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Monday, 31 May 2010

Birmingham Skeptics

This is a copy of my fun blogpost at the great new Birmingham Skeptics website. If you are in the midlands, then do go along to their meetings.


Birmingham has a great tradition of free thought.

It has always had a certain anarchic quality.

Spilling over three counties for much of its history, it was free from any coherent local government. Until the mid 1800s Birmingham made do with statutory "Street Commissioners".

And when it was granted borough status, the townspeople were less than enthusiastic. Indeed, the local council met most regularly not at some grand public building, but at a public house.

Such nonchalance was not really sustainable as Birmingham grew into the second city of the United Kingdom, and in the 1870s Joseph Chamberlain's flair for self-promotion meant that Birmingham appeared suddenly to be the best governed town in the country.

In fact, it was only catching up with other industrial towns.

But Birmingham was always more of market town than an industrial town, though it was one where small businesses could easily set up. Before the Cadburys there was really little large scale factory production.

And matched with this commercial freedom was intellectual freedom. The local Anglican church was weak. The town attracted freethinkers and non-conformists.

Most notably, it was the home of the Lunar Society, a group of the pre-eminent intellectuals of the day. They met once a month, and were known to some as the Lunatics.

Now there are the Birmingham Skeptics. They too meet once a month, like the Lunar Society; and they also meet in a pub, like those sensible mid-Victorian councillors. So in these ways, at least, they are fully within the liberal and libertine traditions of Britain's greatest city.

But they are more than a parochial discussion group. Birmingham Skeptics are part of a worldwide movement of skeptics groups, from Perth to Boston.

For Skepticism is effortlessly internationalist.

And so is Birmingham.

It manufactured goods for the world for nearly two hundred years, and over the last fifty years it has in turn thrived because of immigration and cultural diversity.

Birmingham Skeptics will have a natural role in the forward movement of the city.

So the foundation of Birmingham Skeptics is a welcome move.

Skepticism is coming home.



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Sunday, 30 May 2010

A Skeptic Looks at the McKinnon Case: Part One

This is the first of a series of blogposts looking at the well-known and controversial case of Gary McKinnon.

What interests me about this particular case is the fundamental mismatch between, on one hand, the passionate campaign in his support and, on the other other, the continued upholding of the decision to extradite by the Home Office and the English court system.

This mismatch made me wonder whether either the campaign or the upholding of the decision is misconceived.

In other words, and in accordance with the subtitle of this blog (see above):

Is the legal position being misrepresented?

Or is there a misuse of law?


It would appear that the McKinnon campaign have succeeded in promoting a widely-held view that this case is a miscarriage of justice.

There may be those whose opinions on the McKinnon case are so strongly held (one way or the other) that they see no point for this blog to examine the case in a source-based and skeptical manner; if so, they are welcome to scroll down to the comments box to now type away and, subject to the comments moderation policy, their comment will be published.


However, for those who want to base their opinions - especially very strongly held opinions - on sources, then I set out below the first part of my examination of the McKinnon case.

This is culled from a far-longer piece I am writing, but it became too unwieldy for a single post.

This first part sets out the procedural history of the case and the actual allegations which the US government are making against Mr McKinnon.

(For your information, I personally oppose the extradition for reasons which will give in the last part of my examination of this case.)



The Procedural History

The alleged criminal activity of Mr McKinnon took place over thirteen months, from February 2001 to March 2002.

He was interviewed under caution and his computers seized on 19 March 2002, and he was again interviewed under caution on 8 August 2002.

In November 2002, the East Virginian US District Court charged this Indictment (which should be read in full by anyone interested in this case). The New Jersey US District Court also charged this Indictment

As to what happened next, until May 2006, para 21 of the first High Court judgment here sets out the US explanation.

(Of particular note here are the plea bargain negotiations of April 2003 to June 2003, on which more in the second part.)

On 10 May 2006 (after it appears a year of adjournments), Bow Street Magistrates' Court acceded to an application made on behalf of the Government of the US government and sent Mr McKinnon's case to the Home Secretary for a decision as to whether or not Mr McKinnon should be extradited. The decision to proceed with the extradition was made by the Home Secretary on 4 July 2006.

On 13 and 14 February 2007, the High Court heard Mr McKinnon's appeals of the decisions of the District Court and the Home Secretary on the basis of a wide range of human rights and abuse of process arguments.

On 3 April 2007, the High Court in a reasoned judgment dismissed the appeals: read the judgment here.

On 16 June 2008, the House of Lords heard Mr McKinnon's appeal of the High Court decision. In a unanimous and reasoned judgment given on 30 July 2008, the House of Lords dismissed the appeal: read the judgment here.

(On 28 August 2008, the European Court of Human Rights refused Mr McKinnon's application for "interim measures" so as to stay the extradition.)

Within four weeks of the House of Lords decision, Mr McKinnon was diagnosed as suffering from Asperger's syndrome. There is no reason to doubt this diagnosis, and such late diagnoses are not uncommon.

This diagnosis enabled Mr McKinnon to have a new legal basis to challenge the extradition decision.

The Home Secretary was asked to reconsider the extradition decision, but the decision was made to continue with the extradition on 13 October 2008.

Permission to apply for "judicial review" of this new extradition decision was granted on 23 January 2009, but the substantive application for judicial review was refused by the High Court on 31 July 2009, and an application to appeal that refusal was also refused on 8 October 2009.

So, in summary, other than obtaining permission to apply for judicial review, Mr McKinnon's case has not succeeded before the Magistrates' Court, the Secretary of State, the High Court, the House of Lords, the Secretary of State (again), and the High Court (again).

And, other than obtaining permission to apply for judicial review, each single judge has decided against Mr McKinnon's case.

If the McKinnon Campaign is correct in that Mr McKinnon's case represents a fundamental miscarriage of justice, then this uniform rejection of his case by each court and each judge is extraordinary, and it would be a matter for the gravest concern.


The Allegations

It is sometimes not clear from the reporting on the McKinnon case what are actually the allegations against him.

For example, Geoffrey Robertson states:

"In 2002, from a council flat and with a battered first-generation laptop, McKinnon hacked into US army computers with a gusto and brilliance attributable to his Asperger's. He left a polite message of political protest against the post-9/11 Bush administration: 'US foreign policy is akin to government-sponsored terrorism these days.'"

As we will see, this is not an altogether accurate description of the allegations; even the date he gives is perhaps misleading.

The allegations against Mr McKinnon have not essentially changed since the original charging by the East Virginian and New Jersey US District Courts in 2002.

In summary, taken from the April 2007 High Court judgment, the allegations can be described as follows:

- that for thirteen months, Mr McKinnon gained unauthorised access to 97 US Government computers, see para 3 here;

- that Mr McKinnon deleted critical operating system files from nine computers and this led to a 24 hour shutdown of 2000 computers in the Washington network of the US Military, see para 4(1) here;

- that Mr McKinnon deleted 2,455 user accounts on one particular US Army computer, see para 4(2) here;

- that Mr McKinnon deleted system files and logs from computers at the US Naval Weapons Station responsible for the identity, location, physical condition, staffing and battle readiness of US Navy ships, rendering the station's entire network of over 300 computers inoperable at a critical time immediately following 11 September 2001, see para 4(3) here; and

- that Mr McKinnon copied data, account files and passwords onto his own computer, see para 5 here.

Mr McKinnon also left the following message on one Army computer:

"US foreign policy is akin to Government-sponsored terrorism these days … It was not a mistake that there was a huge security stand down on September 11 last year … I am SOLO. I will continue to disrupt at the highest levels … "


These are, of course, only allegations; there has not yet been a trial.

However, it would appear that forensic analysis of the computers seized from Mr McKinnon confirms these allegations (see see para 7 here).

It also appears that the alleged activity, if not the damage caused, was admitted to by Mr McKinnon in his two interviews under caution, see para 8 here.


One wonders whether these allegations are more serious than many of those who have strong opinions about the case realise, especially those allegations which go beyond mere unauthorised access to extensive file deletion and the file copying.

Here one can note that the High Court said of the submissions of Mr McKinnon's barrister ( para 30):

"In our view Mr Lawson has tended to understate the gravity of the offences which Mr McKinnon is alleged to have committed. At the same time he has tended to overlook the fact that, if prosecuted and convicted, the equivalent domestic offences include the offence under section 12 of the Aviation and Maritime Security Act 1990 for which the maximum sentence is life imprisonment."

And this was repeated by the House of Lords at para 38 of their judgment:

"As the Divisional Court itself pointed out (at para 34), the gravity of the offences alleged against the appellant should not be understated: the equivalent domestic offences include an offence under section 12 of the Aviation and Maritime Security Act 1990 for which the maximum sentence is life imprisonment."


The starting point for any sense of injustice in this case must surely be the seriousness of the allegations.

But - in my view - the allegations are more serious than are commonly represented.

Indeed, the allegations appear - again in my view - to have been misrepresented by those campaigning against the extradition.

However, this does not make such allegations true, and certainly not proven.

And even it the allegations are serious, they are not determinative of any exercise of mercy.


In Part Two, later this week, the failed plea bargain and the relevance of the Extradition Act 2003.



COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters. Flaming and venting comments are also unlikely to be published.

Monday, 24 May 2010

Gary McKinnon: the legal documents

This week I am preparing a skeptical though balanced blogpost on the Gary McKinnon extradition case.

I have now collected together the following source documents for this exercise.

I set them out below so that it is easier for others to form their own view on this extraordinary case.

The documents are:

the original New Jersey indictment (2002);
the original Virginia indictment (2002);
the original unsuccessful appeal of the extradition decision (April 2007);
the further but unsuccessful appeal to the House of Lords (July 2008);
the refusal by the European Court of Human Rights to grant interim measures (that is stay the extradition) (August 2008);
the successful application for permission for judicial review of the extradition decision (January 2009) following the diagnosis of Asperger's Syndrome;
the the unsuccessful application for judicial review of the extradition decision (July 2009); and
the refusal for permission to appeal the unsuccessful judicial review of the extradition decision (October 2009).

Please do post any further materials and links below.



COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters. Flaming or venting comments are also unlikely to be published.

Sunday, 23 May 2010

Blogging on McKinnon

Next weekend I will be doing a blogpost providing a skeptical view on the McKinnon case.

If there are any points or links you think I should consider, please comment below.

Please note this blog's comments moderation policy; also, I am unlikely to publish flaming or venting comments.



COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

Saturday, 22 May 2010

Down and Out in Slander and Libel

This is an edited version of this week's Bad Law column.


Many would perhaps not think of legal blogging as political blogging.

However, in my view, legal blogging can be incredibly political; indeed, more political than the endless and usually derivative partisan political blogs.

Law in action is, of course, very small ‘p’ political.

Choices are made about how to use – and misuse - the coercive power of the state and the courts: for example, whether to issue a libel claim form, or to bring a prosecution.

As a result of these choices there can be a real impact on public order or public debate, and adverse real effects on the day-to-day liberty and freedoms of citizens.

Politics simply does not end with the high-level policy and rule making of politicians and civil servants.

And so political blogging should not end with monitoring the comings and goings of the political class, who are in any case often indistinguishable from each other in any substantive policy terms.

Indeed, it can be argued that some of the more interesting political blogging starts where involvement of the political class ends: that is, with how policies and rules are implemented, and the effect of such policies and rules in concrete human situations.

George Orwell rarely wrote about Westminster and Whitehall.

His most brilliant political writing was about the effects on the ground: in the Spike, or at a hanging, or in the trench, or shooting an elephant, or just sitting uncomfortably inside either Victory Mentions or the Ministry of Truth.

One wonders what Orwell would have thought of defamation actions; but I hope he would have approved of the followers of this blog looking at how they actually work in practice, and the effects of those actions on free speech and public discourse.

And so I hope he would have joined us spending our time down and out in slander and libel.



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Thursday, 20 May 2010

The Orwell Prize

I am a little sad not to have won it.

However, I did get this honour instead.

And I got to speak at the ceremony last night with Richard Blair, the son of George Orwell.

I also met last year's winner Night Jack and The Heresiarch, who should have been this year's winner.

(I seem to remember telling Night Jack that there really must be more to blogging than writing about the working class like Theodore Dalrymple...)

Anyway, now that is all over with, back to proper blogging.

And I will leave the last word on my Fail to Obnoxio.

Wednesday, 19 May 2010

Guest Post: Simon Singh on the BCA and Dishonesty

I am delighted to publish a guest blogpost by Simon Singh.



Last week the British Chiropractic Association (BCA) hosted one of the world’s biggest gatherings of spinal manipulators, namely the European Chiropractors’ Union Convention in London.

During the coffee breaks, there was probably lots of discussion about the BCA’s decision to sue me for libel over an article I published in the Guardian back in April 2008.

The contentious part of the article questioned whether chiropractors should be treating childhood conditions such as ear infections, asthma and colic.

Last month, after two years of legal wrangling, the BCA backed down and withdrew its libel action. It now has to foot its own legal bill and my legal costs, which I estimate will come to £300,000 in total.

I am sure that the members of the BCA are annoyed that their subscriptions have been wasted on a horrendously expensive libel suit, but at least they can be reassured by some of the comments made in a press statement issued by the BCA last month.

The BCA pointed out that the motivation for its legal action was that it believed that my article alleged that the BCA was a dishonest organisation.

Hence, the BCA attempted to justify its decision to sue me by stating:

“Simon Singh has said publicly that he had never intended to suggest that the BCA had been dishonest. The BCA accepts this statement, which goes some way to vindicating its position”.

This baffles me.

Of course, I publicly stated that I never intended to call the BCA dishonest, because it is completely obvious that the article makes no such allegation. Moreover, and this is the really crucial point, it appears to me that the BCA failed to see any accusation of dishonesty in my article, or at least its solicitor failed to raise the issue when we first exchanged letters.

I must stress at this point that I am not saying that the BCA fabricated the dishonesty allegation at a later stage, but I am saying that the BCA have a very unclear way of communicating their concerns.

This began with its very first letter to me, which was sent on 28 May, 2008 via its solicitor.

The letter does not mention the word “dishonesty” or raise concerns over an allegation of dishonesty, but instead the letter states:

“It is untrue and grossly libellous for you to allege that the claims made by our client happily promotes bogus treatments for which there is not a jot of evidence. There is, as you are or should be well aware, a substantial body of evidence to support these claims”.

In my opinion, the initial letter threatening legal action raises concerns over allegations of a lack of evidence, not dishonesty.

Essentially, the dispute seems to be that the BCA says there is “a substantial body of evidence”, while I maintain that “there is not a jot of evidence”.

This is itself a defamatory interpretation, but one that I would have been delighted to defend at trial; I have examined the evidence and there is indeed “not a jot of evidence”.

By the way, when I use the word “evidence”, I mean reliable/worthwhile/reasonable/good evidence, as opposed to unreliable, unworthy, unreasonable/bad evidence.

There is of course a wealth of bad evidence to support the BCA’s claims, but I assume that anybody with any scientific training (or indeed common sense) would not be interested in bad evidence, because bad evidence is often worse than no evidence.

So why didn’t the BCA raise the question of dishonesty at this stage?

After all, this letter was not sent off in a rush, but rather it was posted over a month after my article was published.

Indeed, a second BCA letter sent to me on 2 June, 2008, also failed to mention dishonesty.

A week later, a Guardian lawyer sent a letter on my behalf to the BCA, which also did not raise the issue of dishonesty, but instead focussed on evidence. After all, evidence seemed to be the crux of the BCA’s complaint:

“We [the Guardian] would therefore be prepared to publish a response from the British Chiropractic Association to Simon Singh’s article in which it, or a representative, could set out the evidence relating to the childhood conditions mentioned above.”

The BCA replied on June 17 and did not accept the offer of a right of reply.

Instead, its solicitor added to the discussion over evidence, but again failed to raise any concern over allegations of dishonesty!

The Guardian responded by offering a clarification, which stated:

“The British Chiropractic Association have told us they have substantial evidence supporting the claim they make on their website that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying. (Beware the spinal trap, page 26, April 19).”

Again, there is no mention of dishonesty from our side, because we still had no inkling that the BCA would ever express any concern over an allegation of dishonesty.

Indeed, had the BCA raised this problem, then it would have been simple to have added a line to the suggested clarification, i.e., “The Guardian and Simon Singh would like to confirm that the article did not intend to imply that the BCA is acting dishonestly”.

(By the way, I am sorry if this is getting boring, but imagine what it was like for me dealing with this sort of tedium for two years, and having to pay for the experience.)

The offer of a clarification was not accepted, but instead a couple more letters went to and fro until 2 July, when the BCA became even more obsessed about the issue of evidence.

The BCA went into great detail about the question of evidence, citing various pieces of research, including the research I discussed in my original article.

The BCA’s solicitor reiterated: “At the heart of our client’s complaint is Dr Singh’s assertion that ‘there is not a jot of evidence’ for the claims made by our client that chiropractic ‘can help treat children with colic’ and other conditions listed by him”.

Eventually, on July 10, the BCA decided (for whatever reason) to suddenly raise the issue of dishonesty.

It formally issued a writ against me, which meant crossing the legal Rubicon.

A legal document called the Particulars of Claim stated that my words clearly implied that the BCA “knowingly promotes bogus treatments”.

It seemed ludicrous to me that anybody could interpret my article in this way, and to base an entire legal action on such an interpretation struck me as mind-boggling, especially when dishonesty had not previously been mentioned in any correspondence.

Many people have asked me why I did not settle the case at this point by clarifying that I had never intended any implication of dishonesty.

Unfortunately, the situation was not quite so simple.

First of all, I am confident that the BCA would have demanded that I pay its legal bills and probably some damages on top. I am guessing, but I think I would have ended up with a bill for £20,000, purely to clarify a sentence that I had always thought was obvious from the very beginning, and which the BCA had not previously framed as an accusation of dishonesty.

Moreover, the issue of evidence, or lack thereof, would have been left hanging.

It is impossible to work out what was going on at BCA HQ, because we now have statements that contradict actions.

For example, this year the BCA issued a press release that stated:

“The motivation for this action was always to clear our good name, particularly in respect of the implication that we acted dishonestly”.

Well, it wasn’t always clear to me! It took three months after my article was published for the BCA to indicate that it interpreted my article as an attack on its honesty. If anything, it appears that the issue of dishonesty was an afterthought.

This paradoxical behaviour was raised by my barrister Adrienne Page QC in the Appeal Court hearing earlier this year:

"What I wish to draw attention to in the early correspondence is that the complaint was a complaint about the assertion that there was not a jot of evidence, and the complaint was that there is in fact a substantial body of evidence… Now there was no complaint there -- there was no complaint at any stage in the correspondence prior to the issuing of the claim form -- that the allegation was one of dishonesty or knowledge of absence of evidence on the part of the BCA".

The Appeal Court went on to rule in my favour, with the three appeal court judges being equally perplexed by the interpretation of dishonesty that was being pushed by the BCA.

They agreed with me that my article accused the BCA of being reckless, but not dishonest.

It was soon after this Appeal Court decision that the BCA dropped its libel action, thereby allowing my accusation of recklessness to go unchallenged.

However, I remain befuddled by the contrast between the BCA’s recent press release (focussing on dishonesty) and the BCA’s original letter (focussing on evidence), so I asked the BCA why it did not raise the allegation of dishonesty in its initial letter.

Unfortunately, the BCA declined to offer an explanation.

So I asked my solicitor, Robert Dougans (Bryan Cave LLP), about the BCA’s sudden and belated obsession with supposed accusations of dishonesty:

"When the BCA’s letter before action came in, it did not mention dishonesty. The first mention of this came with the Particulars of Claim, after they actually commenced proceedings. My thoughts were that this was a common pleading trick in defamation law - that you plead as serious a meaning as you can. This means that if the Defendant tries to deal with the case quickly and honourably under the Offer of amends procedure, they will be bound by the more serious meaning. In my mind then, this meaning and the fact that the BCA made an early offer to settle with a short deadline, meant that they were playing hardball from the start".

Is it possible that the BCA threw in the interpretation of dishonesty merely as a tactical trick?

Or, is it possible that the BCA was right (albeit late) in arguing that my article contained an accusation of dishonesty?

Do the words “happily promote bogus treatments” imply dishonesty?

It depends on the context, and for me the context clearly points towards an organisation that is naïve and reckless in promoting treatments that I believe are ineffective.

For example, earlier in my original Guardian article I had written about chiropractors who have “quite wacky ideas”, which implies eccentricity or stupidity rather than dishonesty.

I had also written about some chiropractors being “fundamentalists”, and there is never any question about the integrity of a fundamentalist.

And immediately after writing “bogus treatments”, the article went into the question of evidence in detail, thereby explaining that “bogus” means lacking in evidence, and not fraudulent.

I think it is fair to say that the vast majority of people agree with my interpretation of my own article.

For example, when the article was originally written and edited, neither I, nor the Guardian’s Comment editor, nor the sub-editor, nor the in-house lawyer saw anything that might imply dishonesty.

The article was also given to Professor Edzard Ernst for feedback – Edzard and I had co-authored “Trick or Treatment? Alternative Medicine on Trial” – and he also did not see anything that might trigger a libel suit.

Nevertheless, the BCA’s current interpretation of my article was famously backed by one person, namely Justice Eady, who presided over the case and who gave a very important preliminary ruling on meaning.

By forcing an accusation of dishonesty onto my article, Justice Eady was asking me to prove something that I had never intended to write.

His ruling almost caused me to buckle, abandon my defence, and question my sanity.

Fortunately, three of the most senior judges in the land overturned his ruling in the Court of Appeal. This reassures that (on limited data), 75% of judges agree that the article did not contain any allegation of dishonesty.

I apologise again for the fact that this is a relatively dull blogpost about one small aspect of the whole “BCA v Singh” libel case, but I want to show how some of the BCA’s legal correspondence with me has not been consistent with its more recent press releases, and this should be of particular interest to its members.

So far, chiropractors have been hearing the BCA’s version of events (i.e., Simon is nasty because he called us liars), but they have not seen the initial correspondence which paints a different picture (i.e., Simon is a problem because he is questioning our evidence).

Perhaps these inconsistencies merely highlight the need for the BCA to have a better press officer or a solicitor who more clearly expresses the BCA’s views, or maybe there are deeper problems at the heart of the UK’s biggest professional body for chiropractors.

In the wake of the BCA’s failed libel action, there is an opportunity for the members of the BCA to look at their professional body and re-examine how it could act radically and rapidly to improve itself and the chiropractic profession more generally.

This will only be possible if the BCA is able to publicly acknowledge its own failings and the unacceptable behaviour of some of its own members.

For example, since my article was published and the ensuing libel action, the BCA website has quietly withdrawn from its website claims that its members can help children with colic, asthma and ear infections.

I am glad that I have helped the BCA develop its policy on limiting the ambitions of chiropractors, but I would have liked to have seen a press release on this significant policy change.

Also, it strikes me that the BCA could have issued a press release about the fact that 1 in 4 British chiropractors (including many BCA members) are currently being investigated for allegedly making misleading claims in advertisements and on websites.

Indeed, the misleading claims at the centre of many of these investigations relate to treating the very same childhood conditions that I discussed in my original article. Why did the BCA not deal with this problem five years ago, rather than waiting for bloggers and skeptics to highlight the issue by submitting formal complaints?

The European Chiropractors’ Union Convention is now over, but if there is space for an extra pair of speakers at the next big chiropractic conference, then I hope that the BCA will get in touch.

I would be delighted to tell the chiropractic community more about the libel case from my point of view, and I know that Professor Ernst would be very willing to present an overview of the latest evidence for and against spinal manipulation.

If the chiropractic profession wants to move forward then it is crucial that the BCA engages with its critics in a wide-ranging, public and robust dialogue, as opposed to tackling criticism with a libel action.


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Monday, 17 May 2010

Introducing Ida Mabel Limouzin


Let me introduce you to Ida Mabel Limouzin.

You will like her.

She was born in 1875 and grew up in Burma in the port of Moulmein, where her French family had conducted business since the British annexation in 1826.

The Limouzins were a well-regarded family with wide commercial interests; they even had a street named after them. One family member remembered that the head of the family "lived like a prince".

She was attractive - slender with striking eyes and thick wavy hair - and highly independent.

According to one author, Ms. Limouzin was certainly a "more lively, unconventional, widely-read and in every way a more interesting person" than the dullard she ended up marrying.

She insisted on a separate bedroom to the dullard. When seen together she seemed to others to be faintly dismissive of him. The evidence suggests she only married him on the rebound.

When she brought her young family to England - the dullard was sent off to work in India for years and so played no real part in his children's upbringing - she mixed with Suffragettes and attended public meetings. She often took her children with her: she was remembered by her daughter as being a mother "for outings".

The house was full of fanciful objects, and she had a passion for art and photography.

In essence, Ms. Limouzin was a bohemian at the turn of the twentieth century, but one devoted to her young children.

Her son grew up to be famous.

You can see him as the baby in the photograph above.

Her son was George Orwell.

And when one looks at George Orwell from his mother's perspective, a great deal seems to make sense.

One is no longer trying to explain why the Eton schoolboy decided not to go to university but went to Burma and then Paris instead.

After all, from his mother's side Orwell was Franco-Burmese in the first place.

One can also perhaps see where his independence of mind and unreadiness to conform came from.

(Indeed even at Eton he was distinctive. He was known as "the college atheist" and he read books which surprised his teachers and friends. Regarding Orwell just as a typical Etonian is in my view misconceived.)

But the British obsession with class, and the sexist assumption that the paternal side is more significant, tend to dominate Orwell scholarship.

As I type I have in front of me one biography of Orwell which spends six pages lovingly detailing the family and class background of the dullard, including mentioning distant and titled relatives of whom Orwell was probably unaware.

The biography then deals with Ms. Limouzin in a couple of sentences.

I rather think it should be the other way round.



I almost did a research degree on George Orwell.

I had an ambition of looking at each stage of his life and development from a fresh perspective.

(See my blogpost here for an example of this: I argue that the title of Nineteen Eighty-four may owe more to Orwell's utter disdain for Catholic apologists than the usual - but badly sourced - contention that it was a play on 1948.)

But I became a jobbing lawyer instead.


It has been a thrill to be long-listed and then short-listed for the Orwell Prize for blogging.

The reason I entered this blog for the prize was that it was named after one of my two intellectual heroes (the other being David Hume).

I am astonished to have got so far, especially as I am more a clear than an elegant writer.

At least it provides a pretext to resurrect my sadly-aborted academic research.

And it allows me to introduce you to the lovely Ida Mabel Limouzin, without whom the Orwell Prize simply would not be possible.



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"Your foolishness": the sentence given to Paul Chambers

Below is the order of the court as to the sentence given to Paul Chambers.

This accompanied the disgraceful and illiberal judgment.


R v Paul John Chambers

1. I have found you guilty of one offence of sending a menacing message via a public communications network, contrary to Contrary to [sic] section 127(1)(A) and (3) of the Communications Act 2003. This was [for] one single, menacing posting on the "Twitter" social networking site. It was not seen for several days by anyone connected to the airport.

2. I find no aggravating features other than the offence itself.

3. I have heard evidence from the Airport security in the form of Mr Armson that when he saw this posting on 11th January n [sic] he regarded it as a non credible threat. He was amazed at how easy it was to find. However he noted that you had left your name. Non credible is the lowest threat assessment. He goes on to state that the threat did not affect the running of the airport.

4. I am obliged to take account of the Magistrates' Court sentencing guidelines, published by the Sentencing Guidelines Council. If I depart from these I have to give reasons. The entry point for an offence of this nature is a level B fine. This is based upon someone being convicted after trial and being of previous good character. You fall into both these categories. I shall follow the guidelines.

5. Furthermore you have lost your job as a result of your foolishness and had considerable un wanted [sic] publicity. Currently you have no income and are living upon your savings. You have had to fund your own legal defence. You are not eligible for legal aid.

6. For these reasons I shall fine you £385, £15 victim surcharge that I am obliged to impose, and you will pay the [prosecution] costs of £600. A total of £1000.

Jonathan Bennett
District Judge (Magistrates' Court)
10th May 2010




COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

**No personal attacks on the judge or witnesses will be published**

Sunday, 16 May 2010

What the Osler Decision Means

The Osler decision is a refreshingly liberal judgment, though one which is in the context of an ongoing overall failure of English libel law.

The Claimant's case was struck out by Sir David Eady, and it was struck out on two bases.

The first basis was that the claim was an "Abuse of Process".

The second basis was that the claim was brought in breach of the limitation period.

Both bases are interesting for understanding the current state of English libel law in general, and for understanding its application to blogs and material on the internet in particular.

(Please note that I was part of the pro bono legal team for Dave Osler in this case.)


Background

The material facts are these.

The Claimant published information on her website (the "Original Blogpost").

At the time the Claimant was highly active in local politics.

Dave Osler, a professional journalist and leading blogger, saw this information.

Linking to the Original Blogpost at least twice, he did a balanced and sympathetic blogpost (the "Osler Blogpost") summarising and commenting on what the Claimant had said.

The Osler Blogpost was as follows:

"Respect member's 'Baader-Meinhof link

"[The Claimant] – recent defector from New Labour to Respect – was in the 1970s held in custody in her native Germany, charged with support for the ultraleftist Baader-Meinhof terrorist group.

[The Claimant] – pictured left – denies any wrongdoing, although she admits to having organised some sort of benefit gig:

'All I ever did was organise a music concert in the University of Würzburg Mensa. This got me sacked from my job in the University bookshop Schöningh and I also then lost my home.'

She has recently launched a complaint against leading German news magazine Der Spiegel for an article it wrote three decades ago, naming her in this connection. Rather than trying to hide any of this, [the Claimant] has commendably chosen instead to post a copy of the story on her own website. She goes on to write:

'I can safely say I never met any of the other persons mentioned in the article and got released after three months of prison on remand and was paid compensation for wrongful arrest and imprisonment two years later.'

If we take this account at face value – and I have no reason not to – the worst she stands accused of is youthful folly. After all, many young attracted to far left politics in the 1970s were passively sympathetic to groups such as the Baader-Meinhof gang. Most have subsequently been rehabilitated.

Former Angry Brigade suspect Angela Mason these days boasts an Order of the British Empire gong and sits on quangos. Even I used to wear a Brigate Rosse T-shirt, as modelled by Joe Strummer. [The Claimant] appears to have come to political terms with all this:

'Frankly I cannot understand how such educated university graduates like the Baader Meinhof people fell for this illusion that the state is only a paper tiger and they can win an urban guerrilla war against them.

'Now with al Qaeda again we have people believing they go to paradise after they blew themselves up and that they are good Muslims if they cause a lot of destruction.

'Terrorism is the enemy of all Socialism as it creates exactly the opposite reaction, it makes the state more right wing and is likely to destroy all Socialist advances made by peaceful negotiation.

'If I knew of someone planning a terrorist atrocity I would definitely report them to the authorities because it's not right. I believe that people being put up to those guerrilla activities are being used by some people for exactly the purpose to create a right-wing movement.'

The thing is, she may find that not all of her new colleagues in Respect share her stance. Respect MP George Galloway, for instance, believes it would be morally justified for a suicide bomber to kill Tony Blair.

Posted at 23:58, 7 April 2007.



The Claimant took exception to this.

So, after some correspondence, Dave removes the Osler Blogpost and offers a right of reply, which is then published.

At some unknown point, the Original Blogpost is deleted and, just over a year after the Osler Blogpost was first published, the Claimant issues a lengthy and complex claim for libel against Dave.

At no point does the Claimant disclose the Original Blogpost.


Abuse of Process

The modern law on Abuse of Process in libel cases derives from the 2005 Jameel case; see paragraph 14 of the judgment:

"It is suggested by Mr Dougans [Robert Dougans, Dave's solicitor advocate] that there is nothing of substance to be gained from these proceedings by way of giving [The Claimant] any greater vindication of her reputation, if such was needed, than that already obtained three years ago by the publication of her response on 26 May 2007. He submits that, in all the circumstances, the case falls within the doctrine explained by the Court of Appeal in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946. It is said that there is no realistic prospect of a trial of these issues yielding any tangible or legitimate advantage, such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources, and that "the game is not worth the candle"."

In that decision the Court of Appeal held:

"It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake...We accept that in the rare case where a claimant brings an action for defamation in circumstances where his reputation has suffered no or minimal actual damage, this may constitute an interference with freedom of expression that is not necessary for the protection of the claimant's reputation."


The only pity about this rule is the use of the word "rare".

Many defamation cases, especially those routinely threatened and sometimes brought by so-called "reputation management" solicitors (that is, those attempting to do Public Relations with the clumsy and illiberal use of libel threats), seem to fit this definition quite well.

In the Osler case, it was argued that as all the Osler Blogpost did was summarise and link to the original Blogpost.

However, as the Original Blogpost was not available, this was a difficult submission for Dave's solicitor advocate Robert Dougans to make.

Robert was able to submit the following as being beyond dispute about the content of the Original Blogpost:

a) The Claimant suffered prejudice because she had played a minor role in organising a benefit concert in aid of "Red Help", which provided legal assistance to left-wing radicals in Germany at that time.

b) The Claimant was arrested in Germany in July 1975 and suspected of links to left-wing extremists.

c) This was mentioned in the Spiegel article.

d) The Claimant was released without any finding of guilt and compensated for wrongful arrest and imprisonment.

e) The Claimant was never involved in violence and did not meet any of the supposed extremists mentioned in the article.

f) The Claimant is firmly opposed to terrorism.

Having established this, the question became how far the Osler Blogpost went beyond what could be established about the Original Blogpost.

On this Mr Justice Eady states at paragraph 18 of the judgment:

"It is clear from Mr Osler's wording in the offending post that he was quite prepared to accept [the Claimant]'s denial of any wrongdoing and the fact that she had been compensated for wrongful imprisonment. I am quite satisfied that the posting does not link her to terrorism, in the sense of suggesting in any way that she was directly linked with it or that she approved of the extremist activities. He was merely choosing to highlight an unusual event in the history of someone who was at the material time active in politics in London. He was, in effect, taking her own assessment of the situation at face value. He went on, as a matter of comment, to point up the irony that she was now linking herself with another political grouping, the Respect Party, which contained members who thought (at least according to Mr Osler) that terrorism or assassination could in certain circumstances be morally justifiable."

He continues at paragraph 20:

"The question arises, therefore, whether in the light of what actually appeared on Mr Osler's posting, in April 2007, and in the light of the right of reply published on 26 May 2007, there is anything to be gained from the continuation of these proceedings by way of the legitimate objectives of any defamation action, namely the vindication or restoration of the claimant's reputation. Is there anything requiring vindication? Needless to say, that question has to be judged by reference to any marginal damage that may have been done to [the Claimant]'s reputation by Mr Osler's posting over and above the impact on it of her own posting coupled with the republication of the 1975 Spiegel article."

Referring to Jameel, Mr Justice Eady summarises Robert's submissions:

i) Mr Osler made it clear that he saw no reason to reject [the Claimant]'s protestations as to her innocence of any implication in violence or terrorist activity.

ii) Accordingly, the only possible defamatory imputation of any substance is that, at one point in the distant past, she came under suspicion by the German police in the troubled climate of the mid 1970s (albeit subsequently vindicated by the recognition of wrongful imprisonment). To that extent, and to that extent only, the defamatory imputation would, on her own admission, be true.

iii) The only new material introduced by Mr Osler would appear to be the reference to Baader-Meinhof. Most reasonable readers would know, however, of the active involvement of that group, rather loosely defined, in political extremism at the time. It is a name which would, accordingly, spring to mind purely from the context – as it seems to have done in Mr Osler's case. It has to be remembered that it is not suggested that [the Claimant] had any direct involvement with Baader-Meinhof. The specific reference to that group, therefore, can in practical terms add virtually nothing to the suggestion that for a period she came under suspicion of involvement with extremist activities. It merely identifies one particular group within that broad category.

iv) It is true that Mr Osler added the comment that "the worst she stands accused of is youthful folly". That is not a particularly serious allegation in any event, but in context it plainly relates to the activities (whatever they were) which led her to be arrested and (albeit wrongfully) imprisoned. He refers to "many young people attracted to far left politics", which he assumes is an apt description of Ms [The Claimant]'s standpoint at that time, but he is not even suggesting that she was "passively sympathetic to groups such as the Baader-Meinhof gang". It is a general comment about young people of the period who have become subsequently "rehabilitated".

v) If there had been any sting in the original 7 April posting, it would surely have been drawn for practical purposes by the "right of reply" published three weeks later,


Mr Justice Eady then concludes:

"It is necessary, therefore, to try and assess what a jury would make of the alleged injury to [the Claimant]'s reputation against the background I have described. If the jury came to the conclusion that none of the defences raised could succeed, I cannot imagine that the damages would be other than very modest. I would take the view that any such award would be out of all proportion to the time and money spent on this litigation and, in particular, to the cost of a two-week jury trial.

In the circumstances, I have come to the conclusion that this is indeed one of those unusual cases in which the doctrine of abuse of process, as discussed by the Court of Appeal in Jameel, should be applied."



What this means is that when a claimant cannot establish that a publication goes further in its defamatory "sting" than what the claimant published themselves, especially when complemented with a right of reply, then the court will be minded to strike the claim out as an abuse.

This must be correct.

And, as linking, fair summaries, and rights of reply are good blogging practice in any case, then this may not be a difficult defence to raise in appropriate circumstances.

But more interesting for bloggers, and indeed other publishers on the internet, is the liberal approach Mr Justice Eady then adopts to the application of the statutory limitation period.


Limitation Act

A claim for defamation has to take place within a year of publication.

However, in this case the Claimant brought the case just over a year later. Undoubtedly, the Claimant was relying on the notion that the material continued to be "published" until Dave had taken it down.

Here Mr Justice Eady states:

"...as to limitation, it is clearly right in principle that [the Claimant] should be confined to any publication(s) within the 12 month period preceding the date of issue. That being so, it becomes yet more apparent how disproportionate the claim is."

One of my criticisms of English libel law is that requires so little for a claimant to show before threatening or issuing a claim.

It is thereby pleasing that the Claimant in this case was required to show publication.

And she could not:

"It would be for [the Claimant] to demonstrate that Mr Osler was responsible for some repeated or continued publication during the relevant 12 month period. She cannot rely on any presumption to that effect. His evidence (which I see no reason to reject) is that the posting was by 28 April 2007 off the front page and only accessible to an active searcher looking for it in the archive. Furthermore, as he put it, the article was "unpublished" by the time of the reply on 26 May 2007. In those circumstances, it seems to be clear that the law would require [The Claimant] to identify any specific examples of publication: see e.g. Al Amoudi v Brisard [2007] 1 WLR 113. Mr Dougans submits that there was only one comment on the post subsequent to 28 April 2007 (by someone using the name 'Alex'), and this in itself does not demonstrate that the person concerned actually dug out the original posting after that date. It is at least possible, for example, that he relied on memory or, alternatively, was making a comment on earlier comments."

Mr Justice Eady then adds:

"[The Claimant] has put forward a 'Bundle C' to seek to show that the post of 7 April 2007 was read after 28 April. Assuming she is right about that, for the purposes of the present application, the number of publications after that date would be very small and would still fall within the Jameel doctrine. To pursue the claim in the hope of achieving additional vindication in the eyes of that small group would not be "worth the candle"."

This means that bloggers and other internet publishers are less exposed to a libel claim in respect of stale material.

After a year from publication it will be for the claimant to prove there has been a substantial fresh publication.


Disclosure

Mr Justice Eady also dealt with the disclosure question. The most worrying issue in this case was the failure by the Claimant to disclose the Original Blogpost.

(Please be assured that Robert and I have everything which can be recovered in this respect.)

But even this would have provided no protection for the Claimant had the claim not been struck out:

"Likewise, it becomes unnecessary to make an order for further disclosure of documents. I would otherwise order that [The Claimant] should give disclosure of her own posting, as to which Mr Osler has given evidence and on which he based the words complained of. If she no longer has it, she would have to provide a witness statement indicating her best recollection of what happened to it."



Conclusions

Now that the case has been struck out, it is difficult to believe it continued for two years and was about to be put to a full jury trial.

However, the complications and technical nature of libel law means that once claims are launched they are excruciatingly expensive in terms of time and money to close down, even when - as in this case - the claim was not clearly not actionable in the first place.

In the upcoming debate over libel reform, it will not be enough to look only at discrete and particular proposals for reform.

There needs to be a fundamental consideration of the role of private right to a reputation in a modern society that requires free discourse on public matters.

Here it is significant that the Osler Blogpost was a non-actionable publication relevant to the political activities of a Claimant, and it was a publication based on publications freely made by the Claimant.

For this to lead to two years of litigation, resolvable only by the pro bono intervention of specialised lawyers, cannot be characterised in any other way than as a fail.

It is by examples such as these that we can see how libel disfigures our polity and our public debates.

And the challenge for those of us who urge libel reform is to ensure such failures do in fact become the rarity that Court of Appeal loftily and wrongly believed them to be in Jameel.


NOMENCLATURE

The Claimant has been very greatly upset by this judgment and the attendant publicity.

I really have no wish to cause her further upset and distress. Accordingly, I have used "The Claimant" instead of her name, and I have also sought to minimise any criticism of her.

There is one outstanding case, against Alex Hilton and John Gray. Robert and I are seeking to close that case down too and then apply for an order restraining the Claimant from commencing other such claims. That is all, I think, which needs to be done in respect of the Claimant.


COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

**No comments directly critical of the Claimant, or naming her, will be published**

Saturday, 15 May 2010

The Reply Given in Arkell v. Pressdram

I have been asked about the leading case of Arkell v. Pressdram (1971), which I referred to here.

This case is well known among lawyers and journalists, especially the phrase "I refer you to the reply given in Arkell and Pressdram".

But it really deserves to be better known, and so I set it out below.

(I have taken the text from here and background is here.)


Solicitors' letter to Private Eye:

We act for Mr Arkell who is Retail Credit Manager of Granada TV Rental Ltd.

His attention has been drawn to an article appearing in the issue of Private Eye dated 9th April 1971 on page 4. The statements made about Mr Arkell are entirely untrue and clearly highly defamatory.

We are therefore instructed to require from you immediately your proposals for dealing with the matter. Mr Arkell's first concern is that there should be a full retraction at the earliest possible date in Private Eye and he will also want his costs paid. His attitude to damages will be governed by the nature of your reply.



Private Eye's reply:

We acknowledge your letter of 29th April referring to Mr J. Arkell.

We note that Mr Arkell's attitude to damages will be governed by the nature of our reply and would therefore be grateful if you would inform us what his attitude to damages would be, were he to learn that the nature of our reply is as follows: fuck off.



No further correspondence was received.


COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

My Profile at Normblog

I have been profiled at Normblog.

The Timothy Spall reference is not a joke. My avatar is most misleading...


COMMENTS MODERATION

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Paul Chambers: Guest Post by CrazyColours

Paul Chambers was prosecuted and convicted for telling a bad joke.

He now has a criminal record.

Below is a guest blogpost on this disgraceful case by his partner, the former journalist who tweets and blogs as CrazyColours

You can donate to Paul's appeal fund
here. Please do.





I was surprised, albeit flattered, that Jack of Kent asked me to do a guest spot on his blog. I should warn you though, that I have no legal training - so you won't find any fresh legal insights into the case of Paul Chambers vs the CPS. But I can talk about my experience.

I am CrazyColours. During the trial, the fact that I hid my true identity was used to highlight the transparency of Paul's twitter account and the fact he used his real and full name. Because if his threat was a real one, he'd have been anonymous, would he not? Whereas, I keep my real identity secret, not so I can threaten to blow up airports without personal consequence; but so I cannot be judged by employers, my father and the head of the industry in which I worked (who followed a twitter account I had under my own real name), for my "fine line" sense of humor and profane hyperbolic venting.

I "met" @pauljchambers on twitter more than a year ago now. We seemed to have the same sense of humor, and a friendship developed fairly quickly. Fast forward a year, and after meeting at a tweet-up in London, he'd planned to come and stay with me in Northern Ireland. Flights were booked and we were counting down the days, excited and nervous. It wasn't a blind date, as some newspapers have reported, although we did expect his trip to result a relationship. You know the type... boy tweets girl, girl tweets boy, boy gets arrested for a hyperbolic outburst at the extreme weather conditions.... no?

When Paul was arrested, we'd been in the middle of a text conversation. Paul, being the prolific tweeter/texter that he is, always replied almost immediately. But this time, I heard nothing from him for hours. This was not usual. I called and left an answerphone message for him. I believe that in the message I joked that I was going to hijack a plane - the police, unbeknown to me, had his phone at this time. They mustn't have listened to the message, or I'd have been arrested too.

It started getting quite late, and I still hadn't heard from Paul when I went to bed. I didn't know what to think. Trying to push the possibility that something was really wrong to the back of my mind, I told myself that his phone was broken. I try not to worry about things unless I know there is definitely something to worry about.

A call woke me at around 11 that night. It was Paul. I could tell by the tone of his voice immediately that something was very wrong. He said he'd been arrested under terror legislation. In my sleepy state, it was hard to take in. I thought it was a wind up. Then I thought that he must have changed his mind about me, and about coming over to see me, and this was an elaborate and over-the-top excuse to get out of it. He had to convince me he was telling the truth, and in the end I believed him.

After the call, I began to panic. I know I retweeted the tweet he was arrested for. Was I going to be arrested too? He'd told the police he was coming to see me - would they think we were both colluding to bomb an airport? Ridiculous paranoia - but this was a pretty ridiculous situation. I looked at my peacefully sleeping five year old - what would happen to him if I was arrested? Should I make provisions for him to be looked after just in case? I had a panic attack. Not something I'm prone to - but I was afraid, worried and confused.

I went onto twitter and contacted a journalist I'd "met" through there - Jason Walsh. I told him what had happened and asked him what to do. He couldn't believe it either. After some advice to keep quiet for now, he promised me that he'd help all he could. And he did. Realising that this was an issue beyond the unfortunate first person to be arrested for it, he ensured the story that subsequently broke was more about the misguided arrest, and less about Paul, which we were grateful for. He also was a valuable friend to have, and reassured both of us constantly over the coming weeks.

Then twitter found out, and the prominent reaction was one of disbelief and disgust. A small minority of people said Paul got what he deserved and branded him foolish (to put it lightly). People feeling they had a right to make personal attacks because this was something now in the public arena, was difficult to take. We both learned to grow a thicker skin.

I came to see Paul a month later and went with him to the police station to find out if he was being formally charged. The general consensus by pretty much everyone, including myself, was that he wouldn't be. When Paul emerged from the office in the police station and said, "I've been charged," I was incredulous. We sat down with his solicitor of the time straight after, and his solicitor had to look up what he was charged under - Section 127 of the Communications Act, 2003 - an obscure and unknown law as he described it - and then advised Paul to plead guilty. It was absolute he said, like speeding. Unless Paul denied writing and sending the tweet, he was guilty.

Paul had been suspended from work since his arrest, where he had progressed for nine years. In my opinion, he handled everything exceptionally well, better than I would have. But he later admitted to having very dark days, his life was suddenly completely out of his control and his chances of qualifying as an accountant, something he'd trained for for years, were gone. His family and friends, and myself, were very concerned about him.

Then Jack of Kent picked up on his story and blogged about it. And what a godsend that was! Suddenly there was hope that Paul didn't have to accept this. Judge Jonathan Bennett accepted Paul's change of plea to "not guilty" and Paul found another solicitor prepared to fight his corner with him.

The trial was on Monday. Paul and I travelled from Northern Ireland (where he'd spent the previous 3 weeks) and were hopeful of a positive outcome. On the day, nerves and emotions were running high. It was all down to the judge now, Paul's future was left entirely at his discretion. We hoped for common sense, at last.

I'd been in a court before, reporting on cases for a daily newspaper; but this was entirely different. Watching this trial just play out, passively, as I'd done many times before was suddenly very difficult. Many points were made by the prosecuting witness, the prosecuting solicitor and the prosecuting judge that I silently contested. It was incredibly frustrating.

The prosecuting witness, head of security at Robin Hood Airport was asked, since reporting Paul's tweet to the Special Branch, does he still continue to preform Internet searches on Robin Hood Airport? He answered affirmatively.

"Why then," I thought, "doesn't he report all the other threats about Robin Hood Airport?!" I know there have been hundreds of threats against it since, in protest of Paul's arrest. Of course, common sense dictates that subsequent threats were in fact in protest, and non-credible, but Paul's original tweet was also deemed non-credible. If he had a duty to report Paul's to the police, surely he had a duty to report the others? Or had the airport changed their security policy in the 48 hours since Paul's arrest and the start of the subsequent protest threats? Maybe they realised that common sense was something to be exercised in matters serious enough to destroy a person's career and life. One can hope!

The lack of understanding by the prosecution and the judge about twitter irked me, as did the pious attitudes towards Paul's hyperbolic, and sometimes profane tweets. It smacked of hypocrisy. Who hasn't communicated in a way which, out of context or in context, can't be described as menacing, obscene or threatening? Fuck. There - an obscene message, communicated electronically. Arrest me officer!

Before the verdict, the prosecution solicitor was heard saying he expected Paul would get acquitted. The prosecution did more to aid Paul's case than offend it in my opinion - something Paul's defence solicitor corroborated when he made the same point while addressing the judge.

It was for the prosecution to prove guilt with mens rea, not for Paul to prove his innocence. Paul spoke under oath, his good character was not contested and was used as evidence, so the judge SHOULD have had no other option but to take what he said about his lack of awareness and intent as read. Forgive my ignorance, as I said, I am not legally trained, but why testify under oath at all if the judge is going to simply dismiss it? Did the judge decide, against all evidence, that Paul lied under oath? Isn't that an offence in itself?

The judge delivered a guilty verdict. It almost amused me that the judge found him guilty because of the "context of times in which we live," and decided that any other form of context in twitter, Paul's timeline, his followers, his good character, and indeed common sense were completely irrelevant.

Then, the statement released after the trial from the CPS actually contradicted the prosecution evidence in court FROM THE CPS. The verdict just didn't make sense.

Since the verdict, there's been a public outcry on twitter and in the media. A fund has been set up for legal and appeal costs, and to date, the total stands at more than £4000. Paul, uncomfortable at accepting any money at all, realises that this must be fought, not only for himself, but for everyone else now at risk of similar prosecutions. The level of support he's received means he can't, in all conscience, just let it lie.

We fully expect to be able to get this verdict overturned. Many in legal circles believe this ruling to be misguided at best, and reckless and dangerous at worst. There are many legal points which are disputed, and although I can just about understand them, I won't repeat what Jack of Kent has already said in previous posts (not that I could if I tried).

The future for Paul is in a state of limbo. After losing his job over this, finding a new one is going to be difficult in today's tough climate. More so with a conviction. He has a mortgage to pay; financial ruin is a very real possibility. His career is over before it has begun. His good character has been compromised. For a tweet.

The media frenzy that has resulted out of his conviction, and all the busyness that goes with it, serves as a momentary welcome distraction to the fact that in front of him is an uphill struggle to rebuild his life and find a chink of security amid the uncertainty. He retains his sense of humour, pragmatism and humble attitude. I'm very proud of how he has dealt with everything, and I hope that EVENTUALLY, this is resolved sensibly and we can put it behind us, and carry on with our lives.

I also hope that in future I won't risk prosecution for making an exaggerated, sarcastic or humorous comment; how it is received or how it is meant, deemed completely irrelevant.



COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

Thursday, 13 May 2010

Dave Osler's Splendid Victory - but a Libel Fail

[Please read COMMENTS MODERATION below before commenting.]


This morning the High Court struck out the entire libel claim brought by Johanna Kaschke against Dave Osler.

This was a stunning and indeed commendable ruling by Sir David Eady.

The case report is here. (I plan to post an analysis at the weekend.)

The claim was struck out for Abuse of Process.

She has to pay costs.

Sir David Eady also refused permission for Johanna Kaschke to appeal.

The great Robert Dougans was the solicitor "on the record" (see Press Release).

Robert also did all the advocacy.

He and I shared the six months' legal work required for the defence and applications pro bono, assisted recently by the ever-excellent William McCormick QC.

Robert and William, of course, acted for Simon Singh in his successful defence against the similarly misconceived claim brought by the now discredited British Chiropractic Association.

(Before the hearing I also received a libel threat from Johanna Kaschke in respect of my blogpost of yesterday. In accordance with good blogging practice, she can of course have a right of reply, but else I will refer her to Arkell v Pressdram (1971).)

As Robert Dougans rightly said in court, Johanna Kaschke has long "thrown libel writs like confetti". A number of bloggers and journalists have been threatened or served with libel claims by her.

Accordingly, Robert and I will be applying for a restraining order (a sort of ASBO for vexatious litigants) against Johanna Kaschke at the earliest opportunity.

This is a great victory: it is rare for an entire libel case to be struck out for Abuse of Process.

Dave Osler has two years' stress and loss of time for a blogpost which simply was not actionable.

Until today he also faced personal bankruptcy in the event of a subtantial award of damages after a full jury trial which was to take place later this year.

I repeat, today's decision shows that the blogpost was not actionable in the first place.

These two years of litigation, and the six months of extensive pro bono work (which otherwise would have cost Dave tens of thousands of pounds at least), show this to be a "fail" for English libel law.

It was only because of the expertise and time spent of Robert, William, and myself, that we were able to identify the technical bases for the application to strike out; there was no way that any lay person could have realistically done this. This case would have proceeded to trial.

Libel abuse has to stop.

So please, if you have not already done so, sign the libel reform petition at www.libelreform.org and write to your MP to demand legislative reform as soon as possible in the new Parliament.

Oh, and do send Robert Dougans a congratulatory email at Robert.Dougans [a] bryancave.com.

He deserves it.


COMMENTS MODERATION

No comments mentioning expressly or implicitly Johanna Kaschke will be published. This is to protect the commenter.


No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

Wednesday, 12 May 2010

Dave Osler Libel Decision Due Tomorrow

Let me introduce you to Dave Osler.


You will like him.

He is a professional journalist and author, and his blog is perhaps the best and wittiest left wing blog in the UK.

It is extremely well-written and engaging.

It is a favourite of mine, and of hundreds of others.

But for the last two years Dave Osler has been living under the threat of a libel suit for a blogpost, which I now re-publish in full below.

This threat will continue, depending on what the High Court says tomorrow.

If he loses at trial, he will be bankrupt.

This is serious.


So what is it about?

As you will see, Dave's blogpost was prompted by an earlier blogpost by Johanna Kaschke, who was - and is - active in local politics.

She was then in Respect, and she is now a Conservative.

Dave summarises her blogpost and links to it at least twice. It is a sympathetic piece. The linking is in accordance with best blogging practice: anything he says can be checked and sourced against what she wrote about herself.


However, Ms Kaschke took exception to this blogpost.

Dave offered a right of reply and, as a courtesy, he took down the blogpost.


Then, at some point and for reasons which remain unclear, the earlier blogpost of Ms Kaschke is somehow deleted.

And then, over a year after Dave's original blogpost was published, Ms Kaschke sued Dave for libel.

She sued him not only for his blogpost, but also in respect of comments on the blogpost.

And, of course, Dave cannot refer back to her original blogpost, of which his blogpost was a gloss, because it was deleted.

Ms Kaschke maintains that she has no copy of that original blogpost.

In these circumstances, of course, it is almost impossible for Dave to properly defend himself.

The deletion of the original blogpost is really like a carpet being pulled.


For the last six months, Robert Dougans (also solicitor for Simon Singh) and myself have been assisting Dave with his defence on a completely pro bono basis. More recently we were supported by William McCormick, now a QC and one of Simon Singh's barristers.

And last month Robert Dougans spent a day on his feet in Court 13 before Mr Justice Eady.

Robert argued that her claim should be struck out (1) as an abuse of process, (2) as being outside the year limitation period, and (3) because the right of reply offered should have been the end of the matter.

He had an uphill battle.

Strike outs are rare in English libel litigation.

He is likely to have been unsuccessful.

If so, the full jury trial will be in autumn.

In the alternative, he argued that the defence should be completely amended and that Ms Kaschke should be ordered to provide a copy of the original blogpost.

This is more likely, but still not certain.


Judgment on these applications will be handed down at 10am tomorrow.

Any decision may have significance for all bloggers, not least on the circumstances where summarising and linking to material can expose one to legal liability, and the liability for blogposts and comments which are over a year old.

I will post the judgment as soon as I can.

I will tweet the result from outside Court 13.


I now set out Dave's original blogpost below not as an endorsement or adoption of any alleged defamatory meaning, but as an aid to understanding the significance of the judgment tomorrow.

Readers of this blog will, of course, understand that.

[Dave's original links are in bold italics.]


Respect member's "Baader-Meinhoff link"

Johanna Kaschke – recent defector from New Labour to Respect – was in the 1970s held in custody in her native Germany, charged with support for the ultraleftist Baader-Meinhof terrorist group.

Ms Kaschke – pictured left – denies any wrongdoing, although she admits to having organised some sort of benefit gig:

‘All I ever did was organise a music concert in the University of Würzburg Mensa. This got me sacked from my job in the University bookshop Schöning and I also then lost my home.’

She has recently launched a complaint against leading German news magazine Der Spiegel for an article it wrote three decades ago, naming her in this connection. Rather than trying to hide any of this, Ms Kaschke has commendably chosen instead to post a copy of the story on her own website. She goes on to write:

‘I can safely say I never met any of the other persons mentioned in the article and got released after three months of prison on remand and was paid compensation for wrongful arrest and imprisonment two years later.’

If we take this account at face value – and I have no reason not to – the worst she stands accused of is youthful folly. After all, many young attracted to far left politics in the 1970s were passively sympathetic to groups such as the Baader-Meinhof gang. Most have subsequently been rehabilitated.

Former Angry Brigade suspect Angela Mason these days boasts an Order of the British Empire gong and sits on quangos. Even I used to wear a Brigate Rosse T-shirt, as modelled by Joe Strummer. Ms Kaschke appears to have come to political terms with all this:

‘Frankly I cannot understand how such educated university graduates like the Baader Meinhof people fell for this illusion that the state is only a paper tiger and they can win an urban guerrilla war against them.

‘Now with al Qaeda again we have people believing they go to paradise after they blew themselves up and that they are good Muslims if they cause a lot of destruction.

‘Terrorism is the enemy of all Socialism as it creates exactly the opposite reaction, it makes the state more right wing and is likely to destroy all Socialist advances made by peaceful negotiation.

‘If I knew of someone planning a terrorist atrocity I would definitely report them to the authorities because it’s not right. I believe that people being put up to those guerrilla activities are being used by some people for exactly the purpose to create a right-wing movement.’


The thing is, she may find that not all of her new colleagues in Respect share her stance. Respect MP George Galloway, for instance, believes it would be morally justified for a suicide bomber to kill Tony Blair.”


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Podcast on the Paul Chambers case

This morning I recorded an interview with the UK's leading legal blogger Charon QC on the Paul Chambers case. You can hear it here.

Details of the fund launched to help Paul Chambers pay for any appeal are here.


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Tuesday, 11 May 2010

Paul Chambers: a Disgraceful and Illiberal Judgment

I set out below the decision of District Judge Jonathan Bennett that Paul Chambers was guilty of the offence of sending a menacing message via a public telecommunications network, contrary to section 127 of the Communications Act 2003.

Regular readers of this blog will know I rarely criticise judges. In two years following the Simon Singh libel case, for example, I never once directly criticised Mr Justice Eady.

However, I believe the judgment below is not only illiberal and incorrect.

I believe it is a disgrace.

But even more worrying is the revelation that the Crown Prosecution Service submitted that the offence needed no intention at all.

This means that any message sent via the internet - tweets, emails, posts, comments, videos, music files - will expose a person to potential criminal liability if the content of the message ever seems to the Crown Prosecution Service to be "of an indecent, obscene or menacing character" regardless of the intention of the person sending it; indeed, regardless of whether the message is ever received.

It is bad enough that a judge makes a very bad decision; but it is very serious indeed that the CPS actually sees Section 127 as not requiring any evidence of intention.

The CPS position on Section 127 is simply intolerable in a free society.


I now set out the judgment, which has been copy typed from image files kindly provided by the wonderful @CrazyColours.


R v Paul Chambers

1. This is an unusual case not least because all the facts are agreed. On January 6th this year Paul Chambers (the defendant) posted a message on his social networking site known as “Twitter”. The message was “Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!” This was in response to a news feed that he had just received that the airport was closed due to the weather conditions prevailing at that time. Subsequently this “tweet”, which was posted on the public timeline and thus was in theory available to anyone to view, was seen by Mr Duffield, the airport duty manager at Robin Hood airport. He saw it on January 11th and immediately notified security at the airport.

Subsequently the defendant was arrested and interviewed under caution at Doncaster police station on 13th January. There were two lengthy interviews. The defendant accepted he had posted the message into the public domain of “Twitter” but maintained he had never intended the message to be received by the airport or for them to take it seriously. He was subsequently charged with the following offence:

“On Wednesday 6th January 2010 at Doncaster sent by means of a public electronic communications network a message namely “Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!” that was grossly offensive or of an indecent, obscene or menacing character”.

Contrary to 127(1)(A) and (3) of the Communications Act 2003".


After a somewhat circuitous route, that need not concern me now, he pleaded not guilty. I heard today oral evidence from Mr Duffield and the defendant. All the other evidence was read in the form of agreed statements.


2. As in any criminal case the prosecution must prove that the defendant is guilty. The defendant does not have to prove his innocence. In a criminal trial the burden of proving the defendant’s guilt is on the prosecution.

How does the prosecution succeed in proving the defendant’s guilt? The answer is – by making me sure of it. Nothing less than that will do. If after considering all the evidence I am sure that the defendant is guilty, I must return a verdict of ‘Guilty’. If I am not sure, my verdict must be ‘Not Guilty’.


3. I have heard that the defendant is a man of good character. Of course, good character cannot by itself provide a defence to a criminal charge, but it is evidence which I should take into account in his favour in the following ways:

In the first place, the defendant has given evidence, and as with any man of good character it supports his credibility. This means it is a factor which I should take into account when deciding whether to believe his evidence.

In the second place, the fact that he is of good character may mean that he is less likely than otherwise might be the case to commit this crime now.


4. I turn now to the elements of the offence. The prosecution have to prove

- the sending of a message by public communications network.

Here the parties are agreed that a message was sent using the “Twitter” social networking site.

- that it was of a menacing character.

I have considered the word "menacing". The OED says menacing means of “a threatening quality”. The defence case, as put forward by Mr Haigh, is that I must look at the context of this remark. It cannot be viewed in isolation. The defendant, in particular, told me sought to send interesting “tweets”. They were generally friendly, the language can vary but he often uses hyperbole. He referred me to some examples of the “tweets” where both bad language and ridiculous suggestions were made. Furthermore the defence suggest it is a pointless proposition – what would be the point of blowing up an airport that isn’t open (see paragraph 5 of the defence skeleton argument).

Against this I have to consider the final part of the “tweet” – “otherwise I’m blowing the airport sky high”. The context is we live in a society where there are huge security concerns particularly in relation to airports and air travel. I do not need to repeat the very real incidents there have been in the UK in recent years let alone worldwide. With that background I can have no doubt that the remark posted by the defendant is menacing. His intention is of course different matter to which I now turn.

I now have to consider whether the prosecution have to demonstrate a particular state of mind to satisfy me the offence is made out. It is more than just an intention to send a message to another. [The prosecutor] in his skeleton argument seeks to persuade me that mens rea is not required for the offence beyond a simple intention to send the message (see paragraph 7 of the prosecution skeleton argument).

I have been referred to the case of DPP v Collins [2006] UKHL. This is a House of Lords case. In that case, which referred to “grossly offensive” conduct under s. 127, Lord Bingham touched upon the state of mind or mens rea of the offence. In paragraph 30 he raised the question:

“In contrast with section 127(2)(a) and its predecessor subsections, which require proof of an unlawful purpose and a degree of knowledge, section 127(1)(a) provides no explicit guidance on the state of mind which must be proved against a defendant to establish an offence against the subsection. What, if anything, must be proved beyond an intention to sent the message in question?”

He answered his question in the following paragraph:

""It is pertinent to recall Lord Reid's observations in Sweet v Parsley [1970] AC 132, 148:

"Our first duty is to consider the words of the Act: if they show a clear intention to create an absolute offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea."

"This passage is relevant here, since Parliament cannot have intended to criminalise the conduct of a person using language which is, for reasons unknown to him, grossly offensive to those to whom it relates, or which may even be thought, however wrongly, to represent a polite or acceptable usage. On the other hand, a culpable state of mind will ordinarily be found where a message is couched in terms showing an intention to insult those to whom the message relates or giving rise to the inference that a risk of doing so must have been recognised by the sender. The same will be true where facts known to the sender of a message about an intended recipient render the message peculiarly offensive to that recipient, or likely to be so, whether or not the message in fact reaches the recipient."


Lord Carswell agreed. He stated "I respectfully agree with the conclusion ...[of] Lord Bingham of Cornhill ... that it must be proved that the respondent intended his words to be offensive to those to whom they related or be aware that they may be taken to be so”. He also agreed that it can make no difference to criminal liability whether a message is ever actually received or whether the persons who do receive it are offended by it.

It is not sufficient for the prosecution to say this case is obiter dicta because the ratio of the case concerned the definition of “grossly offensive”. It is dealing with the very same sub-section. I find the case binding upon me. I therefore conclude that the prosecution must show some mens rea to satisfy me, to the requisite standard of proof, for me to find this case is proved.


5. The final issue for me to decide therefore is whether this part of the case is made out. The defendant has maintained in lengthy interviews and also in giving evidence before me today that he had no such intention. He points out the slim likelihood that anyone just on the “Twitter” site would ever see his posting.

However, I do not have to accept what the defendant tells me about his state of mind at face value. I also note the defendant is an experienced, and clearly very heavy user, of “Twitter”. Furthermore he has travelled by air, although he had not used Robin Hood airport previously. I found strange his evidence in relation to airport threats not seeming to relate to him and appearing to be in another world. Of particular significance is the fact that this “tweet” was posted to the public timeline, unlike most of his “tweets” in the time frame around this particular posting. This message would have been of particular significance to the lady known as “crazy colours” in Northern Ireland to whom the defendant was going to see on his air journey. He chose to post it in the public domain where in theory it was open for anyone to see, as indeed did Mr Duffield.


6. I am therefore satisfied, so that I am sure, that the defendant sent the message via “Twitter” and it was of a menacing nature in the context of the times in which we live. Furthermore I am satisfied the defendant was, at the very least, aware that this was of a menacing nature and I find him guilty of the offence.


Jonathan Bennett
District Judge (Magistrates Court)
Doncaster

10th May 2010




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