Gagging Orders

Eddie Gilfoyle was released on licence earlier this week.

The case is a troubling one. Gilfoyle is alleged to have fooled his pregnant wife into writing a suicide note, then killing her by hanging. There is a serious claim that the case is a miscarriage of justice. Gilfoyle protests his innocence and has appealed against his conviction twice already, in 1995 and 2000. A fresh appeal is being considered by the Criminal Cases Review Commission. People involved in the original prosecution have subsequently come out and expressed their doubts about Gilfoyle’s conviction, as has a senior member of the police force at the time. There are significant concerns about the handling of the investigation and evidence (see also here).

Gilfoyle was released on licence after his first parole application.

What is particularly concerning at the moment, however, is a condition of his licence:

After his release Gilfoyle released a simple statement which read: “I am not able to provide a response because the Parole Board has imposed a condition on my life licence that prohibits me contacting the media either directly or indirectly whether this is regarding my release or my appeal [emphasis mine].

The imposition of conditions on a life licence is designed to protect the public by minimising the risk of future offending. Normal conditions include residence requirements, supervision and so forth. Other cases (for example, the Bulger killers) may include exclusion from a geographic area or preventing contact with the victims and/or their families. These ‘non-standard conditions’ must be justified in terms of risk and must be reasonable, necessary and proportionate (PSO 4700 Lifer Manual, Chapter 13).

This doesn’t appear to have occurred in this case. The ambit of the condition appears grossly disproportionate (even Gilfoyle’s relatives and campaigners feel unable to comment to the media), and bear little relevance on his risk of re-offending. The justifications from the parole board are troubling:

[A spokesman for the parole board] said: “Any prisoner who is released is released if we reach a judgment that he is safe to release and that he is not going to go on to commit another offence. It is sometimes the case that one of the licence conditions is that the prisoner being released doesn’t get involved with the media. If that is the case, the only reason for that condition would be to prevent further offending.

“For instance, it might be the case that if a high-profile prisoner talks to the media after he has been released, there would be issues concerning the feelings of the victims.

“There might be concerns about the reaction of the general public to someone who has been released from a life sentence.”

These examples were given as general ones as the Parole Board cannot comment on individual cases. Nonetheless they do not appear to be applicable here. Given that the media coverage of the case tends to focus on the claim that this is a miscarriage of justice, it is highly unlikely that public reaction would lead to further offending. Moreover, the right of a person to protest his innocence and have his name cleared ought to outweigh any right the victim has. At any rate, the draconian nature of the media ban appears to be be so unbalanced as to be unlawful.

John Hirst, who is himself on a life licence, picks apart the claims in more detail.

The Julian Assange Case: Frequently Asked Questions

Photo by Ben Bryant

There’s a lot of misinformation and confusion spreading around the internet about the Julian Assange case. Myths are being spread about both the case itself and the surrounding law. Some of this is natural, given that the stage the investigation has reached. Some is also borne out of the desire to see a popular hero exonerated. I’m hoping here to shed a little light on what is going on.

This is an attempt to keep on top of the main themes emerging in the press coverage and commentary on the case. It has been quite hard to get definitive answers on some points as the search engines are now clogged up with hundreds of conspiracy theory posts. Consequently some of this is subject to correction. If new questions emerge, I’ll try to update this list. Similarly, if I’ve got things wrong, please tell me in the comments and I’ll endeavour to set things right.

Please suggest new questions or issues in the comments to this post.

Please note that I will not name the complainants. They have a legal right to anonymity and this blog will not breach it.

Disclosure

In the interests of transparency, I should make it clear that I am not a fan of Julian Assange. I support the idea of providing secure online platforms to facilitate whistleblowing, and used to support Wikileaks. However, I share the concerns of those who have subsequently left the organisation that Assange’s style is autocratic and opaque, pursuing a political agenda distinct from the worthwhile project of supporting and protecting whistleblowers. I am cautiously optimistic about OpenLeaks (more info here). Make of that what you will. I don’t have an opinion on whether or not he is guilty of the offences. We simply don’t know.

Background: Sexual Offences

There are a lot of popular misconceptions about sexual offences. They are crimes we’d rather not think about, touching on taboos and prejudices. Rape in particular is a difficult offence to prosecute. Although the conviction rate at trial is not particularly low (it’s about what you’d expect for an offence triable only in the Crown Court), it has an extremely low clear-up rate (the rate of cases reported that conclude in a conviction). The perceived stigma of being raped, and the potential trauma of an investigation and trial can be highly off-putting and results in cases being dropped. Just look at the case of the woman who was imprisoned for falsely retracting a rape confession, and the CPS’s response, to see the sort of pressures that can apply to a rape victim and the attendant difficulties faced by prosecutors.

Contrary to popular belief, the majority of rapes are not committed by strangers in dark alleys. In fact, stranger rapes count for less than a tenth of reported rapes. In most of these cases, the defendant does not deny that sex took place. Often there is a prior sexual relationship with the victim. The only real question for the jury is consent (or, in English law, the defendant’s reasonable belief in consent). It is here that the prejudices of the jury can be most damning. Rape victims don’t always behave as one might expect them to; their actions can be open to misinterpretation and lead to wrongful acquittals. Some of those prejudices appear to be in play at the moment.

Though always serious offences, sexual offences are mistakenly viewed as being crimes of violence in the sense of physical force. They are not. The essence is a violation of sexual and moral autonomy and bodily integrity. Neither force nor threat is necessary. All that is required is the lack of consent. In English law your body is inviolate: any non-consensual touching is, subject to certain defences, criminal. This misunderstanding is problematic. People who have been raped and sexually assaulted, and traumatised as a result, feel that they have no redress because they don’t realise they were raped. When I discussed the issue with a magistrate the other day, she suggested that we adopt the Swedish system of grading rape charges according to seriousness to get round this problem. Rape and sexual offences are not what most people think they are.

It’s worth bearing this in mind when considering the Assange case. Now on to the questions.

What are the Allegations?

The precise allegations are not entirely clear because the Swedish authorities don’t want to disclose all the evidence at this stage (see below). What they are willing to reveal was stated at Julian Assange’s first appearance at City of Westminster Magistrates’ Court.

In essence the allegations are as follows:

  • That Assange “unlawfully coerced” Miss A by using his body weight to hold her down in a sexual manner.
  • That he “sexually molested” Miss A by having sex with her without a condom when it was her “express wish” one should be used.
  • That he “deliberately molested” Miss A “in a way designed to violate her sexual integrity”.
  • That he had sex with a second woman, Miss W, without a condom while she was asleep.

There is more here, but as far as I know it hasn’t been verified.

That’s Not What We First Thought

No, but as I said, the Swedish authorities don’t want to disclose the evidence. The Swedish tabloid Aftonbladet published erroneous information.   It has an interest in the case. The newspaper agreed to have Julian Assange write a monthly column for them, in return for which he would be able to apply for full source protection under Swedish press freedom laws. This is covered in excellent detail at Ministry of Truth.

This would not be the first time Aftonbladet has displayed a casual attitude to the truth. The paper published a ‘medically impossible’ reworking of the anti-semitic ‘blood libel’ (the claim that Jews harvest the blood of gentiles), alleging that IDF soldiers harvested the organs of Palestinian teenagers.

More on the misreporting of the case can be found at Feministe and Jessica Valenti.

Why is Sweden Withholding Information?

Sweden has not withheld the allegations, but the full evidence they have against Julian Assange. This appears to be because of the stage of the investigation. Assange is currently wanted for questioning by police. If that is the case, then it is natural that they don’t want to disclose any more evidence than they absolutely have to. This is because if a suspect is given all the information in advance of questioning, it gives him time to concoct a defence. This is the basis of the police caution in the UK (‘…it may harm your defence if you fail to mention when questioned something you later rely on in court’). The earlier a defence is advanced, the more likely it is to be true. If the suspect has a genuine defence, he shouldn’t need to see the evidence against him.

This is a similar position to that in England and Wales. The police do not disclose detailed evidence to the defence until after the suspect has been charged. At the very earliest, the police would disclose some of the evidence in an interview conducted in accordance with the Police and Criminal Evidence act 1984 (PACE) [] (warning, this link is not up to date) and its codes of practice.

The Swedish prosecuting authorities want Julian Assange to give truthful answers to police questioning, and that shouldn’t need prior disclosure of the full detailed evidence. By asking for this, the defence are demanding to be treated differently from other suspects in a criminal investigation.

Hasn’t Julian Assange Offered to Co-Operate with the Swedish Authorities?

Not exactly. The Guardian reports that Sweden issued the Interpol Red Notice and European Arrest Warrant because Assange decided not to attend a scheduled interview with the Swedish Prosecuting Authority on 14th October.

Although the current line from his lawyers is that he is willing to be questioned, that agreement appears to be conditional on seeing the evidence in advance of questioning. That, for the reasons just given above, is not something Sweden is prepared to accept.

Has He Fallen Foul of a Law Against Unprotected Sex?

No. There’s no such law. If there were Sweden wouldn’t have any children.

What About “Sex by Surprise”?

This is the result of a mistranslation of the word överraskningssex, slang for rape. There’s no such offence in Swedish law.

Are these Crimes in the UK?

Because we don’t know what the evidence is, it is hard to be conclusive on this point. At its highest, the allegations appear to disclose prima facie cases of Rape, contrary to section 1 of the Sexual Offences Act 2003 (again, not up to date), and Sexual Assault, contrary to section 3 SOA 2003 (which replaced the old offence of Indecent Assault).

The relevant provisions are as follows:

1 Rape

(1) A person (A) commits an offence if–

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

(3) Sections 75 and 76 apply to an offence under this section.

(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

3 Sexual assault

(1) A person (A) commits an offence if–

(a) he intentionally touches another person (B),

(b) the touching is sexual,

(c) B does not consent to the touching, and

(d) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

(3) Sections 75 and 76 apply to an offence under this section.

(4) A person guilty of an offence under this section is liable–

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.

The CPS legal guidance can be found here.

For the purposes of the Act, sex is a ‘continuing act’. That means that initially consensual sex can nonetheless turn into rape.

Of note here is section 75 of the SOA 2003. As one of the allegations is that Julian Assange had sex with a complainant while she was asleep, he would be under the evidential burden to demonstrate either that there was consent, or he had a reasonable belief in consent.

One Complainant Didn’t Think it was Rape

This was suggested by Aftonbladet. The response by their lawyer, Claes Borgström, was the brief “they’re not jurists”. This needs some explanation. Rape has a specific meaning in law distinct from its social and moral meanings. For example, in England, rape can only be committed by a man. That would jar with many people’s view of what rape is. As I stated earlier, people don’t always realise that what happened to them is legally rape or another sexual offence.

Isn’t Going to the Police Together Suspicious?

The suggestion here is that the complainants didn’t want to pursue the matter until they both got together and one persuaded the other to go to the police. The idea is that they may have colluded as an act of revenge. That isn’t necessarily the case. It is a difficult decision to come forwards with a rape allegation. Some would rather just forget the event and get on with their lives. Individually the complainants may have just considered what happened to them a bad experience and preferred to get on with their lives. When they spoke with each other, it may well be that they only then realised the significance of what happened to them, and concluded that more was going on than just a bad experience. In that light, deciding to go to the police only after speaking to each other makes a lot of sense.

Doesn’t One Complainant have CIA Links?

There’s no credible evidence to support this contention. At its highest the suggestion is that she wrote an article sympathetic to US foreign policy. I wrote several papers sympathetic to US policy during my undergrad degree. I also wrote several papers critical of it. That doesn’t make me a CIA operative (though I would say that, wouldn’t I).

They Don’t Seem to Act Like Sexual Offence Victims

This appears to be a suggestion borne of prejudice rather than any informed understanding of how such victims behave. Reactions to date rape are complex and a lot of the discussion on this point owes more to myth than reality.

Are they Being Treated Better than Normal Rape Victims?

Naomi Wolf seems to think so. That does not, however, mean that they are making the story up.

I would also suggest that most rape victims do not get their names published all over the internet and subjected to a major campaign to rake through their entire pasts to find as much dirt as possible, before smearing them with as much innuendo as possible, while having what happened to them trivialised.

Doesn’t the Initial Decision not to Prosecute Indicate These are Sham Charges?

No. Rape is a specialist offence and the decision not to prosecute was taken by lawyers who have no special expertise in sexual offences. The case was re-opened by lawyers who do.

Lawyers legitimately disagree about the interpretation and application of the law a daily basis. It’s the very reason they exist. Prosecutors get things wrong. Indeed, this was a popular suggestion in the Ian Tomlinson case (though I happen to disagree). It is entirely possible for prosecutors to decline to press charges despite there actually being a case. There are plenty of cases where such a this has happened and a private prosecution has happened in its place, and succeeded. That is, I suggest, what has effectively happened in this case.

Isn’t the Complainants’ “Lawyer” Really a Politician?

Sort-of, but not in the way Julian Assange’s lawyer suggests. Claes Borgström is a practising lawyer and was equality ombudsman for a while. The misunderstanding comes from the fact that his similarly-spelt partner in the firm, Thomas Bodström, was Minister for Justice from 2000 to 2006.

Are these Holding Charges?

The idea here is that the charges are being used to get Julian Assange into Sweden, where it will be easier to extradite him to the United States.

This seems unlikely. As a matter of law, the UK has a much lower test for extradition than Sweden (“reasonable suspicion” rather than a “prima facie case”).

There is more detail here.

Although it is possible that he could be extradited to Sweden to take advantage of a regime for extraditing him for trial only, this is a convoluted process and doesn’t appear to offer any real advantage to US authorities.

Why Was Bail Denied at First?

I’ve covered this in another post. The court was always likely to consider Julian Assange a flight risk. He is a foreign national, who tried to keep his address secret, has a peripatetic lifestyle and no strong ties to the UK. He openly stated he was considering claiming asylum in Switzerland. The apparent conditions that were initially offered were insufficient to allay the court’s concerns.

Who Appealed the Bail Decision?

The CPS, independent of the Swedish Prosecuting Authority.

What Happens Next?

Bail is likely to hold unless there is a change in circumstances or Julian Assange breaches his conditions. A hearing will occur in January to decide how to manage the case, with the main extradition hearing in February. This will not be decided on the evidence but legal submissions.

Special thanks go to Carl Gardner and Matthew Taylor, who helped me with researching and editing this post.

If you want any other questions answered, please suggest them in the comments.

Note: Any comments naming the complainants will be redacted.

Assange Granted Bail

Julian Assange has just been granted bail. The conditions appear to be to surrender his passport, live at a known address, report to the police daily, observe a curfew and wear an electronic tag. He must provide £200,000 security, and £40,000 in sureties.

The court operates from a presumption in favour of granting bail.* It may only deny bail if the court has substantial grounds for believing certain specific conditions may occur. In this case the risk is that Mr Assange would “fail to surrender” (i.e. flee). If this test is likely to be satisfied, the job of the defence advocate is to propose conditions that minimise those risks.

For example, the risk of a defendant interfering with witnesses (a ground for refusing bail) can be minimised by specifying that the defendant reside at a location that keeps him far from the witness, and supporting this with curfew and reporting requirements that make it impossible for the defendant to be able to get to the witness. The key to a successful bail application can be putting together the right complement of conditions to allay the court’s fears.

Denying Mr Assange bail at his first appearance appeared to be the right thing to do. Julian Assange has made a big thing of his “nomadic” lifestyle, reportedly constantly moving between hotels, frequently changing his encrypted phones, and declaring that he was living in an undisclosed location. He has no particular ties to this country, and has experience of being on the run. When he was in court he virtually refused to give his address.

Much has been made of the celebrity sureties. This is an overstated element of the case. Bail is not about simply handing money over to the court. Indeed in Scotland it isn’t allowed (h/t @loveandgarbage). The idea behind sureties and security is that they give the defendant and his friends or relatives a stake in not breaching bail conditions. For that to be effective, the amount given has to be money that would represent a real loss to the defendant or person offering the surety. Moreover if it is a surety, it ought to be offered by someone whose connection with the defendant means that he is unlikely to make him lose his money. It’s all about making the defendant bear the risk of breaching bail conditions. When viewed in that light, high-profile sureties by rich celebrities, many of whom don’t actually know Mr Assange, suddenly don’t look like a very good bail condition. There is a vast difference between a multi-millionaire offering a few thousand in surety for a stranger, and someone offering a substantial portion of their life savings for a close family member. Indeed, it might even be viewed as simply “buying” a bit of publicity, with the benefits of being seen as supporting a folk hero outweighing any financial loss if he absconds. It is interesting that of all the sureties offered, only two were made part of the bail conditions.

What appears to have changed this time then is not the offer of relatively meaningless sureties but the imposition of clear and meaningful conditions that actually address the fear of him fleeing.

UPDATE: The Swedes are appealing. the decision.  Another hearing is due in the High Court in the next 48 hours.

UPDATE 2: *There is no presumption in favour of bail in a rape case.  I’m not sure that that applies in this case given it’s technically an extradition case.  Furthermore the CPS took the decision to appeal the granting of bail without consulting Sweden.

Not a Good Day for Fibbing Politicians

Phil Woolas lost his appeal over the Oldham East and Saddleworth election. A by-election will now have to be held.

The Judgment and a useful executive summary can be found over at the Judiciary website.

Meanwhile, David Chaytor has pleaded guilty to false accounting contrary to s.17 of the Theft Act 1968.

The judgment of the Supreme Court that upheld the rulings that parliamentary privilege did not apply in this case have just been put up, and a useful summary by WLR daily has just come out.