prosecute, such as frauds?

The justification for this policy on not wanting to know about online fraud and suchlike, I’m delighted to see, is that

“Police forces at present will often not confirm a crime has taken place before they have had this confirmed by the financial institution that has issued the card… [making] financial the institution the first point of contact [is] removing an unnecessary layer of bureaucracy and making it easier for customers, ” the Home Office said.

April 21, 2007

Nelson Mandela’s name and likeness coprighted?

Filed under: Law — notsaussure @ 4:13 pm

This can’t be right, can it? It might be courteous to ask for someone’s permission to use your drawing of them on a commercial product, but the drawing you’ve made is your copyright, not theirs. And certainly there’s no law to stop someone writing a book about somebody and putting a picture of him on the front without his permission.

Admiration for Nelson Madela has landed a Leamington artist in trouble with the South African foundation bearing the statesman’s name.
Carol Ballard, of Beauchamp Avenue has been ordered to stop creating pieces of art containing images of Mandela, as they are now protected by copyright.The 48-year-old had heard that the foundation’s Centre of Memory was collecting artwork depicting the former president and emailed six bookmarks she had designed, which had been exhibited at a booksellers in London.

But the mother-of -one, who lived in South Africa between 1972 and 1985, was astounded to be threatened with legal action as a result.
She said: “I had no idea I was breaching copyright protection around the use of Mr Mandela’s image so I was shocked when the foundation requested that I refrain from making art of Mandela or they will have no choice but to seek legal recourse. […]

Ms Ballard’s arts and crafts have been exhibited throughout the country but following the copyright legislation she has had to put an arts garden, inspired by Mandela, on hold, as well as a children’s book about the statesman.

She is now awaiting a response as to how she can create art containing Mandela’s image legally.

She said: “I have had to say that they will never be shown again but at the same time I feel this is not right. Especially the children’s book I was writing. I was doing it really well. I had started with the folk law and I have never seen a book like it. I was really prepared to have it published.

“I am remorseful that in my over-zealous enthusiasm and love for Mandela, I have caused such a reaction from an organisation so close to my heart.”

A spokesperson for the foundation confirmed that the image, work and name of Nelson Mandela was covered by copyright to prevent individuals from making profit from the former president’s name.

Under what law does the Nelson Mandela Foundation claim this strange copyright, I wonder?

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Fraud victims wrongly convicted in Operation Ore?

Filed under: Internet, Law — notsaussure @ 1:38 pm

Via Tim Worstall, a very disturbing account from Alex at The Yorkshire Ranter of how many of the men caught up in the Operation Ore child pornography prosecutions may have been completely innocent victims of credit card fraud and phishing — essentially, their stolen credit card details were apparently run through a site, in order to generate charges that the fraudsters pocketed, that provided merchant services to various shady enterprises, including vendors of child pornography.

Alex’s article is based on an article by investigative journalist Duncan Campbell in The Guardian and a much longer piece by him in PC Pro (pdf).

Someone’s commented on Tim’s article to the effect there are — or should be — safeguards against wrongful conviction in this sort of case. Well, yes, there are, and they should be effective, but they clearly didn’t protect the people who, as Campbell describes in his article, had their computers seized and lived with these charges hanging over their heads for a year or 18 months before being dropped or thrown out by the judge. Nor did they protect people who apparently wrongly accepted cautions in the mistaken belief this would be an end to the matter (it isn’t, since that means admitting the offence, and ending up on the Sex Offenders Register).

And, in the light of what Campbell has to say about the police’s unwillingness to turn over unused materials to defence lawyers (and, I think, lack of knowledge at the time among many of the criminal bar about phishing) there’s no knowing how many people were mistakenly advised to plead guilty to incitement to create child pornography (the standard charge in Operation Ore when the prosecution found someone’s credit card details on one of these sites but nothing on his computer) on the grounds that they’d be found guilty anyway and might as well get it over with in return for a lower sentence.

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Police league tables

Filed under: Law — notsaussure @ 11:02 am

The Telegraph reports that,

Police officers operated a football-style league table and gave each other points for making arrests, it has been disclosed.

Senior officers put a stop to the practice when they heard about what was happening in the North Tyneside area, which was reported to a newspaper by a whistleblower.

The unnamed serving officer reported that Northumbria Police colleagues pinned up tables on notice boards in the station, giving points to bobbies for making arrests.

They awarded each other three points for an arrest and one for a summons, fixed penalty or penalty notices for disorder.

The whistleblower told the Newcastle-based Journal newspaper he was concerned colleagues were preoccupied by the tables and feared arrests could be made unnecessarily.


Deputy Chief Constable David Warcup defended his officers today, saying they did not make arrests without good reason.

But he said the league tables were ripped up when he heard about them.

“As soon as we found out there were numerical targets, where there was a points system, that was immediately stopped,” he said,

presumably on the argument that compiling such tables and setting targets is the Home Office’s job.

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