Wednesday, 30 December 2009

The Injustice Done To Paul Clarke

Paul Clarke, who was prosecuted for possession of a shotgun, received a suspended sentence.

The judge found there were exceptional circumstances.

The consequence was that Paul Clarke walked free from court.

Following on from my blogpost Paul Clarke: An Anatomy of an Injustice, I want to here explain why this outcome, whilst welcome, means that this case remains an injustice.

Justice should of course be an essential quality of the judicial process as a whole.

In that way, the exercise of the judge's discretion to find exceptional circumstances meant - perhaps - that the process as a whole had worked.

However, when a case involves the double jeopardy of a strict liability offence and a mandatory minimum sentence, then there should be anxious scrutiny of decision-making earlier in the process: namely the decision by the police to charge and the decision of the CPS to prosecute.

The finding by the judge of exceptional circumstances necessarily throws into question the soundness of these two crucial decisions. The police decision to charge appears to me to be incompatible with the relevant home office guidance; the decision of the CPS that it was in the public interest to prosecute appears to me inconsistent with the only version of facts before them: the evidence of Mr Clarke.

It is not enough for such decision-makers to pass ultimate responsibility to a court in circumstances such as that of Mr Clarke. Their administrative decisions had the real effect of someone facing a five year sentence, unless a court somehow found exceptional circumstances.

In particular, it is, in my view, wholly inappropriate for such administrative decisions to be made to charge and prosecute when the "exceptional circumstances" before the court were also before the police and CPS.

When deploying the coercive power of criminal sanctions, justice requires that each stage in a criminal prosecution should also be as just as possible - and not only the process as a whole.

In my opinion, this did not happen in the Paul Clarke case, and that is the injustice done to Mr Clarke.

By way of footnote: a lot of further information and allegations, some scurrilous and scandalous, is now available on this case. Even when I wrote the Anatomy blogpost I had been supplied with unsourced information, mostly discrediting either to Mr Clarke or to the police officers. However, as an exercise in evidence and source based legal reporting, I preferred to concentrate on the official decision-making process.


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Friday, 25 December 2009

An Atheist Looks At Christmas

As an atheist, I am sometimes asked by Christians how I can celebrate and legitimately enjoy the Christmas holiday.

However, I think this challenge is be misconceived.

Christmas has little, if anything, to do with Christianity - even if Jesus was indeed Christ.

So familiar is the imagery of the holy birth in Bethlehem that it is astonishing to realise how unimportant it is both in the New Testament and to the early church.

There are two nativity stories for Jesus of Nazareth contained in the Gospels. One is in Luke, the other is in Matthew.

Neither Luke nor Matthew mention their nativity story again.

There is no nativity story at all in Mark, usually regarded as the earliest Gospel, nor in John, the most theologically-developed of the Gospels, always anxious to assert the divinity of Jesus.

There is no mention of or reference to the nativity stories anywhere else in the New Testament.

Paul and other letter writers, writing independently of and largely before the Gospel accounts, simply do not mention the virgin birth, the star, or the attendant angels.

If it were not for the nativity stories placed at the start of Luke and Matthew, it would appear that early Christians either were unaware of the divine birth of Jesus of Nazareth or did not think it of any importance.

It certainly did not matter to them when seeking to emphasise or persuade others of the divinity of Jesus: the baptism (which both Mark and John commence with) and the resurrection (central to Paul's teachings), as well as the recorded miracles, constituted sufficient evidence of the "Christ" status of Jesus.

Many biblical scholars explain the absence of any reference to the nativity stories in the New Testament (other than at the start of Luke and Matthew) by suggesting that both stories were later insertions.

The two stories sought to show, for doctrinal reasons, how someone from Nazareth was actually born (according to prophecy) in Bethlehem. Given the distance of Bethlehem from Nazareth, and that Jesus was widely known to have been a Nazarene, this would require quite an explanation.

And because the nativity stories were later insertions, they are easily caught out.

Luke's nativity story is especially open to attack, as it purports to rest its account on verifiable historical events and practices.

Fisking Luke

I will now "Fisk" the start of Luke's nativity story. So that I cannot be accused of favouring just one translation, I now set out the first five verses of the second chapter of Luke in three different translations, accompanied with my comments.

Verse One

KJV (1611)
And it came to pass in those days, that there went out a decree from Caesar Augustus, that all the world should be taxed.

NIV (1973-1978)
In those days Caesar Augustus issued a decree that a census should be taken of the entire Roman world.

NRSV (1989)
In those days a decree went out from Emperor Augustus that all the world should be registered.

There is no historical basis whatsoever for this decree from Augustus.

Furthermore, as we have records from the Roman imperial state from the time, we would know of any decree had one been issued. It is thereby safe to say that this is an entirely false statement.

It may be that Luke mistook this decree for one of Quirinius dating from 6AD onwards. Even so, the mention of Augustus would be false and the birth of Jesus would be too late for the other Gospel narratives.

Of course, once this decree is removed from the story then the rest of Luke's account becomes meaningless.

Verse Two

(And this taxing was first made when Cyrenius was governor of Syria.)

(This was the first census that took place while Quirinius was governor of Syria.)

This was the first registration and was taken while Quirinius was governor of Syria.

Quirinius was indeed Governor of Syria, from around 6AD. (This date coincidentally places him ten years after the death of Herod, who is of course rather important in Matthew’s nativity and infanticide story.)

Verse Three

And all went to be taxed, every one into his own city.

And everyone went to his own town to register.

All went to their own towns to be registered.

Even if there were a tax decree, or a census, and even if Bethlehem had been subject to Roman imperial jurisdiction before 6AD, the Roman principles of taxation and census-taking would have meant that Joseph would be taxed on property he held, not on the basis of remote genealogy.

So, if Joseph held his property in Nazareth and none in Bethlehem, then he would not have needed to have travelled to anywhere else.

Verse Four

And Joseph also went up from Galilee, out of the city of Nazareth, into Judea, unto the city of David, which is called Bethlehem; (because he was of the house and lineage of David:)

Joseph also went from the town of Nazareth in Galilee to Judea, to the city of David called Bethlehem, because he was descended from the house and family of David.

So Joseph also went up from the town of Nazareth in Galilee to Judea, to Bethlehem the town of David, because he belonged to the house and line of David.

Nazareth was an obscure village in Galilee. (It is not mentioned in the Old Testament.) Bethlehem is in the separate province of Judea. Significantly it did not even come under Quirinius’s jurisdiction (and thereby Roman imperial jurisdiction) until after around 6AD.

The prophecy being fulfilled is that in Micah 5:2:

But thou, Bethlehem Ephratah, though thou be little among the thousands of Judah, yet out of thee shall he come forth unto me that is to be ruler in Israel; whose goings forth have been from of old, from everlasting. (KJV)

In my view, Luke (Nazareth to Bethlehem, Census, Manger, Angels, Shepherds) and Matthew (Bethlehem to begin with, Star, Magi, Herod, Infanticide (also not historically evidenced, which it would have been), flight to Egypt, settling in Nazareth) are best regarded as two separate and distinct attempts to account for how Jesus was born in Bethlehem but brought up in Nazareth.

Verse Five

To be taxed with Mary his espoused wife, being great with child.

He went to be registered with Mary, to whom he was engaged and who was expecting a child.

He went there to register with Mary, who was pledged to be married to him and was expecting a child.

Even if there had been a decree, or any census or registration whatsoever, and Bethlehem had somehow been temporarily shifted into the Roman Empire for the holiday period, Joseph as householder would presumably have been competent and capable to have answered on behalf of his household. He could have gone down to Bethlehem by himself whilst Mary gave birth in Nazareth.

In other words, even if Luke was otherwise correct, there was no reason for a heavily pregnant Mary to travel on a donkey the long distance to Bethlehem for Jesus to be born there according to prophecy.

The Implications

The implications of the nativity stories being later insertions - narratives fabricated or developed to fullfil an ancient prophecy - are profound and, for an atheist, rather intriguing.

For example, the Virgin birth and the Marian cult more generally, both so central to the Catholic and other traditions, become null and void.

There is no reliable textual basis for either phenomenon, notwithstanding the centuries of teaching and dogmatic assertions.

And if this is the case, then many great works of art, however uplifting and inspiring - from the Renaissance Virigins and Child to Part I of Handel's Messiah - have no ultimate divine basis.

These works of art were just human creations all along.

And, for me, there is a similar implication for the modern celebration of Christmas.

The institution of Christmas is a human creation, pulling on many sources; it ultimately has as much to do with Christianity as Thursday has to do with Thor, or March to do with Mars. It just shares a (for some) hallowed name.

Some of the most uplifting elements of this modern celebration - like A Christmas Carol and A Fairytale of New York - have no expressly Christian content. And this is also true of almost all the usual paraphernalia, from Christmas decorations to turkey dinners.

My suggestion is that by celebrating Christmas one is really celebrating what humans are capable of creating for themselves.

And so I sometimes ask Christians that given the (literally) incredible and (for the New Testament and early church) irrelevant nature of the nativity stories, how can they also celebrate and legitimately enjoy the Christmas holiday?

Not that I mind, of course: after all it is the season of goodwill to all men and women, including Christians.

Happy Christmas!

Saturday, 19 December 2009

"The Ladybird Book of Chiropractic Treatment & English Libel Law"

One of the real highlights of the last year has been the emergence of my friend and fellow Skeptic Crispian Jago as a blogger and satirist of genius.

And today he has done it again: do go over to his site now and enjoy The Ladybird Book of Chiropractic Treatment & English Libel Law.

Friday, 11 December 2009

BCA v Singh: Making Legal History

The case of British Chiropractic Association against Simon Singh is now likely to make legal history.

The news broke today that the Court of Appeal panel hearing the appeal of the preliminary hearing on meaning will be joined by the Lord Chief Justice.

The panel will now consist of England's two most senior appeal judges - the Lord Chief Justice and the Master of the Rolls - as well as the formidable Lord Justice Sedley.

This is exceptional and, as far as I am aware, unprecedented for an appeal on just a preliminary point, rather than on a full substantive appeal of a decided case.

This is the heavy artillery of the judiciary.

This panel means that any judgment of the Court of Appeal could have immense effect on the future approach of the High Court to the question of what constitutes fair comment or a factual statement, and it may give firm guidance the extent to which the High Court can again impose a meaning of dishonesty either generally or against corporations in particular.

The Court of Appeal may not take this opportunity to adopt a robust approach, but having the two very most senior appeal judges on one panel rather tells against this. The composition of the panel does not by itself tell us how the appeal will be decided, just the potential significance of the judgment on future cases.

It is thereby probable that this Court of Appeal hearing on BCA v Singh will become a landmark case.

Moreover, should such a panel choose to criticise either party, or indeed the High Court itself, the effect could be damning.

It is becoming very interesting.

And, amusingly, the Lord Chief Justice is called Lord Judge - and you will remember that the permission to appeal was given by Lord Justice Laws...


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Wednesday, 9 December 2009

Engaging With Libel Reform

The formal campaign was launched today for fundamental reform of English libel law.

England's libel law is currently a public danger and a public disgrace.

It is a public danger because there are debates about a range of important matters - about public health and public safety, about the financing of terrorism and the soundness of banks, about the conduct of powerful international corporations and the conduct of identifiable public officials, especially police officers - which are not taking place or are distorted because of libel chill.

And it is a public disgrace, rightly earning international derision and hostility. England may become the only Western country where one cannot buy editions of US papers; and media companies in many countries are reported to be contemplating simply pulling English language web editions.

There is something very wrong with English libel law; and the campaign launched today is a serious, highly-practical, and determined movement for change.

If the campaign is successful, there can be legislative reform in the new Parliament following the next General Election (probably in May or June 2010); if not in the first session (2010-11), then in the second (2011-12).

To ensure the best possible Defamation Act 2011 or 2012, it is important not just for you to support this campaign today or tomorrow, but for you to engage with it on an ongoing basis.

It will be a legal reform process which you can participate in.

If you are a UK voter, you should demand of the candidates in your parliamentary constituency that they address libel reform as an issue.

But even now, before the election is called, you should demand of your sitting MP that they read the fine report on libel reform by Index on Censorship and English PEN. The details of your MP and how to contact them are here.

And after the election the hard work begins.

Legislative reform is not easy.

There has to be an exercise of identifying the best proposals to deal with the many current libel abuses.

And there will be a further painstaking law-making process - undertaken mainly, but not exclusively, by civil servants, lawyers, and politicians - of ensuring that the most appropriate legislation is then passed.

All this will be in the full glare of the internet, and that is an opportunity for you to engage - to monitor and influence.

This Blog will follow and detail this reform process, just it has done with various legal cases; and there will be many other Blogs, as well as the Libel Reform campaign website.

The government department responsible for any new legislation (probably the Ministry of Justice) will also have a formal webpage on the progress of any new legislation.

And once the legislation is proposed, the there will be a special site on the parliamentary website; it may well be that the standing committee debates will also be televised and streamed on the internet, allowing further public involvement.

Your views and concerns can be directly communicated to all the law-makers for them to consider and respond.

There can be a wiki element to this particular legislative process.

With our ongoing and informed scrutiny there is a greater likelihood that any new legislation will prevent important public debates from being undermined by libel chill.

In my view, this will be an exciting process for us all to follow on the internet, via both good official sources and the Blogosphere.

So please do support and then engage fully with the Libel Reform campaign: not just for now, but for as long as it takes for the law to be properly changed.

Thank you.

Saturday, 5 December 2009

In Praise of George Monbiot

One feature of partisanship is the closing of ranks when one of your own is attacked: in this way tribalism becomes a form of mutual protection.

In this respect, and as a newcomer to the controversy on climate change and global warming, I have been greatly impressed and heartened by one article in particular by George Monbiot.

In his Guardian piece Pretending the climate email leak isn't a crisis won't make it go away, Monbiot decided not to take the course of offering reassurances, or making arrogant statements that laypeople cannot understand the science, or attempting to down play it all as some inconsequential teacup storm.

Some seem to regard Monbiot as having over-reacted, as his trenchant article is not easily reconcilable with an instant urge to say nothing is actually wrong there. Others seem concerned that Monbiot's reaction may be playing into the hands of the "denialists" and "sceptics".

In my view, Monbiot's approach was refreshing and engaging.

For, as an onlooker and layperson, it was for me the best thing that Monbiot could have said.

By taking the apparant scandal with utmost seriousness, and by saying that not everything done for a good cause is always defensible, Monbiot at a stroke made me feel far more confident about anything he says on any other environmental subject.

And, it must be said, I am yet to come across similar intellectual honesty and self-criticism from those opposed to the theory of human-caused global warming.

Without such evident openness and integrity, the charge of partisanship is always difficult to counter.

In a way similar to Monbiot, Ben Goldacre's critique of the "dodginess of drug company trials" renders him with credibility when attacking complementary and alternative medicine (CAM) for their dodginess: a credibility which is simply missing from almost all CAM enthusiasts in turn attacking mainstream medicine.

It is painful when someone on your "side" seems to be under attack; the greater good may seem to require that the victim be protected, the attackers countered, and the attacks discounted.

But such manifestations of partisanship and tribal loyalty do not necessarily assist in public engagement. Instead, I believe exhibitions of integrity and consistency will probably have a wider and more persuasive effect.

This does not mean that the climate scientists caught up in this alleged scandal should all now be hung out and dried; but it does mean that the first and best response to the attacks is to investigate the apparent misconduct fairly and transparently.

And it looks like Intergovernmental Panel on Climate Change (IPCC) will do this.

Dr Rajendra Pachauri, the chair of the IPCC, is quoted as saying, "We certainly don't want to brush anything under the carpet. This is a serious issue and we will look into it in detail".

Much the best way forward.

From now on, please see my new Blog, Jack's Climate Quest, which will be devoted to my attempts as a layperson to make sense of the global warming and climate change debates.

Tuesday, 1 December 2009

BCA v Singh: Composition of the Court of Appeal

It appears that the Court of Appeal is assembling a very powerful panel indeed to hear the appeal by Simon Singh of the adverse ruling on meaning by the High Court.

(Please note that Court composition is subject to change up to the day of the hearing - likely to be 22 February 2010 - but my information has today been confirmed by the Court of Appeal.)

The Court will be presided over by no less than the Master of the Rolls, Lord Neuberger, the most senior of all the civil appeals judges and indeed former Law Lord.

Significantly, he will be joined by Sir Stephen Sedley, the Court of Appeal judge whose liberal and intellectual reputation is equal to that of Sir John Laws, the appeal judge who granted Simon Singh permission to appeal. (Famously, Sir Stephen is a former communist party member who has listed "changing the world" as his recreation in Who's Who.)

The third judge will be Dame Mary Arden, the highly-regarded former Chair of the Law Commission, the body charged with proposing fundamental law reform.

This would be what lawyers call a "strong" Court of Appeal - indeed it is difficult to think of one stronger - especially for an appeal on what is a preliminary issue, rather than a full substantive appeal.

Any guidance given by such a strong Court of Appeal on what constitutes fair comment and justification in libel (or indeed any other issue) is be likely to have a great impact on the future approach of the High Court.

This is no indication as to what the outcome of appeal will be: Simon Singh can still lose. But it is entirely possible that their judgment will become a leading case whatever the result.

My opinion - and it is only a personal opinion and so could well be wrong - is that the terms of the permission ruling by Sir John Laws (see the case report and my commentary here) make it unlikely that the British Chiropractic Association will repeat their success in the High Court, at least to the extent that Simon Singh will have to show that the BCA were knowingly dishonest.

If this does turn out to be the composition of the Court of Appeal then, more than before, it makes the appeal hearing all the more interesting...