Why Wasn’t Lord Janner Prosecuted?

The Crown Prosecution Service today confirmed that it will not be prosecuting Lord Janner for historic sexual abuse allegations.  The reason they have concluded is because such a prosecution would not fit the ‘public interest’ test.

The CPS’s charging decisions are set out in the Code for Crown Prosecutors.  This sets out a two-stage test for any charging decision.  First, the prosecutor ‘must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction‘.  The CPS thought that there was sufficient evidence for each of the allegations.

Once such a decision is made, the CPS has to go on and consider whether prosecution is in the public interest.  The Code sets out guidance on how this test is to be addressed, but is clear that such guidance is not exhaustive: situations not covered by the Code or guidance can still be relevant to this stage of the decision to prosecute.

The issue in this case was Lord Janner’s mental health.  He has Alzheimer’s disease, diagnosed in 2009, and was reviewed by four medical experts.  Two were instructed by the CPS and two by Lord Janner’s legal team.  The key findings, from the CPS’s perspective, were that his condition meant that ‘his evidence could not be relied upon in court and he could not have any meaningful engagement with the court process, and the court would find it impossible to proceed.’  His condition is ‘rapidly becoming more severe‘ and ‘he requires continuous care both day and night‘.

Although it’s not clear from the CPS’s statement what the exact nature of the report is (i.e. is it a joint statement?  How did the experts interact?), there was ‘general agreement‘ between all four doctors ‘as to the level of cognitive ability’.  So there does not appear to have been a dispute between the Prosecution and Defence medical experts that Lord Janner’s mental state was not suitable for a criminal trial.

The CPS concluded:

The CPS considers that in the light of the medical evidence Lord Janner would inevitably be found not fit to plead, not fit to instruct his legal team and not fit to challenge or give evidence in a trial. That means that a criminal trial, to determine whether or not he was guilty of any offence, could not now properly take place

They were clear that, if it were not for this factor, ‘it would undoubtedly have been in the public interest to prosecute‘.  The only thing barring a prosecution was that

This is no doubt deeply disappointing to the complainants in this case, and the particularly pressing public interest in prosecuting cases such as this.  But it does look like the CPS had little choice in light of the medical evidence.  Putting a man on trial for extremely serious allegations with rapidly advancing Alzheimer’s, who is unable to properly participate in the proceedings, would have been highly unlikely to satisfy anyone’s desire to get to the bottom of the case.  It wouldn’t have looked remotely like a fair trial, especially where the case would likely turn on whether Lord Janner’s evidence was believable.

Although it may feel a bit like they are passing the buck, the CPS does make a valid point that had these allegations been properly pursued at the time, things would have been different.  They say that the previous decision not to prosecute was wrong:

Had the previous decisions been to prosecute, as they should have been, Lord Janner would have had the opportunity to challenge the evidence and defend himself through the trial process, with a jury ultimately deciding on his guilt or innocence some years ago. Victims of the alleged offences have been denied the opportunity of criminal proceedings in relation to the offences of which they have complained. It is of obvious and particular concern that such proceedings did not take place as a result of what the CPS now consider to be wrong decisions.

The CPS got the decision to prosecute wrong back then, and now it is too late to get a prosecution off the ground because of Lord Janner’s mental state.

In true British style, they have asked a retired High Court Judge to conduct a review of the case and make recommendations.  To the complainants that may feel like too little, too late.

Police Shootings

The New York Times is running a debate on whether police use deadly force too often.

Scott Greenfield, drawing on Seth Stoughton’s piece, argues that the issue is police culture:

The causes for this shift in attitude and purpose range from the militarization of police to the incentives offered by the Supreme Court’s ruling in Graham v. Connor, but all focus on the role that police perceive themselves as playing within society.  This is seen in the distinction between American and British police, and the number of people they find it necessary to kill:

This American Life recently ran a two-part podcast on the same issue:

This American Life: Cops See it Differently, Part One

There are so many cops who look at the killing of Eric Garner or Mike Brown and say race didn’t play a factor. And there are tons of black people who say that’s insane. There’s a division between people who distrust the police — even fear them — and people who see cops as a force for good. Stories of people living on both sides of that divide, and people trying to bridge it

This American Life: Cops See it Differently, Part Two

Our second hour of stories about policing and race. We hear about one city where relations between police and black residents went terribly, and another city where they seem to be improving remarkably. And one of our producers asks: Why aren’t police chiefs talking about race after incidents where unarmed black men are wrongly killed by officers?

If you’re interested in following discussion, it’s worth reading and listening to them all.

Of particular interest was the review and reform process undertaken by the Las Vegas Metropolitan PD, referred to in the second of the above two podcasts.  I’ve uploaded the DOJ’s 2012 report, and the follow-up report in 2014 is covered by the Las Vegas Review Journal.

The “Prince Andrew” Case

Two days ago United States District Judge Kenneth A. Marra ruled that allegations of sexual abuse against, among others, Prince Andrew and Alan Dershowitz were to be stricken from the court record.

The allegations are tangential to a wider lawsuit against the US Government about a plea bargain it reached with Jeffrey Epstein.  A good general background can be found at the Wall Street Journal’s Law Blog.

Who is Jeffrey Epstein?

Jeffrey Epstein was a financier accused of sexually abusing underage girls in Florida.  In 2007 Epstein reached an agreement with the US Attorney’s Office, a federal prosecution authority.  He pleaded guily to two state felony charges of solicitation of prostitution and procurement of minors to engage in prostitution, and received an 18-month prison sentence.  The US Attorney’s Office agreed not to prosecute Epstein or any potential co-conspirators for federal offences, and reached a non-prosecution agreement with Epstein in these terms.

What is the Case About?

The first thing to note is that this is not a lawsuit against Jeffrey Epstein.  The Plaintiffs brought civil cases against him in a few years ago, which I believe were settled.  This case is against the US Government, alleging that the non-prosecution agreement reached with Epstein was a violation of the Crime Victims’ Rights Act 18 U.S.C. § 3771 (CVRA).

This legislation gives victims of crime a series of rights:

(1) The right to be reasonably protected from the accused.

(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.

(3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.

(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.

(5) The reasonable right to confer with the attorney for the Government in the case.

(6) The right to full and timely restitution as provided in law.

(7) The right to proceedings free from unreasonable delay.

(8) The right to be treated with fairness and with respect for the victim’s dignity and privacy.

The two Plaintiffs, both alleged victims of Epstein, claim that the non-prosecution agreement was in violation of the CVRA.  Specifically, they say that the federal authorities did not confer with them about the plea deal, and intentionally kept the negotiations and the agreement secret.  They submit that the agreement violated ‘their rights to confer, to be treated with fairness, and to accurate and timely notice of court proceedings‘ (subsections (2), (5) and (8)).  They seek an order setting aside the non-prosecution agreement and reopening the decision, to allow them to participate in accordance with the CVRA.

The US Government claims (in short) that the CVRA didn’t apply; that the legislation didn’t allow the Court to rescind the non-prosecution agreement; and in any event that they complied with its requirements.  The first two arguments were rejected in decisions in 2011 and 2013.  The remaining defences are to be determined at a later date pending development of the evidentiary record.

In brief, the case is about whether the non-prosecution agreement that the US Government reached with Epstein violated victim rights, and should therefore be set aside.

Why was Prince Andrew Named?

In December last year two more alleged victims filed a motion to join the action as Plaintiffs.  The application of “Jane Doe #3”, included substantial amount of information about her alleged abuse.  Her lawyers submitted that this was background information relevant to the Court’s assessment of whether to allow them to join the action.

Jane Doe #3 set out a number of allegations against high-profile individuals, claiming that the Government’s alleged concealment of the non-prosecuation agreement was ‘to avoid Jane Doe #3 from raising powerful objections to the NPA that would have shed tremendous public light on Epstein and other powerful individuals and that would likely have been prevented it from being concluded in the secretive manner in which it was.‘  She also claimed that Alan Dershowitz, who helped to negotiate the non-prosecution agreement, did so to protect himself from prosecution as a co-conspirator.

The thrust of the allegation is that Epstein used his connections to get a favourable plea deal, and the Government kept the alleged victims in the dark to avoid negative publicity involving a number of high profile individuals.

The two additional parties claimed that their involvement would assist in responding to defences raised by the Government, and to outstanding discovery disputes.

It should be made clear at this juncture that the individuals named in this Motion deny the allegations.  Alan Dershowitz in is pursuing the parties for defamation and perjury.  He was also never identified by the US Government as being a potential co-conspirator.

What did the Court Decide?

District Judge Marra’s Order denies the application to join the parties, and that portions of their motion be stricken from the record, primarily those setting out the allegations of abuse.

He ruled that the motion ‘consists of relatively little argumentation regarding why the Court should permit them to join in this action‘.  The ‘lurid details‘ contained in the motion were ‘immaterial and impertinent to this central claim (i.e. that they were known victims of Mr Epstein and the Government owed them CVRA duties), especially considering that these details involve non-parties who are not related to the respondent Government.

The crux was that this is not a case against Epstein, or the other named individuals.  It is a case against the US Government, arguing that they failed to comply with their CVRA obligations in reaching the non-prosecution agreement.  These additional details were not relevant to the merits of that case.

The Judge further ruled that the two parties would not be allowed to join the action.  He concluded that their addition as parties was ‘entirely unnecessary‘.  They would still able to get evidence, but the addition of them as parties would not materially advance matters.  Especially as Judge Marra found that their own submissions, with their repeated reference to the similarity of the new and existing Plaintiffs’ cases, did not add anything material.  Particularly as the original claim was not simply about the rights of the named Plaintiffs, but also ‘the rights of other similarly-situated victims‘.

This does not mean that they cannot give evidence, or that they are not able to raise the allegations that have been stricken from the record.  The Plaintiffs intended to call Jane Doe #3 as a witness in any event.  Judge Marra said that they were entitled to do so, but repeatedly reminded them about the need ‘to offer relevant, admissible and non-cumulative testimony‘ (emphasis in original).  He further cautioned that the matters stricken from the record could be reasserted in evidence, but only if they ‘demonstrate a good faith basis for believing that such details are pertinent to a matter presented for the Court’s consideration.

Broadly, what the named individuals were alleged to have done to the proposed Plaintiffs added nothing relevant to a case about whether the US Government complied with obligations of notification and consultation.

What Happens Next?

The case will continue, brought by the two original Plaintiffs and potentially relying on the evidence of Jane Doe #3 as a witness.  Should they succeed, the Court may overturn the non-prosecution agreement and the US Attorney’s Office would have to revisit its prosecution decision, doing so in a manner that gives effect to the CVRA.

That does not mean that the result would necessarily be any different.  The provisions of the CVRA are about giving victims ‘a voice, not a veto.‘  The legislation specifically ‘reserves absolute prosecutorial discretion to the government‘ at 18 USC §3771(d)(6).  But looking at the case advanced by Jane Doe #3 in her application, it may be that the Plaintiffs’ lawyers hope that the publicity this case generates puts pressure on the Federal Government to reach a different decision.


Televising Trials

The Pistorius case has reopened the discussion about the televising of trials in England & Wales. There are two interesting articles on the matter in the Times (paywall here and here).

Some of this has already happened.  You can watch live hearings of the Supreme Court on their website, and the Court of Appeal has delivered judgments to cameras.  A Scottish criminal trial has already been televised, in Channel 4’s The Murder Trial.

The real issue is more to do with the contemporary televising of cases involving contested evidence (appellate advocacy is a different beast.

It is hard to deny that televising has helped increase the public understanding of the legal system.  My feeling is that the televising of the Pistorius trial and verdict helped people understand how the case and system worked better than a written account could have.  And the recording of the Leveson Inquiry had a similar effect.  But there are, it seems to me, substantial concerns that need to be addressed before it gets rolled out any further.

The biggest concern is the effect that televising has on advocacy.  A common refrain is a desire to avoid the antics of the OJ Simpson trial.  There were numerous suggestions that Barry Roux and Gerrie Nel were playing up to the cameras in the Pistorius trial rather than engaging in effective advocacy.  Litigation and advocacy styles vary between jurisdictions, so I can’t say with any certainty whether that was the case, but it was the view of a number of legal commentators.

But even if it cannot be said for certain in the Pistorius trial, the wider point that televising could undermine the role of the advocate does make sense.  There is always a pressure on counsel to play to the gallery.  Although our job is to persaude the Judge, the commercial reality is that the Bar is a client and reputation-based profession.  We have to be seen to do a good job, irrespective of whether we are actually doing one.  Those sitting behind us may have more influence over our career than those before whom we appear.  That pressure may be exacerbated by televising.

It is a fair point that trials are meant to be held in public anyway, and that televising is simply updating that principle to the 21st century.  But the problem is that televising is a qualitatively different change.  It amplifies the level of publicity to a completely different order of magnitude.  It is quite different to have your name reported in a written account of a trial to having your evidence being recorded and broadcast.

Giving evidence is a daunting prospect even (perhaps especially) for the most honest of witnesses.  Many witnesses are vulnerable, and often witnesses have to give evidence against themselves or agree to damaging criticisms.  Frequently a witness’s credibilty turns on the fact that they are willing to accept criticisms made of them in cross examination.  Witnesses may feel either intimidated, or otherwise inhibited from being candid, because of the much greater level of scrutiny to which their evidence is being subjected.  In particular vulnerable witnesses, and relevant witnesses who want to avoid any of their dirty laundry being aired, may be intimidated from giving evidence.

This is a relatively common problem in litigation, and the amplifying effect of televising may exacerbate it such that valid claims and defences never get to see the light of day because witnesses feel unable, for a number of reasons, to tell the whole truth, especially when it goes against them.

This would be a particular problem in high-sensitivity cases such as sexual offences or those involving children.  Not all trials are going to be suitable for broadcast.

As I said above, the Pistorius trial helped the public understand it and the verdict better.  It was easier to explain to people how the Court came to a conclusion that suprised many.  But it is quite possible for a televised trial to obscure rather than clarify.

It’s inevitable that if recording of trials occurs, there is going to have to be editing.  The act of editing, though, is of a kind with the art of advocacy; both involve a substantial degree of selecting material to present and material to leave out.  If that is not done properly, or done purely to chase ratings, it risks being prejudicial.

The presented matters are likely to be the points of high drama, even if they are not necessarily the most important to the litigation.  Sometimes the most boring and technical parts of the evidence are where the case is won.  Particularly if that trial involves documents, and you are cross examining to show that the documents do not accord with a witness’s evidence.   And as the Pistorius trial shows, cases are not simply about who is lying, or who is lying worse.

The risk is that broadcasting trials could give a misleading impression of what goes on.  The Murder Trial is a case in point.  When I watched it it felt as though the producer had chosen the parts of the recordings that fit the verdict, and presented the trial as leading inexorably to that conclusion.  In my experience, trials rarely work that way.  It felt like it was simply amplifying the prosecution’s case.  

In South Africa, with judge-only trials and a consequently relaxed set of laws regarding contempt of court, that may not be a problem.  A judge will quite willingly disregard media reports.  But that is less likely with a juror.  The inherently selective presentation of the evidence may unduly influence the juror’s perception of events.

It could also be problematic with appeals.  A selective broadcasting of a case could give the impression that the evidence at trial was stronger than it actually was.  A successful appeal could be undermined by that impression – the public may take the view that they “know” the appellant was really guilty, based on the original broadcasts, irrespective of why the appeal was allowed.

In my view none of these are insurmountable problems, and much (if not all) is a difference of degree rather than kind to how trials already operate.  But they need to be taken into account before there is any furthe relaxation of the broadcasting regime.

Lib Dems on Human Rights: Form not Substance?

Head of Legal has a good explanation and discussion of the Conservatives’ proposals to reform the Human Rights Act 1998.  In short, they are much more modest than completely abandoning the Act, jettisoning the Convention and severing all links with Strasbourg.  It is evolution, albeit problematic evolution, rather than revolution.

An interesting little footnote has emerged though, in the comments of Simon Hughes to the LibDem Party Conference.  The Law Society Gazette reports:

Hughes told delegates the Liberal Democrats had blocked the Tories’ attempts to scrap the 1998 act during their time in government and this stance would remain in 2015.

‘I make this commitment to you: we will always be the party of reform, including in Europe,’ said Hughes. ‘But, whatever the outcome of the next election, if Liberal Democrats are in government: we will always stand up for human rights.

We will never agree to leave the UK without a Human Rights Act. And we will never undermine the European Convention on Human Rights.’

The interesting word there being “a”.  Assuming that the words are accurately reported, that is a small but substantial difference to “the Human Rights Act”.  Given that the Conservatives are not proposing to abandon Human Rights legislation, but simply replace it, this suggests that any Lib Dem opposition may be narrower than opposing the Conservatives’ current plans.

Photographic Abuse

I have inserted links to the relevant articles to source quotes, but I would suggest that people do not click on them.

The more I think about the Mirror/Sunday People’s decision to publish photos of Charles Saatchi gripping his wife by the throat, the more irked I become.

The paper, in its decision to publish, has done a disservice to victims of domestic violence.

It should go without saying that what Charles Saatchi did was wrong. But domestic abuse is a sensitive issue and there is a right way and a wrong way of dealing with it.

Much of what is the right and the wrong thing to do in the field of domestic violence is counter-intuitive.

One of the principal weapons in the armoury of professionals working in this field is secrecy. DV professionals undertake painstaking efforts to establish secret and secure channels of communication with victims. They use them to allow victims get help safely and, if the time comes, to leave the relationship in the safest possible way (I say “if” simply because many victims choose not to do so). These efforts are made both to provide the victim with a space in which they feel free to speak to professionals and get help, and for the victim’s own personal safety.

Abusers are, by nature, controlling people, and are often prone to jealousy and paranoia. They use perceived slights as ammunition against their victims. Something as trivial and innocent as smiling at a stranger can be enough to provide the pretext for abuse, humiliation and violence. If they find out that the victim is speaking to a DV professional, that can be enough to put them at risk of serious violence and scupper all the efforts made to help them.

Indeed, the most dangerous time for a victim of DV is, perhaps counter-intuitively, the moment she leaves the relationship. This is in part because the issue is brought to a head and the abuser has lost control of the situation.  DV professionals make significant efforts to lay the ground for the exit in advance and in secret, ensuring that the victim leaves on their own terms, with sufficient security in place to ensure that they are safe, in control of the situation and hidden from their partners. This is something that cannot afford to go off half-cocked.

Cases of domestic violence must be handled with sensitivity, discretion and confidentiality. The victim has to be made to feel safe and secure.

Now look at what the Mirror did.

First, look at how they obtained the story. The account given by the photographer contains some telling details.

But the photographer, who did not want to be named, said: “The pair did not know they were being photographed. I was completely hidden.

“It wasn’t a game, from what I saw, it was more… if that was a game it was a pretty rough game.

I couldn’t hear what they were saying. The ­conversation and action became so worrying for the couple sitting next to them that the woman put her hands over her mouth in shock.”

As does a line in this article:

Last December, there were concerns raised when she and Saatchi had a another bust-up at Scott’s.

He put his hand over her mouth in an apparent bid to shut her up.

Putting those together, the shot was obtained by having a concealed paparazzo lie in wait with a telephoto lens (the fuzzy nature of the photographs is also a giveaway). The reference to this not being the first such occasion suggests that the photographer may have been stationed there specifically to capture such an incident.

Second, think about what has to happen to make the story libel-proof. To ensure that the paper can fall back on the Reynolds defence, they have to put the allegation to Charles Saatchi and get him to comment on it. In other words, they had to tip off the abuser in advance of publication. It is not particularly far-fetched to think that they might accuse the victim of setting him up, or just generally use it as another pretext for violence.

Third, no suggestion has been made that Nigella Lawson consented to these photographs being published.

A tasteless pun.

Put simply, the Mirror, likely acting on knowledge that Charles Saatchi had form, stationed a paparazzo in his usual haunt in the hope of catching him in the act (or took advantage of an enterprising paparazzo who decided to do this of his own accord). Once they got the photos they tipped off a potential abuser and then splashed the pictures all over the front page. Not one or two photos to confirm that it was what it looked like, but complemented by a full online gallery, complete with a tasteless reference to an olive branch (the foliage in the photos).

If they knew that she was, or might be, the victim of domestic violence, they took the decision that the best course of action was to get them papped.

They took pictures of a woman who, in the words of one onlooker “had been abused and humiliated in public”, and decided to magnify the publicity of the abuse and humiliation she received. They decided to tip off an abusive husband, with no evidence of any regard for the wife’s safety.

Now consider the likely consequences: an enraged abuser, a humiliated victim at an elevated risk. Rather than going to Nigella Lawson in confidence, offering her support, asking whether she wanted the photos published, or going directly to the police, they picked a fight with a Saatchi on his home turf: PR. So far, he has played the PR game pretty well considering his hand. If the relationship is indeed one of control, the ratchet may well have tightened. If she wants to leave the relationship, the publication may have actually made it more difficult to do so.

The decision to publish does not appear to have been taken out of concern for a victim of domestic violence, but out of a desire to sell newspapers masked in sanctimony.

Although the original story was published in the Sunday People, the Mirror’s sister Sunday paper, I have referred to both papers as “the Mirror”. They use the same website, are owned by the same company, and are treating this story as a joint effort. There seems to be little point distinguishing between the two titles.

Leveson: Off the Record

According to pundits, Leveson LJ’s report proposes the banning of off-the-record discussions.  This would obviously be a major curtailment of the effectiveness of the press, and unworkable in theory as well as in practice (how do you enforce a ban on something that is done on the basis of there being no evidence of it?).

In particular, it has been suggested that this would amount to a ban of briefings on Lobby terms, and remove one of the institutions that oils the Westminster machine.

This is getting repeated with a certain amount of indignation to suggest that Leveson LJ fundamentally doesn’t understand how the press works, and so the report should be ignored as some sort of overbearing attempt at censorship.  Various journalists are hopping up and down about this.

Except that neither Leveson LJ, nor his report, suggest any such thing.  Here is the closest thing to approach the matter:

The first thing to note is that this does not relate to off-the-record briefing generally.  The remarks are specifically confined to press-police briefings.  The report simply doesn’t deal with such briefings more generally.

Second, in the same section (but not in the image here) the Report accepts the necessity and value of off-the-record briefing.  As you will see from the image, there is no suggestion that the practice should stop.  Indeed they are considered ‘legitimate police and media interactions’!

What is proposes is much more modest.  It is that the term ‘off-the-record’ should be discontinued in favour of the terms mentioned in the shaded box above.  This is because as it stands the existing term has multiple meanings and it’s not always clear which is meant.  It’s a simple matter of a practical recommendation, and there’s no suggestion that this should be enforced by any regulator, statutory or otherwise.  It’s just a simple recommendation that the press are free to take up or reject as they like.

There is no proposal to ban off the record briefings, and those members of the press jumping on this bandwagon are damaging their credibility in saying so.  It’s hardly the most sensible approach to defend ‘freedom of the press’ when, as a member of that same press, you fail to check basic facts.

Interviews in an Embassy

In the furore over the Julian Assange case, much has been made of a purported offer made by Mr Assange to be interviewed by the Swedish Prosecution Authority in the Ecuadorean Embassy.

This post has been picked up on by @loveandgarbage, a Scottish Lawyer, who claims that the well-known case of Smith v DPP and Commissioner of the Metropolitan Police [2011] UKSC 666 provides a sound legal basis for conducting such an interview. He summarises the case here.

As a result of this crucial case it is the right of any accused person who has breached bail conditions and is located in England to tell the prosecuting authorities where, when, and how he or she should be questioned. Given this decision it is unsurprising that supporters of Julian Assange are pointing out that he should be allowed to determine where and when he is questioned in relation to the accusations against him. After all it is an absolute right of the suspect or accused in any criminal case to control the process, fought for over many long years. I am only surprised that so many lawyers south of the border and in Sweden seem oblivious to this key legal principle.

This is, however, one of the worst examples of a Misleading Case I have ever seen.

Although it is true that factually this case is very similar to that one, the principle loveandgarbage extracts from it is closer to garbage than love.

What is overlooked here, and it really is a key part of the ratio, is that the maisonette was in West London. That was the narrow ground upon which the appeal was upheld.

As Lord Hope said:

“West London is generally understood to be a wonderful part of the world where people are of sufficient wealth that they can be trusted to answer the questions truthfully and honestly. I, like many of my brother judges, live in West London and some of my best friends are there. I am convinced that absolutely nobody who can afford to live there could be of such disreputable character that they would need to be treated like a common criminal in a police interview. It is on this narrow ground that we allow the appeal. If the Appellant had lived in, for example, Bermondsey, it would be a completely different matter and the Court would have to pay careful attention to such matters as the appellant’s income, schooling, background and demeanour before granting this right.”

In so ruling the Court made it clear that it was extending the principle established in Sturges v Bridgman (1879) LR 11 Ch D 852, which held that “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”, and firmly established that Londoners are to be afforded differential treatment based on their postcode.

It is not correct to describe the right as absolute. Indeed, given that the Ecuadorean Embassy is, allegedly, sovereign territory outside the United Kingdom, it is not clear whether the ratio would apply to such a case. The Court was emphatic that the interview, and the suspect had to be “in West London”. Assange, however, claims to be in the sovereign territory of Ecuador. Accordingly, there are strong grounds for arguing that he is not in West London at all, and should be interviewed like the ordinary inhabitants of Bethnal Green (DPP v Jones [2010] UKHL 123).

It is this sort of sloppy misreporting and misrepresentation of the law, coupled with an uncritical retweeting of anything that appears to support one’s case, that has bedevilled sensible discussion of this case. One hopes that from here on in things would be made clearer.

Quote of the Week

There are many places where you can find serious, informed and rigorous writing and speaking about this stupendously important case—unfortunately, the “Garrulous Law” blog is not one of those places.

I think that chap just made my week.

Assange Case Theories

You cannot help but have seen the decision of Ecuador to grant Julian Assange asylum from Sweden/USA/UK/etc. As expected, the internet has exploded with arguments and conspiracy theories.

You do not have to believe that Julian Assange is guilty to disbelieve the more ludicrous conspiracy theory being promoted by Wikileaks at the moment.

To understand this, let’s look at four possible ways of analysing what’s going on.

1. US Conspiracy

The central allegation is that the USA is using these proceedings to extradite him and subject him to a trial for treason, where he is at risk of being subjected to the death penalty.

Looking solely at what is the incontrovertible legal situation, this is what you have to be alleging if you want to make this story stick:

The United States, in order to prosecute an Australian national with a view to subjecting him to the death penalty, has persuaded two individuals to accuse him of a crime that is notoriously difficult to prove, in order to get him extradited from a country with a very US-friendly extradition treaty, to another country with much stronger protections against extraditions to the USA. This extraditing country is legally unable to extradite him to the USA if he faces the death penalty. This is done using a legal mechanism that then requires both countries to approve his extradition to the USA. This is to be done using a legal framework that has already taken the best part of two years with no end in sight, with multiple legal obstacles along the way in both the past and future.

Alternatively, they have done this to engage in extraordinary rendition of a man with a gargantuan media profile, and without regard to the major diplomatic outcry this would cause from the UK, Sweden, Australia, the EU and the rest of the world.

This is to be done in preference to:

The blog of a barrister

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