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Saturday, 11 December 2010

Bad Law, or there can be two sides to a story

During the last week two legal stories emerged, both of which sound terrible, and in respect of each there was much frantic and horrified social media activity.

The first was the predicament of Stephen Neary, which was raised powerfully on the blog of the highly-regarded Anna Raccoon.

Quite quickly after she posted there were dozens of invitations to support the campaign to release Stephen Neary and to publicise the situation.

But what concerned me, even as someone ready to call out abuses of power, was that the information provided was one-sided. Although it is clearly a case which prompts serious attention, it also remained one where further information would be needed before reacting with passion and trumpeting a cause.

Even the two excellent legal bloggers Charon QC and Obiter J who have so far covered this have had to be cautious. Charon QC is alarmed but he carefully notes that he has had to rely on one version of events, whilst Obiter J only goes so far to say attention should be drawn to "the case which appears to be extremely unsatisfactory" (emphasis added).

This caution is completely right.

There is nothing wrong whatsoever with campaigners emphasising perceived injustices (I do it myself) and there is nothing exceptional in having to base a piece only on the information available (I do this as well). But it is important also for those whose attention is sought and obtained by such stories to realise that there can be other sides to a startling matter and that the information provided can be incomplete.

Sometimes getting further information can make apparent injustices seem even worse. For example, it was only when the CPS were probed about why they were using the section 127 offence that the scale of the injustice, based on (in my view) a unacceptable misunderstanding of the applicable law, became apparent.

Alternatively, closer examination of a story makes the media version of a story seem simplistic and sometimes misleading. To my mind, this is what happened when this blog (especially its commenters) looked at the cases of Paul Clarke (the shotgun case) and Gary McKinnon.


And so when another "Bad Law" story (a story which is explicable by either the misuse of law or the misrepresentation of a legally-related matter) appeared yesterday about a 12-year old visited at a school by a police officer in respect of a planned demonstration, my instinctive reaction again was caution.

The report is in the Guardian and has already had an excellent and largely-balanced blogpost by Late for a Lawschool.

What struck me was that the emotive force of the story was based mainly on taking the boy's reported account at face value and disregarding the police explanation. This is not to call the boy a potential liar, for there are many reasons why such a source may need corraboration or simple checking that he was quoted properly.

If the police visit was by an appointed schools officer, and if the conversation took place before a senior member of teaching staff in accordance to the police account, then there perhaps is little to get too upset about. In some ways, such a pro-active police approach to a planned demonstration is preferable to no prior police involvement at all. I don't even see the need for a parent to be present if the police account is correct that this was an appointed schools officer giving merely the advisory talk as described.

I am always quite ready to take a hostile view of police conduct, and I even believe that certain police misconduct is systemic, but even the police are not always in the wrong on every matter.

In the case of this particular school visit, it obviously went rather badly and the reaction of the child and the mother is emphatic. But here are two versions to what happened and unless the head of year also present gives an account of the conversation, there is the plausible possibility that the police version may indeed be correct.


The law can be an ass, and it often is.

But legal matters can also be misreported and misunderstood.

So should they be ignored?

No. But such stories call for a critical rather than a quietist response: to look at the sources used and what their limitations may be before yelping "what the fuck" and shaking ones head in disgust.

For, just as Ben Goldacre and the Bad Science bloggers have repeatedly shown with sensationalist misreporting and misrepresentations of science matters, in "Bad Law" stories "it may be a bit more complicated than that".


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9 comments:

Hum_Con said...

In the Guardian case I'm not convinced that the two accounts contradict one another. The Police accounts states the facts, the account of the 12 year old is that he was intimidated by this.

Whilst there are some 12 year olds who would not be the least bit troubled by a visit from the police, I know plenty who would find it pretty intimidating in and of itself. Putting the head of year, another authority figure, in the room could be more intimidating not less.

Personally, I am inclined to be sympathetic to the Mother's belief that at least some attempt to contact her should have been made.

Laz said...

I absolutely do not accept that police should be visiting a 12 year old's school to 'give advice' in the absence of a parent. If the police were prepared to travel to see the boy then it should have been to his home, not his school. This was not an emergency situation. That they chose to speak to him away from his parents was clearly intended to intimidate him.

Mr Northice said...

Is it a question of balance? The Neary post information was/ is indeed one-sided and none except his father could presume to speak for Stephen Yet the voice of the individual in post-16 care is so often ignored that it is compelling to make a noise, purely as an attempt to scrutinise the process.

The probability of the individual in care being fairly represented is closer to 0 than 1 (cue some self-satisfied, half-assed comment about it being called a Deprivation of Liberty order for a reason) and despite improvements post-Care (sic) In The Community, patient advocacy is still a weak area.

I'm still trying to find out the other side and will continue to do so. Equally, it would be useful to try and find out answers to those questions which have not been fully acknowledged.

Perhaps it's being a euphonium player; I never can manage to trumpet things correctly...

twaza (@wassabeee on twitter) said...

Thanks very much for a very clear explanation of why we need to keep our bullshit detection antennae permanently turned on, particularly when our sympathy is evoked and our ire is provoked.

Steve said...

David,
I think that whilst we have to be cautious over the Stephen Neary case, we have to note that this is not a legal case. What we have is the testimony of Stephen Neary's father and his attempt to get his son back from what he thought was respite care. Unless there is good evidence that Mark Neary can't look after his son (with the assistance he is getting), then this looks like somebody caught in the machinery of State care.

As for getting the other side, do you really think that we are going to get that? This sort of case is covered by patient confidentiality and you can make a very confident bet that full facts will not be volunteered. It's these sort of closed cases where there is no transparency.

There are quite a lot of state operations - like family courts - where the decisions and deliberations are closed. What makes you think this will be any different? You can bet the professionals involved are not going to justify their actions cloaked, as they are, in this issue of confidentiality.

Peter in Dundee said...

Sorry Jack but you and I are going to have disagree rather strongly over your throwaway last paragraph dissing Ben Goldacre. You non science types and us are certainly capable of talking past each other but a blog about Bad Science is entitled to comment on the area.

Since Ben has been a victim of a celebrated case of libel tourism colliding with press freedom he is also entitled to throw his opinion behind others who find themselves in the same situation without the legal fraternity getting all snippy about demarcation issues.

Also bear in mind that pious legal ho hum about how the libel laws are really just fine and don't need more than a little tweak are fairly hard to take when decades of scientific freedom, and solemn responsibility to speak out is being eroded and people are running scared. Not enough is changing nowhere near fast enough.

As for Stephen Neary I am appalled that just because someone in a vulnerable state is over the age of 18 it should not mean that their relatives are completely sidelined and the act being used does seem to be doing that.

ObiterJ said...

David (aka JofK) - many thanks for the mention. This case is very interesting to me and the law involved particularly so but we have to be careful. We have not seen any of the "other side" evidence.

@djhanks said...

Thames Valley Police have now apologised for questioning Nicky Wishart without his parents being there. http://bit.ly/hIBXPr

So far as I know the police have not yet disputed any of the claims made about what was said to Nicky.

DeanC said...

@Peter in Dundee: I think Science and Law may again be talking past each other, in this case you and JoK. I can't see how you inferred malice or disrespect of Ben into the final paragraph. Unless I totally missed JoK's point, I think he was complimenting the Bad Science dictum about complexity hidden by simplicity. Looks instead like he was suggesting that more amateur legal commentators should follow the lead of the Bad Science fraternity rather than just assume that all info is inherently true and accurate. I think you may have dragged an insult from the jaws of a compliment...