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.

Celebrations Are in Order

Mr Gray has been Called to the Bar, cue much celebration and so on.

Normal service will resume in approximately a fortnight.

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”.

Superinjunctions

It’s a rather old media trick to invent a scandal. The press leads with reports of, for example, “pressure is mounting on x to resign”. It doesn’t matter that the pressure does not exist; by publishing the story, the media invent the pressure and the prophecy is self-fulfilling.

I can’t help but feel the same about the coverage of so-called “superinjunctions”.

I am not insensitive to the very real damage caused by marital infidelity. But I appreciate that some cases are more complex than the media gives credit. I also do not buy for one second the media’s claims to be guardians of morality. There is a suggestion that when you print a story about marital infidelity, you normalise the behaviour. If you really were interested in preserving the sanctity of marriage you’d be withholding the information, rather than circling like vultures over a dying relationship. I really don’t see how sensationalist media coverage of marital crises helps anyone in the relationship.

The kiss and tell is at heart a grubby commercial transaction. It has very little to do with morality and everything to do with money. Women knowingly sleep with married men, then pit them against the press in a bidding war for the story. The woman is usually not interested in “speaking out”; if the celebrity is the highest bidder the story stays hidden until the next round of blackmail. Nobody involved looks good.

There is, as always, scope for debate on where we draw the line between the Article 10 right to freedom of expression and the Article 8 right to home, family and private life. Unfortunately, as usual, that debate is being muddied by a self-interested media.

It’s worth understanding, in this context, what an injunction is.

An injunction is simply a court order for someone to do, or not do, something. An interim injunction is one you get pending the final decision of a case to preserve your position. A superinjunction is simply a particular type of injunction whose terms forbid you from even saying that the injunction exists.

To give a playground example:

  1. Injunction – “Do not play with the claimant’s toys.”
  2. Interim injunction – “It is not clear whose toys these are. Until we decide that, nobody is to play with them.”
  3. Super Injunction – As with 1 or 2, but also: “Don’t tell anyone that this injunction exists, because if you do so the whole point of the injunction will be defeated.” (admittedly that doesn’t work with the example I’ve given, but hopefully you get the idea).

Unfortunately, this distinction appears to be lost on most commentators. “Superinjunction” has suddenly become a term of abuse used by people to decry any kind of privacy injunction. Most of the stories the media are running with are not superinjunctions. If they were there wouldn’t be in the papers. Most of them are in fact interim injunctions designed to protect the applicant’s privacy until such time as the case can be fully argued.

It’s a holding position: if you print the story now and the claimant wins, they can’t get back their privacy. If you don’t print now but you win at trial, you still have a story that will sell your papers as it will have been subject to an effective embargo. The point being that the cases are often too complex to immediately be settled in an interim application and instead full argument should be heard at trial. Given the level of controversy in this area, you would think that people would want to be able to have the fullest argument possible rather than just letting the media have their fun.

The cases currently under discussion are interim injunctions that simply delete the names to preserve the privacy of the claimants. That was done, I am told, to accommodate press concerns about being prevented from saying anything at all about a story. In other words the judiciary accepted that superinjunctions might be too restrictive, and opted for the least restrictive order possible, balancing the media’s rights against the claimants’, as the Human Rights Act requires them to. They get the story, they just don’t get all the names.

Given that the media have then used that opening to try and undermine the injunctions in their entirety through ‘jigsaw identification’, you might conclude that this was a concession too far. It might even leave you thinking that the only way to prevent the media reporting the story is to not even let the injunction be the story.

This “debate” is not helped by a lot of myths being spread. First, that privacy law injunctions are solely the preserve of rich men. They aren’t. The reason injunctions are being used to protect the affairs of rich and famous (not necessarily important) people is that they are the ones the press write about. Nobody cares if some bloke I know down the pub is cheating on his wife. It wouldn’t sell any papers. By contrast a story about a celebrity love-rat will sell loads. As we’re seeing with the discussion of Jemima Goldsmith’s privacy injunction (again, not a superinjunction, and horribly misreported) they’re not the sole preserve of men. Indeed in that case the celebrities were the ones named, and it was the defendant who was anonymous (with the Goldsmiths’ agreement).

The pricing is also misleading. You can get a privacy injunction, indeed a superinjunction, for vastly less than the £200k figure being thrown about. The costs only rack up that high because, if you have a lot of money, you’re going to get expensive lawyers. The press themselves take on expensive lawyers and are not above using that fact to intimidate people into settling. But the basic cost of getting an injunction is low.

This mythmaking is not helped by John Hemming MP, who jumped on the bandwagon very effectively to further his own, separate, agenda against social services. His case in fact isn’t a superinjunction at all. I would recommend you look at Head of Legal (see here, here, here and here) and Ministry of Truth for more information on this.

The two injunctions that are at the centre of this outrage are less troublesome when you bother to look at them in detail. The first case, OPQ, the injunction contra mundum, is relatively straightforward. X took intimate photos of Y and threatened to sell them to the papers unless Y paid her off. That is a “straightforward and blatant blackmail case” and a criminal offence. Moreover intimate photos are “clearly private”. Moreover there was ‘solid medical evidence’ that publishing would have a serious effect on the health of the Claimant and his family. In that situation granting the injunction looks like common sense.

In the other case, ETK, much has been made of the emphasis on the effect of publication on the children. This is a potentially novel approach to the issue but not surprising when you look at the judgment. In essence we have signed up to so many treaties protecting and promoting the rights of the child that the court was required to protect and promote the rights of the child. The underlying assertion that the kids should just be left to be bullied and the press aren’t in any way responsible for it make one a little uneasy. This especially so given the experience of a case I will come to in a moment.

Why, then, is the media getting all wound up if the situation is more favourable than they make it look? It has something to do with Max Mosley. You will recall that he was accused of taking part in a “SICK NAZI ORGY” and of mocking holocaust victims, despite there being no evidence of any Nazi element.

The consequences for Mosley were personally devastating. His son, a recovering drug addict, suffered a fatal relapse from the pressures of the story.

Unlike many such cases though, rather than taking matters passively Mosley went on the offensive and won substantial damages from News Group Newspapers for the invasion of privacy. The case is worth reading in full to get an understanding of just how the celebrity exposé story works, and how far removed it is from the morality the press profess to uphold. Mosley won, and has pursued his case to the European Court of Justice. In particular, he wants the press to notify the subjects of the story before they publish, to allow them time to consider their legal position. The case is to be decided this week, and the press fear that it will go against them. Consequently they are whipping up anger by conflating a number of different issues.

It’s also worth considering this: I have encountered numerous people who are quite happy to break the terms of the injunctions discussed here. I have not named a single one of them. If I did I suspect they might be rather angry. Perhaps because they feel they had a reasonable expectation of privacy when they spoke about it. If that’s how they feel, then perhaps the law of privacy isn’t as bad as it sounds?

As always, your thoughts and opinions are welcome. If, however, you try to break the terms of any injunction, your comments will be either redacted or deleted.