Sunday, 29 March 2009

Moving blog to Wordpress

I have decided to move this blog to Wordpress from Blogger in order to obtain more stable access.  Several people have informed me that Blogger crashes when they try to load it.  I have taken the opportunity to give a more descriptive title to the blog.  It will be known as "Justice, Media and  Economics" to capture the core theme of my contributions.  I have transferred over all the posts in this blog so that continuity will be maintained.

Monday, 23 March 2009

Victim's Law

The News of the World, a Sunday tabloid, campaigned to allow parents to find out where paedophiles live, the so-called Sarah’s Law. Sarah Payne was a girl who was murdered by a previously convicted paedophile. The campaign has been partially successful and pilots are underway around the country. The police feared vigilantism. This has not happened because the scope of the scheme has been restricted to enquiring about specific individuals who have contact with one’s children. It is not an open list of paedophiles. The police carry out a risk assessment before deciding to respond.

There is a balance between public protection and the right to privacy. The risk of a child being snatched is greater in the vicinity of paedophiles. Even if the risk is low, many parents would like to know if there is a specific risk. Meanwhile society wants to rehabilitate the low-risk convicted paedophiles so they can rebuild their lives and put their past behind them. In these circumstances, the right to privacy gives way to the need for public protection. The right to privacy is surrendered upon conviction.

The mother behind the campaign, Sarah Payne, has been recognised for her extraordinary achievement in bringing about greater openness in hereunto private information. She has received an honour from the Queen. She has also recently become our first Victim’s Champion and will speak up for victims who are now at the centre of the criminal justice system. This new role raises a fundamental constitutional issue.

Emphasising victimhood marks a further departure away from justice for defendants. Currently, Victim Impact Statements are read out at the end of a trial prior to sentencing which capture the sorrowful nature of the offence. It is for the judge to decide on sentencing bearing in mind all aspects of the case. Under our legal system the sentencing is based primarily upon culpability, not on consequence. This is why death by driving cases cause so much anguish. A single moment’s inattention is not punished with life imprisonment. An eloquent impact statement should not lead to a more severe penalty than one where the family does not prepare a statement.

There is a further concern if the Victim’s Champion is also a progenitor of an eponymous law. To what extent is the Victim’s Champion pursuing a personal agenda? If the country is to introduce such a role, it should be defined in an objective way. What is meant by a victim? Who can speak for victims? What do victims need? How can the court experience be improved? What happens if the defendant is found Not Guilty? A Home Office Minister should answer these questions properly and after a due political process. Fundamental questions should not be left to a celebrated victim with a strong media presence.

Sunday, 22 March 2009

Street View

Street View is an application from Google which displays a drive-through photographic view of each road. The level of detail captured by the photographic record is comparable to that a passer by might notice. I have used it to explore the streets of my childhood. One wall where we used to play in the street looked so tall to me as a small child - but now it has unaccountably shrunk. The entrance to my primary school looks tiny. I looked to see if the crane flies and spiders webs were still there - phew, I couldn’t see them.

Street View opens up the possibility of a visual history of our lives. Quite often I pass by a demolished site and strive to remember what was there before. With one-in-seven retail sites being closed at any point, it is hard to keep up. Old houses are redeveloped. The visual landscape remains in memories and some old photographs but one cannot find a visual history. I want to rewind to the places that used to exist. Peoples’ lives were shaped by stores like Woolworths and local grocers and bakers and butchers. Mums carrying heavy bags would stop by the Lyons Corner House for a pot of tea and some cake. Dad would pop into the King’s Head for a quick pint and a smoke. These social historical landmarks have disappeared within one lifetime.

The initial British reaction to Street View is typically circumspect. Firstly, there is the Privacy argument that our homes should not appear on the internet for all to see. This is not very convincing from the country with a higher density of CCTV cameras than any place else on earth. There is no law against taking pictures from a public space (unless for criminal purposes). Residents of private roads would have a better claim to privacy. Secondly, there is the argument that burglars would find it easier to case a joint and select their getaway route using their (stolen) laptop. It is difficult to believe that this will lead to much additional crime. If only some our criminals were to adopt such a systematic approach to the rest of their lives, then they may not need to break into houses. The fact is that all new technologies enable criminal activities but these also bring new modes of fighting crime. Mobile phones are used by gangs to communicate - but phone records can be used to show the connections between the suspects and the events. Leaving a trace of a search on a particular address which was burgled could be incriminating.

Those who object to having their property viewable on the internet can request it be removed. Yet this is likely to attract more attention. Why would someone want their property to be blanked out? Perhaps they have something valuable to protect. No doubt there will be a service showing all the places that Google redacted. The fatal flaw with being a white moth in an industrial landscape is that all the predators notice you. Surely it is far better to blend into the anonymity of familiarity. Sensitive commercial or government buildings are often characterised by nondescript architecture without any signage. There is no need to depart from this stratagem.

There are plenty of groups for whom the new visual convenience will be of great benefit. Tourists will explore from afar and know what to expect. Disabled people will anticipate access issues. House hunters save legwork and petrol. Car parkers want to know where looks safe. Parents can see where their children live.

Perhaps in exchange for being allowed global domination, Google should have a Global Service Obligation to archive all systemic public knowledge. Regarding Street View, let’s define some obligtions: where vehicles obscure views, send the photocar again; update each photo regularly; create time-views going back to the earliest records. We want nothing less than the map of the world for modern times.

Thursday, 19 March 2009

Victim of the criminal justice system

The government is placing victims and witnesses at the “centre” of the criminal justice system. The Law Reform, Victims and Witnesses Act will enable anonymity of victims and witnesses in court. Appearing in court is scary enough for most people. Those who are intimidated or vulnerable would be spared having to testify in person against the object of their fears. If more people are prepared to stand up in court, there will be more convictions. This is part of the government agenda to bring more offences to justice, reflecting public sentiment.

The inherent contradiction in this approach is that we also need to ensure that the defendant has a fair trial. It is essential that the defendant should know what he or she is accused of and who the witnesses are. A witness who is granted anonymity presents two types of problem. Firstly, the fact that special measures have been taken will indicate to the jurors that the defendant is regarded as intimidating. Secondly, the possibility of challenging the evidence is restricted. Of course, we can get more convictions if we are prepared to compromise on fairness, but is this what society really wants?

Sean Hodgson has just been released after 27 years in jail for a murder that he did not commit. He was not eligible for parole since it is conditional upon an admission of guilt. He refused to admit guilt on the not unreasonable grounds that he did not commit the crime. Even though he suffered from mental health problems, he maintained his integrity and dignity.

These “miscarriages of justice” always command considerable media interest reflecting the genuine public concern that the criminal justice system should be reliably accurate in identifying perpetrators. The fact that Hodgson had originally confessed to the crime, and provided details to the police which were not generally known, demonstrates why the original conviction was beyond reasonable doubt. The conviction has now been deemed unsafe following a review of the DNA evidence. This evidence could have been reviewed over the years, but never was. It took a determined new defence solicitor, instructed following an advert in the prison newspaper, to track it down. What this shows is the vital role of the defence. The rest of the criminal justice system has little incentive to uncover exculpatory material unless prompted.

The Oxford Dictionary of Modern English defines a victim as a person injured or killed as a result of an event or circumstance. Judging by his fragile state of health as he emerged down the steps of the Court of Appeal, the released man is a victim. He will be entitled to financial compensation although nothing can make up for his loss of freedom and health. The question we have to confront is whether we want to have more Sean Hodgsons in the future – people who will be convicted on the testimony of anonymous witnesses. The criminal justice system should accurately separate out the guilty from the innocent. Stacking the odds against some defendants is going to increase the number of wrongful convictions.

Tuesday, 17 March 2009

The Incest Monster

How a defendant accused of serious crimes is treated at court reflects the basic moral principles of a society. There are two important aspects of the trial of Josef Fritzl in Austria – its transparency and its fairness. Both of these principles are tested to the limit.

The reporters in the Fritzl trial can only stay for part of the proceedings. The court provides edited extracts from the case at the end of each day. As a result, the public cannot find out exactly what happened in that dark dungeon, except as disclosed by the court. There appear to be two reasons for restricting the journalistic reporting from the court. Firstly, his grandchildren have to be protected from public intrusion. Secondly, the court did not want the trial to turn into an exercise in voyeurism. Whilst these concerns are understandable, there are other solutions which do less damage to justice. The children involved have already been given new identities. It is not the trial alone which brought them publicity. The fear about voyeurism is misplaced – the issues raised by the case are of wider public concern both nationally and internationally. The press reporting is not so much salacious as horrified.

The story of incestuous family incarceration is so shocking that any civilised society needs to ensure that it cannot happen again. The trial is of only one man, but the public will be concerned about the role that the authorities may have played. The perception is that Austrian society still has too many institutions that cannot be questioned. What were social services doing? Surely it was implausible that so many babies could appear from a daughter who has run away? Maybe the authorities do have something to hide. The best way of counteracting this perception is to bring all the facts into the open. Furthermore, the public needs to understand how a determined and devious character like this can develop. It is essential to get the full story from the protagonists – the defendant and the victim (“victim” rather than “alleged victim” because Fritzl has pleaded guilty to most counts). There is no substitute for their own words.

Fritzl is termed the “Incest Monster” by the Austrian press. Whether this description prejudices the outcome is unlikely since the judge will have seen the material beforehand in a less emotional setting. It is perhaps easier for a professional judge to deal with this media claims than it is for lay members of a jury. Meanwhile, throughout this process, the defence attorney has complained that he has been vilified for representing Fritzl and threats have been made to his life. His public appeal to treat Fritzl as a man and not as a monster has fallen on deaf ears. Fritzl is a man who acted as a conventional father for his upstairs family whilst treating his dungeon family despicably. He has not tried to evade conviction by claiming mental illness. The hardest thing to accept is that Fritzl is a man not a monster, albeit a man of moral contradictions.

Monday, 16 March 2009

Age of Stupid

The independent documentary film, the Age of Stupid, is about climate change and how our developed societies allowed the planet to be ruined in a period of collective stupidity. It follows a number of individuals in different parts of the world - USA, England, France, Nigeria and India - and shows their responses in intimate profiles. A narrator from the future reflects upon clear warning signs and contrasts these with the plausible deniability of the consequences of unbridled carbon fuel burning.

The film’s director, Franny Armstrong, has developed a reputation for her radical approach to political subject matter including the story of McLibel, the longest trial in British history which started when the fast food chain sued some leafletters. Her latest film does not disappoint in this respect. It raises awareness of a wide range of environmental issues and placing these in a personal context, the film is a powerful refresher on what is at stake.

Where the film fails to convince is in finding remedies. There is a presumption that a sustainable future will be low-carbon, with non-nuclear renewables making up the majority of power generation. We are shown beautiful vistas of the Alps as well as the rolling Cornish countryside. This is presumably before these areas are covered in windfarms and solar panels.

The reality is that too many countries want to bring their populations out of poverty before being prepared to compromise on economic growth. Furthermore, the richest country of all, and the most wasteful of energy, the USA, is never going to accept a reduction in living standards so that India and China can catch up. Carbon rationing will only become a political reality when people can see the effects directly for themselves. The problem is that by the time this point is reached, it is too late to save the world from runaway warming. The conventional economic mechanisms simply do not work to reverse the climate detriment.

Using up the earth’s resources is foolish given the rapid rise in the global population and the growth in consumption per head. This goes to demonstrate that mankind does have a collective suicide urge - which happens to be the subject of Armstrong’s university thesis when she studied zoology at UCL. Are we all to die like the doomed Easter Islanders?

I remain optimistic that a tradable personal carbon allowance can serve as the basis for a solution. Each person would receive say 1000 energy units a month (kilojewels?). They can use these all up on buying energy for themselves or they can sell them to someone else who places more value on them. Ultimately carbon is rationed but those who place more value per unit can trade with those who place less value to their mutual benefit. Maybe people are not so stupid after all.

Thursday, 12 March 2009

Unblock open justice

Proceedings in family courts are not open to the public. Most people would agree that any children involved should be protected from unwarranted publicity. Yet there is a problem if the decisions made by judges never reach the public domain. Judges need to be accountable for their decisions, particularly as the lives of children and their parents or carers may be changed forever. The public needs to have confidence in the way the family courts operate. A major breakthrough was announced recently when the Justice Minister, Jack Straw, confirmed that the media will be allowed to attend and report on family proceedings. This mirrors what happens already in the youth courts which deal with criminal offences. There remains considerable judicial discretion regarding the implementation of this arrangement which gives rise to uncertainty by those affected.

The new approach allows the courts to explain and publicise their decisions, but the reporting must be in such a way that the children involved are not identified. There is some doubt as to whether this new formulation is actually an improvement. With one breath the Minister said that more information would be available from the courts. With the next breath, he said that the landmark Court of Appeal case Clayton v Clayton was to be overridden by new legislation. This is important for it goes to the heart of what we mean by open justice.

The Clayton case enabled parents to make the proceedings public after the case is over. This is not a tricky situation where one side is using the press to influence the decision maker. The publicity makes no difference to the outcome of the case. What it can do, however, is draw attention, possibly adversely, to the judicial process and the judges themselves. This is clearly over-protective. If the judges are confident that they have made the right decision they should not have to fear public scrutiny.

It is rather unusual for a Court of Appeal judgement to be reversed by new legislation. The argument given is that the “welfare jurisdiction” of the court continues after the case is concluded. This is a dubious basis upon which to impose restrictions on freedom of speech. The vast majority of concluded cases never return to court, so the claim of ownership is excessive. It is not as if the children are wards of court. They are the responsibility of their parents or carers, not of the courts.

There is a prohibition on releasing any information which may identify a child subject to proceedings. This is quite a severe restriction if it is to be interpreted strictly. Nowadays it is possible to track down the names and details of most people and their children. The internet is a rich source of information: social networking, person search, company, school, genealogy, local news etc. Hardly anybody is anonymous anymore, least of all communication-hooked teenagers. Add to that the ability to contact “friends” and neighbours and names will be revealed.

There is another way of protecting identity without damaging transparency. Rather than trying to limit the information pipe at source, unblock it and let it flow. The media would actually only be interested in the celebrities or the rare “human interest” story. Complaints and grievances from disgruntled court users hardly ever get aired in the media. If the media go too far beyond the public interest, then they will have to face actions for breach of privacy.

Monday, 9 March 2009

Presumption of Guilt

Our criminal justice system achieves a very high conviction rate. Magistrates courts deal with around 1.75 million defendants a year. Only 10% of these are contested. The prosecutors have got better at weeding out the cases for which they are unlikely to secure a conviction. The overall conviction rate is so high (c.99%) that the Ministry of Justice does not publish it in the court statistics. In the Crown Courts, where the more serious cases are heard, over two-thirds of defendants plead guilty. However, of those that plead not guilty, 61% are acquitted.

Those who want to be tougher on crime can point to the increasing number of convictions. The police would say that they have no interest in taking an innocent person to court. They act on the presumption of guilt. Those who favour the importance of human rights can point to the high acquittal rate. They are activated by the presumption of innocence. The presumption of guilt is compatible with the presumption of innocence because they are held by different institutions: prosecutors and courts respectively. The presumption of innocence is a legal device whereby the burden of proof is placed on the prosecution.

The DNA database is said to undermine our civil liberties. However, it is not apparent that it strengthens the presumption of guilt. There will be more convictions since more perpetrators of crime may be detected. There will also be more acquittals since DNA is capable of absolving the accused as well as providing compelling evidence for the prosecution.

More pressingly, the presumption of innocence can be eroded prior to the trial if the evidence is gathered unfairly, thus undermining the requirement for a fair trial. Investigators can take short cuts or break the rules. The rules of evidence are notoriously complex in common law countries like the UK and USA. Defendants should only be left to represent themselves in the most straightforward and minor of cases. Where liberty or livelihood is as stake, then a professional defence is essential. For those who are unable to pay for their defence, which is most people before the courts, adequately funded legal aid is essential.

The problem is that those who set the budget for legal aid are influenced by those who see the criminal justice system as a kind of conveyor belt driven by performance targets. It may only be when we get too many miscarriages of justice that there will be any political change of heart.

About Me

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Kingston-upon-Thames, United Kingdom
I am a barrister and work to assist people accused of serious crimes. I've had a varied career. I wrote a thesis on nuclear waste disposal; worked as corporate planner for an energy multinational; priced crude oil for Saudi Arabia; advised Denmark on gas; launched an oil trading software company in the USA; established the UK’s first electricity trading operation; advised Norway on hydro-electricity; managed the media team at PwC; analysed equities for JP Morgan; advised the European Commission on broadcasting policy; wrote a book on television in Europe; founded a strategy boutique in digital media; chaired a father’s group, speakers club and chess club; edited a community magazine and wrote a thesis on the media in China. I studied philosophy, politics and economics at Balliol College, Oxford. Subsequently I studied operational research (Lancaster), psychology (London) and law (Kingston). My ambition is to find a way to make childrens’ learning of mathematics enjoyable.

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