Put Up or Shut Up

Because if you tell me to, I will.

The Commentator is a relatively recent aggregate of centre-right blogs on the web. Today it has come up with this gem of an article:

How calling someone a “white bitch” is not racist and being a drunken Muslim saves you from jail.

The byline is equally subtle:

The defence of the drunk Somalian women was that they were Muslim and so weren’t used to drinking. The judge suspended the sentence.

The article is a particularly bad one, made worse by the dismissive response when it was challenged. It is riddled with inaccuracies, sloppy research and a poor understanding of how the law works.

The article focuses on three contentions that it suggests show that the law is not applied consistently in this country: the Edward Woolard case; the LSE-Guardian “Reading the Riots” report; and an attack on a care worker where the perpetrators received suspended sentences. Both this, and the article on which it is based, are build on extremely shaky legal foundations.

Edward Woolard is accused of receiving soft treatment from the authorities for his offence:

Instead of charging him with attempted murder, he was convicted of violent disorder and will likely serve a little over half of his thirty-two month sentence. It’s also unsurprising to note that Trade Union Congress supporters and the Socialist Worker Online are supporting Woollard, the latter referring to him as a “political prisoner” and insisting you send him a Christmas card.

This paragraph is utterly ignorant of the true legal position. It was never open to the CPS to charge him with attempted murder, nor was his sentence in any way unusual, as I blogged at the time. He got a textbook sentence for a textbook charge for a textbook offence. The CPS could not have charged him with attempted murder for three reasons. First, unlike full murder, attempted murder requires only an intention to kill. Intending GBH is insufficient. Second, even if the fire extinguisher had landed on someone and killed them, the more appropriate charge, as the authorities bear out, is unlawful act manslaughter. Third, you cannot present a case of “attempted unlawful act manslaughter”. It’s not open to you to do so. The CPS charged him with the appropriate offence, and he got the usual sentence. There was nothing remarkable about it.

So this isn’t an example of unequal treatment before the law.

The next plank of the article is Reading the Riots:

While harsher than usual sentences were doled out, following the initial shock and outrage thieves, looters and arsonists weren’t effectively condemned or shamed by society. Instead, we’ve been preposterously seeking out their rationale or intimating that “we are all to blame”– as one recent BBC Newsnight guest argued. The parents won’t take the blame and the Guardian and LSE insist that somehow it is anyone’s fault but the rioters.

There’s a sleight of hand here. The article is about equal treatment before the law. It notes that in fact rioters got ‘harsher than usual sentences’, which undermines its claim that we’ve somehow gone soft. Then it does a clever little bit of misdirection. Despite undermining their case, they argue that in truth it supports them because of the societal response.

But this is an article about the application of the law, isn’t it? What Guardian journalists and LSE researchers think about the underlying causes of the riots doesn’t have any relevance to whether the law is being applied equally, much though they might wish to think so.

So far, so bad.

This all builds up to the central theme of the article, that a group of attackers got off lightly because they claimed they were drunk Muslims. If that sounds like a caricature, please remember that I am only repeating the title of the article.

This is the offending (and offensive) part of the article:

Not content with calling care worker Rhea Page a “white bitch”, the Somalian women set upon her, leaving her “black and blue” and subsequently ushering her into unemployment due to the substantial mental trauma she suffered. Miss Page commented: “I honestly think they attacked me just because I was white. I can’t think of any other reason.”

But seventeen months later, Judge Robert Brown dismissed such claims and the women were not charged with racial aggravation. Judge Brown said, “I’m going to suspend the sentence” and that he accepted the attackers’ claims that they felt Miss Page’s partner used unreasonable force to defend her. In our estimation, from the video below, he was more restrained than we might have been.

Gary Short, who defended the attackers said: “They’re Somalian Muslims and alcohol or drugs isn’t something they’re used to.”

This is what qualifies as a legal defence in twenty-first century Britain. No need to worry about the law. No need to be concerned with the consequences of your actions. If you can find an excuse, especially if it is in a minority religion, then you’ll be free to go.

While it is an undoubtedly awful attack, the reporting here is truly dreadful.

Let’s start from the worst and work up: “This is what qualifies as a legal defence”. No, it doesn’t. The defendants all pleaded guilty to ABH. This is a plea in mitigation. It will not get you off, and you are not allowed to deny the facts of the offence. This is not hair-splitting, or jargon, as the Commentator suggested earlier on Twitter. It is completely misleading to call this a legal defence; it suggests (as was, I suspect, the author’s intent) that if you go to court and say “I’m a Muslim/Jew/Mormon etc.” you’ll be acquitted. That is not what happened. Drunkenness is a legal defence only in some very narrow and specific circumstances; the rest of the time, it is no excuse. What’s more, taking one sentence of a plea in mitigation out of context is extremely misleading: without the context you simply can’t know what the thrust of Mr Short’s submissions were. At an informed guess though, it is unlikely that he was saying “let them off because they belong to a minority group”.

Moreover, it’s not even clear that such mitigation really is about their religion. The central thrust of such an argument is not that they’re Muslims, but that they’re not used to drink. Presumably that’s to suggest that their behaviour was out of character, which is a normal piece of mitigation. Their being Muslim would only be evidence to support that proposition, in the same way that my being Jewish might be evidence that suggests I didn’t rob the local butcher for its finest pork chops. But the point here is that it is a matter of evidence, which is case-specific, rather than the law.

“You’ll be free to go” is no better. They weren’t free to go. They have all got suspended sentences. That is as harsh a penalty as the court can impose short of actually sending you to prison. You have to comply with strict conditions (including, here, 150 hours of community service each and curfews), and if you breach those conditions, or commit another offence, the sentence is activated and you will go straight to prison. This is not a soft option, and it isn’t unequal treatment.

“Judge Robert Brown dismissed such claims and the women were not charged with racial aggravation”. That sentence simply doesn’t work. Either the charges were dismissed by the judge, or they weren’t charged, but it can’t be both. The Telegraph suggests that they were never charged with it. That would be perfectly normal. Unlike in the USA, English prosecutors have to be economical with charging practices. You only charge for the minimum offence you need to prove to get the appropriate sentence. If the CPS felt that this was never going to get a sentence longer than five years, then there is no advantage in charging them with the harder-to-prove racially aggravated form of the offence. This approach would be taken in any other case, irrespective of racial issues. It certainly does not suggest the CPS went soft.

“Accepted the attackers’ claims that they felt Miss Page’s partner used unreasonable force to defend her.” No he didn’t. You have to look more closely at what the judge is actually reported to have said:

He said he accepted the women may have felt they were the victims of unreasonable force from Miss Page’s partner Lewis Moore, 23, who tried desperately to defend her from the attack.

That is like the non-apology you get from someone who’s said something offensive: “I’m sorry you feel that way”. The formulation is entirely subjective. The judge is saying that he accepts that the defendants themselves may have subjectively felt they were the victims; he does not say that they objectively were the victims. In fact, he rejected their claim that the victim’s boyfriend started the fight.

So all that leaves is the fact of the suspended sentence. Why did they get it? All we are told is that in the plea in mitigation their lawyer said they weren’t used to drink, and subsequently they got a suspended sentence. What we are not told is whether the one had any relation to the other, or, if it did, how significant that was. Again, without seeing the fuller plea in mitigation it’s not really possible to tell why they were given a suspended sentence.

Brown J said:

“This was ugly and reflects very badly on all four of you. Those who knock someone to the floor and kick them in the head can expect to go inside, but I’m going to suspend the sentence.”

That suggests that this case had some particular factors that just pushed it below an immediate custodial sentence (though, like any suspended sentence, it passed the custody threshold). There could be several good reasons why that would be. First, they appear to be first-time offenders. Prison is generally not seen as appropriate for a first offence if it can be avoided, as the risks of exposure to hard drugs and more serious criminals risks producing someone more dangerous in the long run. If a non-custodial option can work, then it is generally more appropriate. If the defence’s submissions are what I think they are, i.e. that this was out of character, then the court would look favourably on an attempt to try and give them one last chance (though backed with serious sanctions if they mess up). Moreover, the defendants all entered early guilty pleas, which provides an automatic sentence discount. That may well have pushed them just below the immediate sentence line. Had they chosen to go to trial, and put the victim through the ordeal of re-living the event and the attendant uncertainty of getting a conviction, they would likely have gone straight to prison for a longer sentence. Finally, and more interestingly, there seems to be a particular personal circumstance at play:

As well as the suspended sentence, Hibo Maxamed, who needs dialysis three times a week for a kidney complaint, received a four-month curfew between 9pm and 6am.

That could easily sway the court in favour of avoiding a prison sentence. The prison service would have significant difficulties giving him the appropriate treatment. If a sentence could be found that would avoid that, it could be looked on favourably. The other defendants may have had connected carer roles that made the court reluctant to send them to prison. None of those factors, however, would count in any way as special treatment. They are ordinary sentencing considerations and can be found in the guidelines. There is nothing to suggest that there was any unequal treatment here.

There are, of course, aspects of the law that are open to criticism. One can argue that the conditions of suspended sentences aren’t strong enough; that an inflexible sentence discount leads to practical injustice; and so on. I’m not a bleeding-heart liberal in terms of sentencing. But the debate has to be done on the basis of everyone sharing the same basic facts about things. Commentary on and criticism of the law is necessary in a healthy society. It must, however, be based on a sound understanding of how the law works, not a load of dismissive hand-waving.

Get Out of Jail Free?

Hooray! I’m back.

If you’ve been reading the legal blogs recently you will have witnessed a rare and beautiful thing: a broad group of lawyers being unanimous and unequivocal on what the law is.

I intend to add to that spectacle.

Comment is Free recently let some of the more disreputable parts of the #OccupyLSX crowd post on their site. Among them were a group that call themselves “freemen of the land”. Here are some of their articles:

Yes, Defaulting on Debts is an Option

Money has been Privatised by Stealth

Welfare, education and law at the Occupy Camp

Those first two articles’ titles might indicate that the authors have a certain estrangement from reality. Number three looks unobjectionable until you discover that it is written by a chap who goes around calling himself “commonly known as dom”. A bit Pythonesque (scroll through to 1:10).

Absurd titles aside, this group believes it’s discovered a series of amusing loopholes by which you can avoid the jurisdiction of the court and prevent people from chasing you for debts. This group runs sites like Get Out of Debt Free, that offer you meretricious pseudo-legal advice on how to do exactly that. A particular gem is the idea that if you capitalise your name, you forfeit all legal rights.

I’m not going to go into a detailed rebuttal, because they’ve been done elsewhere and I’d recommend you read them if you are interested.

UKHRB: Freemen of the Dangerous Nonsense

Carl Gardner: The law is not the enemy of protest but an essential tool of impartiality

Legal Bizzle (who has to endure these people for a living): Comment is free, but woo is sacred

All I will pick up on is how elementarily stupid the concept of exempting oneself from certain laws is. The Freemen appear to believe that statute law (or for that matter, a court) has no binding effect unless you consent to it. But let’s think about this. If you can opt out, so can anyone else. “Anyone else” includes debt collectors. So, if you opt out of the legal means for pursuit of a debt, the debt collectors can opt out of the sanctions against illegal means.

In other words, if I ran a debt collection agency I could opt out of the Offences Against the Person Act 1861, the Theft Act 1968, the Criminal Damage Act 1971 and the jurisdiction of the courts of England and Wales. I could also opt out of the Law of Property Act 1925 and the Land Registration Act 2002.

Having done that bit of groundwork, I could then send some thugs round to what is commonly known as your home (I’ve opted out of the law of property so I don’t recognise your legal title to it), break into it (I’ve opted out of the CDA so it’s not a crime), take all your stuff (I’ve opted out of theft and burglary being offences), smash other stuff, then rough you up for good measure (no assault/ABH/GBH for me, I’ve opted out of the OAPA!). If I were to be taken to court or arrested, I’d just stand up and say something in latin, refuse to capitalise my name and say I don’t consent to the jurisdiction. Get out of jail free, pass Go and collect all your stuff.

If, despite all that the court gets the odd idea into its head that it might be able to exercise jurisdiction over a British subject, I will at the very least have done excellent groundwork for pleading insanity.

There is absolutely no reason why, under Freeman’s logic, this scenario wouldn’t be equally possible. Legal rights, or lack thereof, work both ways.

Presumptions of Guilt

I’m on holiday so I haven’t really been following the legal news closely recently.

The coverage of the Levi Bellfield trial though has been troublesome.

Beneath the Wig has a very good explanation of the underlying issues and I’d suggest you go there to look at the reasons the trial went as it did.

This may also explain why law bloggers have been largely dismayed by the attitudes about the trial in the media.

Hindsight is a wonderful thing. It also doesn’t work well for a justice system. Much of the uproar has been on the basis that ‘Bellfield shouldn’t have been entitled to a defence because he was obviously guilty‘. Such firmness of conviction comes from the verdict rather than the indictment.

Bellfield may have been “obviously guilty” (though I disagree). But then so was Colin Stagg. So too were the Guildford Four, the Birmingham Six and so on. So too Craig Charles, and a whole load of people whose convictions appeared damning.

The suggestion is that the defence should pull their punches to save everyone some discomfort. That may well make for a more sanitised trial, but it will, as sure as night follows day, result in innocent people being sent to prison.

If you are innocent, it means at least one person has been mistaken, negligent or dishonest. You cannot tiptoe around the issue. It has to come out and it has to be put directly to the person. This is, believe it or not, for the benefit of the witness: cross examination is the chance they have to refute any such accusation.

You may say that that’s all well and good in theory, but it doesn’t detract from the fact that the Dowler family went through a traumatic experience in the witness box. Of course it doesn’t.

But let’s turn it around. As you will see from the link above, the police at one point suspected Mr Dowler of being involved in his daughter’s disappearance and death. They had reason to be suspicious. This was the reason the defence was pursued as it was. Suppose, as is known to happen, the police got over-excited or sloppy, and it was Mr Dowler in the dock rather than Mr Bellfield. Would you honestly say that his innocence should be compromised to spare the feelings of others? Would you be happy with a conviction that resulted from such misplaced goodwill?

Of course not.

Spin Spin Spin

Stop presses, the Daily Mail is running a story that bears no relation to reality.

Following the climbdown on proposed reforms to the criminal justice system, the Mail is in jubilant mood. In particular it’s claiming the following as a victory:

Homeowners and shopkeepers are to be given the right to protect themselves against burglars and robbers.

They will now be allowed to use reasonable force if they perceive a threat to their property. Previously they could act only when they feared for their lives.

Except there’s one slight problem: this is already the law. The test for self-defence is reasonable force, and the law applies to the protection of property. It’s all neatly laid out here.

So who’s fibbing?

Save Bailii

You will notice that in some of my posts I link to transcripts of judgments.

These are provided by Bailii, the British and Irish Legal Information Institute. They are a charity that take the judgments of the higher courts, convert them to a simple format and upload them free of charge.

If it were not for Bailii, the only databases of judgments would be the expensive commercial ones such as Lexis Library and Westlaw. While these are excellent, they are so expensive as to make them effectively unavailable as a general database for use by private citizens.

The great advantage Bailii offers you if you are a lay person is that it allows you to go off and check the source of many of the legal stories in the press. You don’t have to rely on a newspaper account, nor do you have to rely on the excerpts I provide you in my posts. If Bailii did not exist you would be at the mercy of editorial decisions and unable to go off and verify what has been written for yourself.

Bailii is, however, in a funding crisis. Their annual operating costs are around £160,000. One of their main donors has pulled out, and others are making funny noises. They need donations to meet the funding shortfall or they may go under.

I take making the law accessible to the public very seriously. It is one of the reasons I set up this blog. Bailii is one of the best ways this is being done, by making the judgments that decide the law of the land available to the general public free of charge. It is an essential service.

They are appealing for funds here. I implore you to donate whatever you can to them.

If you have come to this story via Twitter, please RT it.

Injunctions: Where Now?

I’ve been understandably busy the last few weeks so have largely watched the story unfold from the sidelines. I will have a stab at a few observations.

Superinjunctions are More Likely

Like I said before, very few of the cases under discussion involve superinjunctions. They are very rare. I suspect they will be less so after this case.

Superinjunctions are granted because granting an ordinary injunction will defeat the purpose. What we have seen writ large is a very clear argument in favour of increasing the use of superinjunctions. The press reacted to their being injuncted by engaging in a cat-and-mouse game of jigsaw identification.

Knowledge of the fact that an injunction had been granted spurred people on to try and break it.

The net result is that claimant lawyers are going to be able to argue with more cogency that only a superinjunction will protect their rights, as any discussion at all will otherwise risk it being blown wide open.

Internet Enforcement is Possible

It’s very easy to think that the authority of the courts does not extend to as distributed a network as the internet, and that you can stick two fingers up to the law online and get away with it. This is massively short-sighted.

The law may not be able to police the flow of data in the way it can a physical person or location, but it can exercise a great degree of control over the users of the internet within its jurisdiction. Safety in numbers is also an overblown fantasy.

Enforcement online against the distributors and users of child pornography has been extremely effective to the extent that it is very hard to find it in a medium supposedly as anarchic as the internet. Similarly, efforts against the online presence of jihadist groups in the past have ensured that they lack the security and stability that many come to associate with the internet. When authorities want to enforce their will against those breaking the law online, they are very capable of doing so.

Second, there is no strength in numbers. You do not have to go after every one of the 75,000 Twitter users who reposted CTB’s alleged identity to have the desired effect. You go after those in the press who spread the information online, and then a random segment of Twitter users. By creating a risk you can have the desired chilling effect.

It is surprising how quickly the idea that you can chill speech online has been forgotten given that Twitter’s previous causes célèbres, libel reform and #twitterjoketrial, have had this as their focus. The latter is particularly instructive. Depending on who you listen to, Paul Chambers was prosecuted to scare people off making flippant bomb jokes on Twitter. Even though there was the #iamspartacus campaign soon after that retweeted his original statement, you’ll see that people are now very careful to either not make those sort of jokes, or emphasise that it is a joke by referring to the original tweet. That’s because people are aware that the authorities are willing to prosecute you for it. There is little reason why the same could not be done in a privacy case.

The Pendulum will Swing

There may be a popular mood against privacy injunctions at the moment, but I suspect that will shift the other way as the media get over-excited. John Hemming, in particular, could well be its downfall. He has managed to jump aboard the bandwagon extremely well, combining his own personal vendetta against the family justice system with a desire for gossip about footballers. But I suspect there will come a point where this newfound feeling of popularity and invulnerability will result in public feelings of unease at what is being done in the name of freedom of expression.

Take the case that Beneath the Wig reports:

Yesterday, a new Twitter account started sending out tweets containing details of what the user alleges are super-injunctions, including the case referred to by John Hemming on 26 April.

In referring to that case, the account publishes an address. An address which, if correct, is the home of a child.

In his desire to undermine the ‘secrecy’ of the family justice system, Hemming has, quite possibly, put a child at risk. It was reasonably foreseeable, given what is out there about this case, that someone would do this.

Sadly, I suspect that more of this will happen.

Parliament Will not Legislate

Or, if they do, it will be a largely cosmetic “change” in the law (much like some of the Compensation Act 2002). Even if the law is not quite to Parliament’s liking, whatever they come up with will almost certainly not be to the media’s liking. I doubt many MPs would want to face the criticism that the papers would heap on them if they dared suggest that there are things the media ought not to do. So I suspect it will be kicked into the long grass.

A Shift to Intrusion

After the widespread naming of CTB on Twitter and in a Scottish newspaper, the papers failed to get the injunction overturned. The reasoning is interesting. I post below the entirety of the judgment below (emphasis mine):

Mr Justice Tugendhat:

1. At about 1430 this afternoon Eady refused NGN’s application to remove the anonymity he had granted to the claimant on 20 April. He said at para 23 ([2011] EWHC 1326 (QB)) that “It is important always to remember that the modern law of privacy is not concerned solely with secrets: it is also concerned importantly with intrusion”. Intrusion in this sense includes harassment.

2. Very shortly afterwards a name was mentioned by Mr Hemming MP in the House of Commons in the course of a question which was interrupted by the Speaker. On that basis NGN asked me to hear a further application shortly after 5pm for the anonymity of the claimant to be removed. As the public now know, anyone who wanted to find out the name of the claimant could have learnt it many days ago. The reason is that it is has been repeated thousands of times on the internet. NGN now want to join in.

3. It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose. But in so far as its purpose is to prevent intrusion or harassment, it has not failed. The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life. The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection. The order has not protected the claimant and his family from taunting on the internet. It is still effective to protect them from taunting and other intrusion and harassment in the print media.

Whether or not this is new law is not for me to say. But what is interesting is the focus on the modus operandi of the media, and not just the nature of the information they seek to publish.

The Supreme Court, Live

Sky News have put up a live streaming channel covering proceedings in the UK Supreme Court.

The usual restrictions on filming proceedings don’t apply, and the Court has several cameras installed. Sky is streaming these.

The site is rather impressive: a decent resolution streaming video with explanation of the court to one side, and the list below (with links to case details) so you can see what’s going on.

The link is here, do have a look if you have a spare moment.

Footballers and WAGs

It seems an appropriately topical time to post this.

No, I’m not breaching any injunctions, super, mega, hyper, boring, interim, final or inferior.

I am, when not writing or learning about law, the President of the Inner Temple Drama Society.  For our Easter Show we are producing an updated and expanded version of Gilbert and Sullivan’s Trial by Jury.  WS Gilbert was a member of Inner Temple, and the show will be on the week of the centenary of his death.

The show is updated and extended, incorporating music from other G&S Shows.  The story now revolves around a breach of promise of marriage by a footballer to his WAG.  Cue celebrity parodies, super-injunction gags and so on.

We have been very fortunate also to have the role of the Judge played by a retired judge, HHJ Michael Kennedy QC.

Performances are on May 24th at 7:30 and 9pm, with tickets at £8, £5 concessions.  For details contact 

The Power of Twitter

There’s a lot going round in the press today about the power of a certain twitter account claiming to name the “superinjunctors”. The claim is that in so doing they have demonstrated the ineffectiveness of the legal system in keeping up with technology, with injunctions being unable to effectively police the online realm.

This is, of course, a very convenient story for the press to run. “We are being good as gold, but the position is farcical because you can go online and find out for yourself”. The underlying implication is that no matter what the court orders, the information will come out.

This is, inconveniently, untrue.

For private information to get out it has to come from somewhere. It is clear, given that several of that account’s claims were incorrect (most notably the Jemima Khan one), they aren’t getting their information from a decent source.

Where that information is common knowledge though is in newsrooms. The media organisations all have to be served with the injunctions to put them on notice under the Spycatcher principle, and prevent any inadvertent breach.

Since then, there has been a persistent campaign of “jigsaw identification” by certain newspapers of the persons who took out the injunctions. No explicit details, but clever use of other facts, innuendo and positioning of articles left a paper trail for others to follow.

Those I know who know the identities all picked up the information this way, and the twitter account only confirmed the information they already had.

So to say that this is a demonstration of the power of the internet is misleading, perhaps deliberately so. It is a demonstration of the willingness of the newspapers to use any means at their disposal to try to undermine the injunctions, presumably in contempt of court.

Nor should tweeters think that there is safety in numbers. It would probably only take a few targeted contempt proceedings against some easy targets to have the desired effect. There’s a reason we have the word “decimation”.

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