Pages

Saturday, 31 July 2010

What Happened to Lance Corporal Mark Aspinall?

Please see this.



Now read this.

Sickening and disappointing.

One wonders what the verdict on Special Constable Peter Lightfoot will be.


UPDATE - 2 AUGUST 2010

Peter Lightfoot has been found guilty of assault.

Astonishingly complacent IPCC statement is here. It was all just a training error it seems, and Mr Aspinall was basically just asking for it...


FURTHER UPDATE - 2 AUGUST 2010

Search for "Lightfoot" in the document here, which appears to pre-date the assault on Aspinall.



COMMENTS MODERATION


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

Oh, and remember the police frequently sue for defamation. However, if they choose to sue me, I will spend the next two or so years of my life seeking to extend the Derbyshire principle to cover statements about police officers in the performance of their duties...

Monday, 26 July 2010

Ian Tomlinson: Why No Cross-Examination?

Following on from my blogpost yesterday, can anyone explain why the conflicting post mortem reports could not be dealt with by means of cross-examination at a jury trial?

The CPS decision is here.


COMMENTS MODERATION

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

Sunday, 25 July 2010

Ian Tomlinson and Misconduct in Public Office

Let me introduce you to the offence of Misconduct in Public Office.

It is a "common law" offence, which means it was not created by statute.

It is not prosecuted very often, but the elements of the offence are as follows:

1. A public officer acting as such.

2. Wilfully neglects to perform his duty and/or wilfully misconducts himself.

3. To such a degree as to amount to an abuse of the public's trust in the office holder.

4. Without reasonable excuse or justification.



The CPS guidance on the offence is here.

You will note that this guidance states:

"for example, an assault by a police officer committed while on duty could also arguably be misconduct in public office"


Last week, the Crown Prosecution Service decided not to charge Simon Harwood with (amongst other offences) Misconduct in Public Office in respect of the death of Ian Tomlinson.

See this video for the circumstances of Mr Tomlinson's encounter with Mr Harwood, a thug and a disgrace to the police force.





Sickening.


In regard to the decision not to charge for the offence of Misconduct in Public Office, the CPS decision was as follows:

The CPS also considered the offence of misconduct in public office. The offence is committed when a public officer acting as such wilfully neglects to perform his duty and/or wilfully misconducts himself to such a degree as to amount to an abuse of the public's trust in the office holder without reasonable excuse or justification. The offence is, in essence, one of abuse of the power or responsibilities of the office held.

The offence of misconduct in public office cannot simply be used as a substitute for other offences and simply being a police officer who commits a criminal offence, even one of assault, does not, without some other aggravating factor, automatically amount to the offence of misconduct in public office. Mr Tomlinson's death would be an aggravating feature, but for the reasons already stated, the prosecution cannot prove a causal link between the alleged assault and the death to the criminal standard. The Court of Appeal has held that: "The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public's trust in the office holder." In addition: "It will normally be necessary to consider the likely consequences of the breach in deciding whether the conduct falls so far below the standard of conduct to be expected of the officer as to constitute the offence." The 'likely' consequences of pushing a person to the floor is that they may sustain some bruising. But, in this case, on the analysis of the medical evidence set out above, the CPS would not be able to prove beyond reasonable doubt that Mr Tomlinson's fall had caused him any injury.

As a result, we have concluded that the conduct of PC [Harwood] did not meet the high threshold required to constitute the offence of misconduct in public office.

In reaching a decision about misconduct in public office, the CPS also took into account the fact that the Court of Appeal has indicated that it would be wrong to charge misconduct in public office as an alternative to a charge of manslaughter in circumstances where the prosecution cannot prove the cause of death.



This seems problematic, and it is unconvincing.

So I will go through the material parts of the statement again.


"The offence of misconduct in public office cannot simply be used as a substitute for other offences and simply being a police officer who commits a criminal offence, even one of assault, does not, without some other aggravating factor, automatically amount to the offence of misconduct in public office,"

Note the deft use of the words "simply" and "automatically".

In fact, as we see above, the CPS's own guidance states "an assault by a police officer committed while on duty could also arguably be misconduct in public office".

In my view, this first quoted sentence gives a misleading steer.


"Mr Tomlinson's death would be an aggravating feature, but for the reasons already stated, the prosecution cannot prove a causal link between the alleged assault and the death to the criminal standard."

This again appears a red herring. As its own guidance states, an assault can be Misconduct in Public Office by itself.


"The Court of Appeal has held that: "The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public's trust in the office holder."

Watch the video.


"In addition: "It will normally be necessary to consider the likely consequences of the breach in deciding whether the conduct falls so far below the standard of conduct to be expected of the officer as to constitute the offence." The 'likely' consequences of pushing a person to the floor is that they may sustain some bruising."

That would be hitting a man with a baton, and then forcefully pushing him unexpectedly and from behind onto the concrete pavement whilst his hands were not able to break his fall.


However, the relevant leading authority states:

58. It will normally be necessary to consider the likely consequences of the breach in deciding whether the conduct falls so far below the standard of conduct to be expected of the officer as to constitute the offence. The conduct cannot be considered in a vacuum: the consequences likely to follow from it, viewed subjectively as in G, will often influence the decision as to whether the conduct amounted to an abuse of the public's trust in the officer. A default where the consequences are likely to be trivial may not possess the criminal quality required; a similar default where the damage to the public or members of the public is likely to be great may do so. In a case like the present, for example, was the death or serious injury of the man arrested the likely consequence, viewed subjectively, of inaction, or was it merely an uncomfortable night? There will be some conduct which possesses the criminal quality even if serious consequences are unlikely but it is always necessary to assess the conduct in the circumstances in which it occurs.

59. The consequences of some conduct, such as corrupt conduct, may be obvious; the likely consequences of other conduct of public officers will be less clear but it is impossible to gauge the seriousness of defaulting conduct without considering the circumstances in which the conduct occurs and its likely consequences. The whole should be considered in the context of the nature of the office and, as Sir Anthony Mason stated in Shum Kwok Sher, the responsibilities of the office and office holder.



Accordingly, the one has to consider the circumstances in which the conduct occurs and its likely consequences.

Forcefully pushing a defenceless man down from behind without warning is likely to cause serious injuries, especially when the man has had his leg smashed with a baton and his hands are in his pockets.

In my view, the CPS has misdirected itself on this point.

Furthermore, the requirement of "consequences" is not expressly part of the elements of the offence; it instead goes to what "wilful" means.


"In reaching a decision about misconduct in public office, the CPS also took into account the fact that the Court of Appeal has indicated that it would be wrong to charge misconduct in public office as an alternative to a charge of manslaughter in circumstances where the prosecution cannot prove the cause of death."

This is also misleading.

What the Court of Appeal actually said was:

"...we do not consider that, in future, in circumstances such as the present, a charge of misconduct in public office should routinely be added, as an alternative, to a charge of manslaughter by gross negligence on the basis that it may be difficult to establish causation."

That is, that the charge should not be routinely added to a charge as an alternative. There is no reason not to charge it by itself.

(I am assuming that this is the Court of Appeal decision to which the CPS are referring.)


Of course, Mr Harwood should face a charge of Manslaughter or GBH. The conflicting evidence of the post mortems is a matter for a jury to determine.

On the case more generally, I agree with outstanding article by George Monbiot.

But on the narrow point of the CPS's reasoning for there being no charge for Misconduct in Public Office, I am afraid that it is in my view misleading and unconvincing.

For it seems clear to me that on that day Simon Harwood wilfully misconducted himself to such a degree as to amount to an abuse of the public's trust in him as as a police officer without reasonable excuse or justification.

And that's criminal.



COMMENTS MODERATION

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

Saturday, 24 July 2010

Victory for Gray and Hilton

The misconceived libel claim against Labour bloggers John Gray and Alex Hilton has been struck out for abuse of process.

(In this case I assisted Robert Dougans, who acted (brilliantly) for Alex.)

The judgment is now on-line, and it should be read in full by every blogger subject to the jurisdiction of the High Court.

I plan to write an analysis of the judgment, and its implications for bloggers and their webhosts, in the next week or so.

In the meantime, please leave below any comments and questions about the judgment.


COMMENTS MODERATION

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

ANY COMMENTS CRITICISING THE CLAIMANT WILL NOT BE PUBLISHED

Friday, 23 July 2010

The background to the Gray and Hilton libel case

At about 2pm this afternoon the High Court will rule on whether the libel claim against Labour bloggers John Gray and Alex Hilton can be struck out for abuse of process.

My friend Robert Dougans, who of course acted for Simon Singh, is formally representing Alex Hilton, and I am in turn one of the lawyers helping Robert Dougans.

To understand why this strike out application - and the case as a whole - matters for all bloggers subject to the jurisdiction of the London High Court, one has to go a little into the background to the claim.


In the 1970s the Claimant lived in West Germany.

One day, without having done anything wrong, she was arrested and imprisoned.

She was detained, mainly in solitary confinement, for six months.

The arrest warrant - quite wrongly - mentioned the suspicion that she was somehow involved in a criminal gang which was in turn connected to terrorism.

There was of course nothing in this suspicion, and she was released without any conviction and was paid a substantial amount in compensation for wrongful imprisonment.

However, when she was released, the German high-circulation magazine Der Spiegel quite wrongly listed her along with actual terrorists in a lengthy article.

It would be fair to say that the Claimant had been treated extremely badly by both the West German state and mainstream media. It really must have been the most horrendous and traumatising experience.

The Claimant soon after moved to England, got married and raised a family.


Some thirty years later, the Claimant starts blogging. Sometimes this was to do with her business activities, sometimes about her views on public affairs, and sometimes she wrote about her experiences, including the wrongful arrest and how she was treated by Der Spiegel.

However, the Claimant is also becoming politically active. She joins the Labour Party and seeks to be a candidate for Parliament. She fails, and then announces she is joining the Respect Party.

At this point, Labour Party blogger Dave Osler writes a blogpost about the Claimant.

Dave is a professional journalist and his blogpost, which links back to a particular webpage written by the Claimant, is both responsible and sympathetic. It is contained in my blogpost here.

John Gray then blogs about the Claimant, linking to both Dave's blogpost and the Claimant's original page. John then posts the same blogpost on Labour Home, which was run by Alex Hilton.


This greatly upsets the Claimant.

What particularly upsets her is that both Dave and John refer to Baader-Meinhoff.

It is clear that the reason they refer to that particular terrorist group is that the Claimant mentions them herself on her webpage.

After correspondence, deletions of the posts, and offers of rights of reply, the Claimant proceeds to sue Alex and John for libel, and she also sues Dave for libel in a separate action.

At some point the webpage to which both Dave and John link is removed. This means that they are unable to refer to the very page they were linking to and summarising as part of their defence.


In May this year, Robert was able to get the case against Dave stuck out for abuse of process. This was on two grounds. First, the Claimant had brought the claim outside the limitation period and could not show that Dave's blogpost had been read (ie published) outside of that period.

Second, Robert was able to show Mr Justice Eady that on what appeared to to be the agreed facts, what the Claimant had published about herself was so close to what Dave had written that, to use the lawyer's phrase, the "game was not worth the candle".


One would think that following the successful strike out of the claim against Dave, a strike out of the claims against John and Alex would be a formality.

However, at the strike out application earlier this month, the Claimant disputed or did not accept a range of facts which had previously been thought agreed.

This meant that Robert had to abandon any reliance on the extensive witness evidence we had collected setting out what her original website had said.

(Once that evidence was in dispute, it could not be accepted by the court without the Claimant having the right to cross examine the witnesses.)

There was simply no way the High Court could now strike out the libel claim against John and Alex on the same basis as it had struck out the claim against Dave.

So unless we could establish an alternative basis for a strike out, then the claim would have to proceed to trial (or at least there would have to be another hearing to give the Claimant the opportunity to cross examine the witnesses).

So, on his feet (with me behind him frantically scouring cases, textbooks and other documents - and also with the input of William McCormick QC - Simon Singh's barrister - who luckily happened to pop in just to see how Robert was doing), Robert had to instantly piece together a very complex submission, not covered entirely by previous case law, and which relied on statements which the Claimant could be shown to have made herself.

At 2pm today we find out if he was successful.

If he is not, then the case is likely to now proceed to a two week jury trial where John and Alex will be exposed to an award of damages which could bankrupt them. After all, this is (on one view) an allegation of suspicion of being involved in terrorist offences.

This blog will then loudly adopt this case, as it did with the misconceived case brought by the (now discredited) British Chiropractic Association, as the basis for why libel reform is required.

If Robert is successful, then it will be a great relief for John and Alex (and for Robert, who really did not enjoy his two days in Court), but libel reform will still be needed.

There was nothing inherently wrong for the Claimant to seek to bring a claim if she thinks she has been defamed.

However, for hearing after hearing, this claim has been allowed to proceed, and had it not been for the intervention by Robert and me, would have by now proceeded to full trial.

And, notwithstanding Robert's sterling efforts, the High Court may decide that because of the new disputes over evidence, it is just not in a position to strike out this case.

If so, John and Alex will have to endure a lengthy jury trial and the real prospect of personal bankruptcy, over a blogpost which (in my opinion) did nothing wrong.

The villain in all this is not the Claimant.

It is the libel system in this country that allows claims like this to get so far.

If the claim is struck out today it will be because a specialist libel lawyer was able to put together a highly sophisticated submission which would have been beyond even a generalist media lawyer (like me), let alone a litigant in person.

And if it not struck out, then we have a system of libel which allows bloggers who have done nothing wrong to be sued to the point of potential bankruptcy.

There is something wrong about the law of libel which is allowing this to happen.


Whatever the result today - and I am an invariable Tigger to Robert's relentless Eeyore about this application, and indeed any of Robert's libel work - it is a "fail" for libel law.

So please, if you have not already, go now to www.libelreform.org and sign the petition to keep the pressure on for libel reform to become a reality.


COMMENTS MODERATION

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


ANY COMMENTS CRITICISING THE CLAIMANT WILL NOT BE PUBLISHED

Thursday, 22 July 2010

The meaning of #StupidScientology

Let me introduce you to Councillor John Dixon of Cardiff Council.


You will like him.

On 9 May 2009, John Dixon came to London, and on that day he walked down Tottenham Court Road.

As he walked past one particular shop, he tweeted the following:

"- didn't know there was a Scientology 'church' on Tottenham Court Road. Just hurried past in case the stupid rubs off."


It was a tweet: an inconsequential electronic communication to whomsoever followed him on Twitter that day.

Indeed, it would only have been read by those followers who happened to have been checking Twitter either at the time he tweeted it or for a few hours afterwards.

The tweet would then, in effect, disappear from view on the Twitter platform.

And, in real life, John Dixon just carried on walking down Tottenham Court Road.


Now let me introduce you to the Church of Scientology in the United Kingdom.

I will leave you to form your own opinion of them, to be expressed once you have received legal advice.


One member of this organisation, which is of course NOT recognised as a "church" in the United Kingdom, did some searches of Twitter.

Presumably he used the search terms "Scientology" and perhaps "Church".

Or perhaps he used the search terms "Scientology" and "stupid".

We just do not know.


But we do know he was not a follower of Dixon's account when Dixon tweeted, and so he could not have read it when it was originally published.

Instead, the Scientologist must have been searching for tweets and when he saw Dixon was a councillor, he thought this was worthy of taking further.

(This sort of retrospective searching for tweets to then take offence at or action about is, of course, what got Paul Chambers into trouble; and it is similar to those early hour searches which must have led @gillianmckeith to pester a twitterer daring to enjoy Ben Goldacre's Bad Science.)


And so, with searches complete, a complaint was made in December 2009, some seven or so months after Dixon walked down Tottenham Court Road on that May day.


In what context should we see this complaint by the Scientologist? What is the nature of Church of Scientology? And what is the approach of the Church of Scientology to legal threats and complaints?

It could be that Scientologists are concerned and active citizens, helpfully monitoring social media for transgressions of Codes of Conduct.

However, the context I suggest could be as follows.

The Church of Scientology was once described by the High Court on 23 July 1984 in the following terms:

"Scientology is both immoral and socially obnoxious. [A party's lawyer] did not exaggerate when he termed it "pernicious".

"In my judgement it is corrupt, sinister and dangerous.

"It is corrupt because it is based on lies and deceit and has as its real objective money and power for Mr. Hubbard, his wife and those close to him at the top.

"It is sinister because it indulges in infamous practices both to its adherents who do not toe the line unquestioningly and to those outside who criticise or oppose it.

"It is dangerous because it is out to capture people, especially children and impressionable young people, and indoctrinate and brainwash them so that they become the unquestioning captives and tools of the cult, withdrawn from ordinary thought, living and relationships with others."



At this point, I would like to emphasise that, in substantive terms, I personally do not view Scientology as any more or less credible as any other religion; though I am an atheist, I am not strongly anti-religious; I am just anti-abuse of legal power.

And so if it were not for their demonstrable propensity to misuse legal threats, then I would not have any interest in Scientology at all.


For it is demonstrable that Scientology repeatedly uses and misuses litigation - and especially the threat of litigation - against any criticism.

As L Ron Hubbard, the founder of Scientology, stated:

"The purpose of the suit is to harass and discourage rather than win. The law can be used very easily to harass, and enough harassment on somebody who is simply on the thin edge anyway, well knowing that he is not authorized, will generally be sufficient to cause professional decease. If possible, of course, ruin him utterly."



Awww, bless.


The problem with this approach, as I once pointed out to the (now discredited) British Chiropractic Association, is that one really should only threaten litigation if one can go through with it.

A threat of litigation is not an end in itself.

And so, again and again, the Scientologists have gormlessly threatened litigation, only for it to backfire.

For threats of litigation can lead to actual litigation.

And with actual litigation comes the disclosure (and sometimes publication) of evidence, cross-examination of evidence (in open court), and court judgments (which, of course can be published with absolute privilege).

Accordingly, one would expect that litigation - and regulatory complaints - would be the last thing an entity which values confidentiality and privacy like the Church of Scientology would want to get involved in.

Litigation would lead to exposure and scrutiny of all the things which they wish to keep from public view.

But they simply cannot help themselves, as they seem to like harassing critics so to get their way.

And it is in this context that I suggest we consider the complaint made against Councillor Dixon, though of course, I could be wrong.



We return to the complaint made of Councillor Dixon by the concerned Scientologist.

It read:

"To whom it may concern.

"I am writing to bring your attention to some derogatory comments made toward my religion of Scientology, such as:

"http://twitter.com/JohnLDixon/statuses/1746848544

"4:25 PM may 9th from Tweetie: ""- didn't know there was a Scientology 'church' on Tottenham Court Road. Just hurried past in case the stupid rubs off."

"I'm certain I saw other similar comments made by him but cannot prove this as they no longer seem findable in Google, which I am very happy about.

"I find bigotry unacceptable in anyone but even more so in persons in positions of responsibility who should know better, such as Cllr John Dixon."



It is an interesting letter, not least because the complainant (who I do not propose to identify and do not need to) lives in East Grinstead, in East Sussex.

The telling reference to Google suggests that the complainant was indeed simply searching for things to complain about.

So, in December 2009, a Scientologist resident of East Grinstead makes a complaint about a Cardiff councillor about a tweet sent on the Tottenham Court Road seven months before.

The complaint is received by the appropriate "Ombudsman" on Christmas Eve.


The complainant's cover letter, in handwriting, emphasises the complaint is in response to the formal query "How do you think they [the councillor] have broken the code of conduct":

"The dgatory [sic, derogatory] remark made by Cllr Dixon in a tweet (on twitter) at 4.25pm May 9th against the Church of Scientology and scientologists is a breach of Principle 70 "Equality + respect" Schedule 3 of the Welsh Statutory Instrument 2001 No. 2276 (W. 166) - The Conduct of Members (Principles) (Wales) Order 2001."


Here I can do no other than set out the Ombudsman's response to this clearly opportunistic complaint.

It is now for your to form your own view on the Ombudsman's response; however, I regard it as nothing less than utterly witless and illiberal, a document which is horrifying in how - in paragraph after paragraph of deadening bureaucrat-speak - an elected representative is held not to be allowed to criticise Scientology.


PUBLIC SERVICES OMBUDSMAN FOR WALES

Report by the Public Services Ombudsman for Wales on the investigation of an allegation made against Councillor Dixon of Cardiff Council, of a breach of the Council's statutory code of conduct for members


THE ALLEGATION INVESTIGATED

1. On 24 December 2009 I received an allegation from [Complainant] that Councillor Dixon had failed to observe the code of conduct for members of Cardiff Council. It was alleged that Councillor Dixon had made disrespectful comments about Scientology on a social networking website (Twitter'). A copy of the allegation is attached at Annex A.


LEGAL BACKGROUND

2. As required by Part III of the Local Government Act 2000 (the Act), Cardiff Council has adopted a code of conduct for members which incorporates the provisions of a model code contained in an order made by the Welsh Ministers. A copy of that code is at Annex B. Council members are required to sign an undertaking that, in performing their functions, they will observe the Council's code of conduct. Councillor Dixon gave such an undertaking on 2 May 2008. A copy of that declaration is attached at Annex C.

3. Section 69 of the Act provides the authority for my investigation and the production of this report.


MY INVESTIGATION

4. During the course of my investigation, I have considered the following Principles and paragraphs of the Code of Conduct:


Principle

"Equality and Respect

Members must carry out their duties and responsibilities with due regard to the need to promote equality of opportunity for all people, regardless of their gender, race, disability, sexual orientation, age or religion, and show respect and consideration
for others ".

Paragraph 2(1) of the Code:

"...You must observe t his code of conduct-

(a) whenever you conduct the business, or are present at a meeting, of your authority;

(b) whenever you act , claim to act or give the impression you are acting in the role of member to which you were elected or appointed;

(c) whenever you act, claim to act or give the impression you are acting as a representative of your authority; or

(d) at all times and in any capacity, in respect of conduct identified in paragraphs 6(1)(a) and 7".

Paragraph 4(b):

" You must-

Show respect and consideration for others".

Paragraph 6(1)(a):

"You must not conduct yourself in a manner which could reasonably be regarded as bringing your office or authority into disrepute".


5. Councillor Dixon was accordingly put on notice of my intended investigation on 15 January 2010 (Annex D).

6. During my investigation I have obtained copies of three postings Councillor Dixon made on Twitter concerning Scientology (Annex E). I have also obtained a copy of training records from Cardiff Council which showth at Councillor Dixon attended Code of Conduct training on 25 June 2008 (Annex F).

7. I have given Councillor Dixon the opportunity to consider the complaint against him before asking him to respond to my questions (Annex G). I have given Councillor Dixon the opportunity to comment on a draft of this report which included my provisional views and finding. Councillor Dixon chose to make no comment.


MY GUIDANCE DECIDING WHEN THE CODE APPLIES TO MEMBERS

8. I have issued statutory guidance on the code of conduct and in that guidance I stated in relation to members that,

"the Code applies to you:

- Whenever you act in your official capacity, including whenever you are conducting the business of your authority or acting, claiming to act, or give the impression
you are acting, in your official l capacity as a member or as a representative of your authority.

- At any time, if you conduct yourself in a manner which could reasonably by regarded as bringing your office or your authority into disrepute or if you use or attempt to use your position to gain an advantage or avoid a disadvantage for yourself or any other person or if you misuse your authority's resources.

...If you refer to yourself as councillor, the Code will apply to you. This applies in conversation, in writing, or in your use of electronic media. For example, if you have a blog or use Twitter or another social networking service in your role as councillor, then the Code will apply to any comments you make there. Even if you do not use your title, if the content is clearly related to your role, the Code will apply".


TREATING OTHERS WITH RESPECT AND CONSIDERATION

"You must show respect and consideration for others...Members should always treat members of the public courteously and with consideration. Rude and offensive behaviour lowers the public's expectations and confidence in its elected representatives. This is the case in face to face settings such as meetings as well as when communicating by phone, letter, email or other electronic
means".


DISREPUTE

"You must not behave in a way which would reasonably be regarded as bringing your office or authority into disrepute at any time... you should be aware that your actions in both your public and private life might have an adverse impact on your office or your authority...your actions and behaviour are subject to greater
scrutiny than those of ordinary members of the public".


EVENTS LEADING TO THE ALLEGATION AS ESTABLISHED BY MY INVESTIGATION

9. [Complainant] said in his complaint form dated 18 December 2009 that Councillor Dixon had made a, "derogatory remark in a tweet (on Twitter) at 4.25pm May 9th [2009] against the Church of Scientology and Scientologists". He said that this amounted to a breach of the principle of the code of conduct regarding equality and respect.

1O. In a letter attached to the complaint, [Complainant] said, "I'm certain I saw other similar comments made by [Councillor Dixon] but cannot prove this as they no longer seem to be findable in Google, which I am very happy about. I find bigotry unacceptable in anyone but even more so in persons in positions of responsibility who should know better, such as Cllr John Dixon".

11. In an e-mail to my office dated 10 January 2010, Councillor Dixon enclosed what he described as "the complete record " from his Twitter account. Included within that record were the following 'posts':

"-didn't know there was a Scientology 'church' on Tottenham Court Road. Just hurried past in case the stupid rubs off' (4.25pm May 9th , 2009)

"-just noticed the Scientologis ts are following me on Twitter. Quick, everyone hide and pretend you're out!" (9.16pm May 18th , 2009)

"-just noticed I've got homeopaths joining the scientologists following me now. I can set up my own branch of Ofquack soon!" (11.22pm July 16th,2009)

(Appendix E)


WHAT COUNCILLOR DIXON SAID IN RESPONSE TO THE ALLEGATION

12. In his e-mail to my office dated 10 January 2010 which attached "the complete record" from his Twitter account (Annex G), Councillor Dixon said that a few days after the particular posting identified by [Complainant]in his complaint, he "noticed that the "Church of Scientology" was following [his] account". He added that he had not taken action to prevent them from doing so. Councillor [Dixon] said he had not, "singled out Scientology for particular criticism " and that he is "critical of anything that is not evidence-based - homeopathy, crystal healing , chiropractic , and nutritionists included ".

Councillor Dixon added,

"To my knowledge, [the Scientologists] have not approached the Council's Monitoring Officer, or the Council's Standards and Ethics Committee, my own Council Group or the Welsh Liberal Democrats" in relation to the matters complained about.

13. In his response to the complaint, Councillor Dixon confirmed that his Twitter identity is "CllrJohnDixon" and that he is responsible for the three "posts" in question.

14. Councillor Dixon said that he has been an elected member since 1999 and that he has most recently agreed to abide by the code of conduct following his election in 2008. Councillor Dixon confirmed that he has attended training arranged by Cardiff
Council on the code of conduct and is, "fully aware of, and takes seriously, [his] responsibilities" in that regard .

15. In relation to the alleged breach of the code of conduct Councillor Dixon said that,

"I do not accept that these posts breach the code of conduct in regard of either paragraph 4(b) or 6(1)a. Para 4(b) only applies under General Provisions 2(1) and paras (a) through (c) clearly do not apply in these circumstances, as I was clearly commenting in a private capacity" (see paragraph 5 of this report).

"I do not accept that para (d) applies, as the comments are not of a nature which would bring my office or authority into disrepute, as per 6(1la, nor are they in breach of paragraph 7, to secure a personal advantage or misuse the resources of the authority".

16. Councillor Dixon's response continued over three pages to set out his views on the "Church of Scientology" and seemingly to advance his reasons for not recognising Scientology as a religion.

Councillor Dixon added,

"While not wishing to assign motives to the complaint, I do find it curious that, despite obviously being aware of the post in question within a matter of days, they took six months to complain about it despite the grave offence which they felt I caused them . I am not particularly difficult to find- being the top Google hit for "'John Dixon" councillor adamsdown' - so the issue can't have been in identifying
the source".

17. When asked if he wished to make any additional comments aside from the specific question posed, Councillor Dixon said that,

"I do not recognise Scientology as a religion , and neither is it recognised as such in the UK by the Charities Commission. Even so, I do not accept that Para 4(b) applies in this case for reasons given above, and would argue that there is no issue raised under para 6(1 )a in any event".


UNDISPUTED FACTS

18. Councillor John Dixon is a member of Cardiff Council.

19. Councillor Dixon signed his acceptance of the code of conduct of Cardiff Council on 2 May 2008.

20. Councillor Dixon's Twitter identity is "CllrJohnDixon".

21. Councillor Dixon was responsible for the three Twitter 'posts' in question concerning Scientology (Annex E).


DISPUTED FACTS

22. Was Councillor Dixon bound by the code of conduct when he made the Twitter postings concerning Scientology?

23. If so, did Councillor Dixon fail to show respect and consideration to Scientologists in making his comments?

24. If so, has Councillor Dixon conducted himself in a manner which could reasonably be regarded as bringing the office of member into disrepute?


ANALYSIS OF EVIDENCE

Was Councillor Dixon bound by the code of conduct when he made the Twitter postings concerning Scientology?

25. Comments made by Councillor Dixon in his response to questions posed by my office suggest that he considers his Twitter postings were not made in his official capacity. Councillor Dixon said that, "para 4(b) only applies under General Provisions 2(1) and paras (a) through (c) clearly do not apply in these
circumstances, as I was clearly comme nting in a private capacity". Later in his response, Councillor Dixon has referred to his postings as being, "quite clearly, whimsical comments, made in a private capacity".

26. Paragraph 2(1)(b) of the Code says that members must observe the Code whenever they act, claim to act or give the impression they are acting (my emphasis) in the role of member to which they were elected or appointed. In his response to the complaint, Councillor Dixon confirmed that his Twitter identity is "CllrJohnDixon". In light of this and in referring to himself as a Councillor in this way, the evidence suggests to me that Councillor Dixon gave the impression that he was acting in his role of member.

If so, does the fact that Councillor Dixon made the three Twitter postings in question mean that he has failed to show respect and consideration to Scientologists?

27.1 expect members to be respectful and show consideration to all members of the public and their views, whether or not their own views may conflict with those held by a member/s of the public.

28. ln his response to the complaint, Councillor Dixon attempted to justify the comments he made about Scientology on Twitter by way of providing case law and other examples which he apparently feels show that Scientology is not a religion. Councillor Dixon also outlined his view that the content of the postings he made were, "fair comment" and were not therefore disrespectful to the complainant or to Scientologists in general.

29. Councillor Dixon also said that, "The views of the "Church of Scientology" on freedom of association, freedom of press, freedom of speech, sexual orientation
and race are in direct opposition to my own, and those who believe in liberal democracy (meant in terms of the nature of society, rather than a political party)".

30. Councillor Dixon has commented upon the reasons he considers the complaint has been made and says that he feels that in making the complaint, my office has been "used" by the Scientologists for a predetermined purpose with some connection to their stated aims.

31. The complainant has described Councillor Dixon's 'posts' as "derogatory" and has said he finds "bigotry unacceptable in anyone but even more so in person in positions of responsibility" in reference to Councillor Dixon's actions. If so, does the fact that Councillor Dixon made the three Twitter postings in question mean that he has conducted himself in a manner which co uld reasonably be regarded as bringing his office into disrepute?

32. Councillor Dixon has confirmed that the postings were made under his Twitter identity, "CllrJohnDixon". Councillor Dixon has also said that whilst he does not accept that he was acting in his official capacity in making the Twitter postings, he does not in any event consider that his postings raise any issue under paragraph 6(1)(a) of the code as his comments, "are not of a nature which would bring my office or authority into disrepute". It appears to me that Councillor Dixon may take this view as he considers that what he said in his Twitter postings was "fair comment" and supported by information such as that contained within the response to the questions posed by my office.

33. The comments made by Councillor Dixon were publicly available on the Twitter website and I note that the complainant refers to them being revealed as a result of a 'Google' internet search . In my view, it would have been clear to those viewing the 'posts' in question that Councillor Dixon was a member in light of the identity he used.


CONCLUSIONS

34. Councillor Dixon has told me that he has been an elected member for over ten years and that he has most recently agreed to abide by the Code following his election in 2008 . I have seen a copy of the Council's training records and Councillor Dixon has attended training on the Code in June 2008. Councillor Dixon has also told me that he is "fully aware of, and takers] seriously [his] responsibilities" under the Code. I am however concerned that a member who has served his community for over ten years and has recently attended training does not appear to understand the provisions of the Code, particularly paragraphs 2(1)(b), 4(b) and 6(1)(a). I also note that Councillor Dixon has not shown any remorse for his actions.

35. Despite Councillor Dixon's stated opinion that the comments he made on Twitter were made in a "private capacity", Councillor Dixon referred to himself as a Councillor by using the identity "CllrJohnDixon". Councillor Dixon's decision to do this ensured that he was acting in or at the very least gave the impression that
he was acting in his official capacity and any comments he made using that media including the 'posts' concerning Scientology were subject to the Code, further to paragraph 2(1)(b) given that Councillor Dixon had claimed or given the impression (my
emphasis) he was acting in his role as member.

36. I expect members to be respectful and show consideration to all members of the public and their views, whether or not their own views may conflict with those held by a member of the public. It is entirely appropriate for a member to question the views or beliefs of others, but they must be done in a way which shows respect
and consideration to those holding contrary views. Whether or not Councillor Dixon regards Scientology as a religion, others do, and while I would not wish to prevent Councillor Dixon challenging those views, the means of challenge in this case in
my view falls below the standard expected from a member. Members are also required to promote equality of opportunity for all people regardless of their religion and in not showing respect to views held by a member of the public which they regard as
religious, a member may also be in breach of this Code principle.

37. I am concerned at Councillor Dixon's apparent view that it is acceptable to publish his views on Scientology on a social networking website because he does not recognise Scientology as a religion, the views held by Scientologists are contrary to his own and what he had to say in his opinion was "fair comment and ..[falls] well short of other accusations which have been upheld in court judgements worldwide". Whilst Councillor Dixon is entitled to express his views on the matter, he must ensure that in doing so he is not in breach of the Code provision to show
respect and consideration to others (paragraph 4(b)) and the principle of equality and respect.

38. Councillor Dixon also felt it appropriate to include in his response reasons why he considers the complaint was made to my office. It appears to me that Councillor Dixon believes that the complaint has been motivated by a desire to achieve the policy aims of Scientology. There may be an inference drawn from Councillor Dixon's comments that he feels the motivation for the complaint being made to my office and the aims of Scientology should be considered in the context of the comments themselves and the alleged breaches, which would then justify his comments being made.

39. The evidence suggests to me that Councillor Dixon's posts may amount to a breach of paragraph 4(b) of the code. I also take the view on the basis of the available evidence that Councillor Dixon's conduct may be contrary to the Code principle regarding equality and respect as he has made disrespectful comments about views or opinions held by a member/s of the public, particularly as those comments have been published and as those comments relate to something recognised by members of the public as a religion.

40. The inclusion of Councillor Dixon's comments on Twitter meant that they were widely available to the public . In my view, the context in which these comments were made is more serious than if those comments had been made privately. It may also be
the case that the impact of Councillor Dixon's comments on the complainant has been greater, given the publication of the comments on the website. I note that the complainant has indicated in a letter which accompanied the complaint form that
he was "very happy" that he was, at the point of submitting the complaint, no longer able to find additional comments made by Councillor Dixon via a 'Google' search on the internet.

41. I also take the view that Councillor Dixon's behaviour may have brought the office of member into disrepute. Councillor Dixon posted his comments when using the identity 'CllrJohnDixon'. I consider that those comments were disrespectful and making disrespectful comments about views held by a member of the public whilst holding yourself out as a member, will necessarily negatively impact upon the public perception of that office .

42. I am aware that members increasingly choose to use social networking websites such as Twitter as a means of communication. In doing so, members must be aware that all comments they make are published and attributable to them. They must be particularly alert to paragraph 4(b) of the Code and ensure that they are respectful and courteous to others in what they say. If members to do not adhere to paragraph 4(b) of the Code and the Code principle to promote equality of opportunity for all people, it may be that they also act in breach of paragraph 6(1)(b) and bring the office of member into disrepute.


FINDING

My finding under section 69 of the Local Government Act 2000 is that my report on this investigation should be referred to the Monitoring Officer of Cardiff Council, for consideration by the Council's Standards Committee.




Breathtaking.

The Ombudsman's decision was then reported on Wales Online.

And then early on 20 July 2010, an anonymous emailer sent me the Wales Online link and, after basic verification, I posted the link and repeated the Tottenham Court Road tweet.

I also quickly coined the hashtag "#StupidScientology".

This was taken up by Dr Evan Harris and Simon Singh, and then many others.

By lunctime there were thousands of tweets mentioning #StupidScientology.

And by the end of the day...




So what does all this mean?

What have the events connected to #StupidScientology changed, if anything?

It may be too early to tell.

However, it appears to me that the #StupidScientology affair has two significant elements.


First, it appears that people are simply no longer scared by the aggressive and threatening tactics of the Scientologists.

Though I offered to provide pro bono legal help to anyone brave enough to "re-tweet" my initial #StupidScientology tweets, it soon became clear that such comfort was not going to be needed.

And I suspect the Scientologists' lawyers realise that their old methods of intimidation may no longer work when the sheer speed of Twitter and the blogosphere can almost-immediately make certain types of legal threats seem redundant.

There is, of course, some scope for their old methods to be employed, especially against the mainstream media; but the terms of overall engagement may now have changed.


Second, and less heartening, we seem in the United Kingdom to be in the counter-intuitve position that our locally-elected representatives have a narrower right to free expression than either their voters or Members of Parliament.

This cannot be right.


This blog will now follow the progress of this misconceived complaint against Councillor Dixon.

In my opinion, Councillor Dixon is a credit to free thought and local government - for his performance on Newsnight, and for his defiant response overall to the complaint.


This blog will also monitor closely any further attempts by Scientologists to apply their aggressive and threatening manner to free discussion on any social media.


(And, on a personal note, nothing will ever take away from the incredible joy of watching Kirsty Wark read out on BBC Newsnight the hashtag #StupidScientology. Yay! :-) )


COMMENTS MODERATION

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

PLEASE DO NOT NAME OR DEFAME THE COMPLAINANT OR ANY OTHER INDIVIDUAL SCIENTOLOGIST.

Wednesday, 14 July 2010

The Integrity and Honesty of @gillianmckeith

Let me introduce you to @gillianmckeith.

This is a Twitter account in the name of Gillian McKeith.

There is no doubt that it is the official Twitter account of Ms McKeith. For example, until earlier today her official website linked to it. And so did her official YouTube account.

So, as I said, there can be no doubt that @gillianmckeith is the official Twitter account of Ms McKeith.


Less clear, however, is who sends tweets from that Twitter account.

The obvious candidate would be Ms McKeith. Many of the tweets are in the first person and refer to personal and family matters.

But there may be others who have control and conduct of her account from time to time.

In any case, it would be safe to assume that whoever it is, they tweet on behalf of Ms McKeith.

As I cannot - with certainty - state who tweets as @gillianmckeith then I will refer to that person simply as "@gillianmckeith" - that is the person who is tweeting as Ms McKeith, even if Ms McKeith is not immediately aware of the tweets herself.


But why does this matter?

Well, the conduct of the @gillianmckeith account may be raising questions as to the integrity and honesty of Ms McKeith herself.

It can be demonstrated (in now deleted tweets) that @gillianmckeith accused Dr Ben Goldacre of publishing lies in his book Bad Science.

Dr Goldacre may be many things, but there is no question as to his integrity and honesty.

An accusation of dishonesty against Dr Goldacre, who emphasises an evidence-based and transparent approach, is a fairly serious allegation.

To my mind, Dr Goldacre was libelled by that tweet of @gillianmckeith.

And unless she can justify it, or defend it as a fair comment, he could proceed to sue the author of that statement.

(It is to his credit that he says that all he would want is a tweet saying that there are no lies in Bad Science.)


So the official Twitter account of Ms McKeith accuses Dr Goldacre of publishing lies.

However, it cannot be shown that the tweets were those of Ms McKeith directly but they were at least sent by someone on her behalf. There certainly was no subsequent apology for the libel; instead the tweets were just deleted.

By raising the issue of the integrity and honesty of Dr Goldacre, it is arguable that the author of the accusation also implicitly raised the issue of the integrity and honesty of Ms McKeith.


This is important for what happens next.

Earlier today, the @gillianmckeith account published a sequence of tweets about her doctorate. These tweets were written in the third person.

However, these tweets were quickly deleted.


And then a remarkable tweet appeared, which has still not been deleted.

It said: "Do you actually believe this is real twitter site for the GM?"

Again, this tweet was in the third person (though the addition of the definite article suggests rather breathtaking egotism).

The only natural and ordinary meaning of this tweet was to make the reader think that @gillianmckeith was not the official Twitter account for Ms McKeith.

The tweet was at best misleading.


It was swiftly pointed out to @gillianmckeith that the official website of Ms McKeith contained a link to the Twitter account.

And what happened next was astonishing and will be remembered by all those lucky enough to have watched the events unfold earlier today.

The links to @gillianmckeith were suddenly removed from her official sites.

An examination of the HTML showed that the links were not deleted but "commented out".

This exercise makes it easier for a webmaster to restore the code without having to re-code from scratch. At first the comment out was in respect of just the Twitter link, but soon all the links to social media were commented out.

Unless the website was hacked into, the commenting out was done by someone with authorised access to the HTML code.

This person may be Ms McKeith, but - if not - it would be a person who was acting on her behalf and who was aware of the misleading tweet.

The most plausible explanation is that it was either Ms McKeith or someone acting on her instructions.

(I suspect the latter, as I understand commenting out to be a technique often used by webmasters when faced with unclear instructions to remove material, as it is easily restored.)

The question then becomes what explains this sudden modification to the website code.

There could be a completely innocent explanation.

It may be that there was a scheduled web redesign.

It may be that there were things being said about Ms McKeith on Twitter which would make it understandable for the official website to not want to send traffic there.

There are other, less innocent explanations.


One possible explanation is that the code modification and the misleading tweet were part of a concerted and deliberate effort to mislead people as to the official status of the @gillianmckeith Twitter account.

We are not yet in a position to know if this was the case and, as it is a serious allegation, I do not adopt it until I have verified certain information,

But if that is the correct explanation, then - in the context of @gillianmckeith having attacked the integrity and honesty of Dr Goldacre - there could be an adverse impact on the integrity and honesty of Ms McKeith.

For a concerted and deliberate effort to mislead people is of course what @gillianmckeith said was being done by Dr Goldacre with his "lies".


There may well be a full and complete explanation for the code modification and misleading tweet, a coupling of events which would otherwise raise a question as to the integrity and honesty of Ms McKeith.

No defamatory meaning is implied by any of the above, and none should be inferred.

It is possible that Ms McKeith herself is blissfully unaware of what happened and will be horrified at what was done by those with control over both her website and twitter account.

Further information is required and is being sought, although I have not yet had any response.

But, depending on that further information (or whether any further information is forthcoming), we will then be able to form a view as to the integrity and honesty of Ms McKeith.


Many thanks to the dozens of Twitterers who have provided material which I will use for the blogpost to follow.

I also would like to commend @zenbuffy, whose speedy and thorough account of today's absurdities is an example of blogging at its very best.



COMMENTS MODERATION

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

NO DEFAMATORY STATEMENTS ABOUT GILLIAN MCKEITH WILL BE PUBLISHED.

Sunday, 11 July 2010

Kaschke v Gray and Hilton - update

On Friday 9 July 2010, the bloggers John Gray and Alex Hilton applied in the High Court to have the libel claim brought against them thrown out.

(My friend Robert Dougans, who of course acted for Simon Singh, is formally representing Alex Hilton, and I am one of the lawyers helping Robert Dougans. Both Robert and I are acting pro bono.)

The hearing was adjourned until Monday 12 July 2010.

The key issue before the Court is whether the Claimant's case can be thrown out as an "abuse of process".

You may recall that the Claimant's case against Dave Osler was thrown out as an abuse of process after an application was made on Dave Osler's behalf by me and Robert.

One would suppose that an application by John Gray and Alex Hilton would now be a mere formality.

After all, all John Gray did was also comment on and link to the same (now missing) blogpost by the Claimant, where she herself discussed the events in 1970s West Germany which led to her wrongful arrest and detention, in respect of which the West German government rightly paid her substantial compensation.

(And all Alex Hilton did was host John Gray's blogpost on the LabourHome site.)


However, the Claimant is now disputing various facts which were not seemingly disputed before the High Court, and so this makes it more difficult for a strike out to succeed. The usual practice, given these disputes, would be for a case to proceed to trial (or at least a further preliminary hearing) where there would be the opportunity for the Claimant to cross-examine the contested witness evidence.

But the High Court heard on Friday that an application to strike out could still be made but based now on the Claimant's own admitted publications, court pleadings, and statements in open court.

The High Court will be resume the hearing on Monday 12 July 2010, where it appears that the main issue will be whether there really is sufficient difference between what the Claimant accepts happened in the 1970s and what she says the defamatory meaning is of John Gray's blogpost.

John Gray's blogpost stated:

‘“Baader-Meinhof” Losing Candidate joins diss-Respect

"Former Baader-Meinhof suspect Johanna Kaschke, who was one of the 64 candidates hoping to be nominated as the next Labour Party MP for Bethnal Green and Bow, has resigned to join diss-Respect/SWP. I read about this first in the East End Advertiser where she was quoted as saying that the reason was over the Council's decision regarding its housing policy. I was going to run a post on why the Advertiser had failed to even consider that a reason for her defection could have been her utter failure to pick up any nominations (or I think any individual votes). A case of sour grapes" rather than a conversion while on the road to Damascus.

"However, this being Tower Hamlets the story developed Dave Osler blog "Ex-punk. Ex-Trot. Unchanged attitude problem" (definitely not a New Labour Supporter) picked up that Johanna was also a former Baader-Meinhof (Also known as the "Red Army Faction") suspect who was detained for 3 months on suspicion of being involved in terrorist activities. Baader-Meinhof was a particularly nasty Left wing terrorist gang who murdered many people in Germany mainly during the 1970's (and up to late 1990's). They were found to be partly funded and supported by the communist East German secret police, the Stasi.

"Johanna is quite open about this (and other things) on her website. It would appear that she was released without charge and that she was given compensation by the German government for wrongful imprisonment. However, she does give the impression that she was involved in fund-raising activities for the terrorists although this is unclear. To be fair, she is now firmly and openly against terrorism, Dave points out that she is a small business woman who is opposed to the minimum wage and wants more support for businesses.

"I (think) that I have met her a couple of times and she seemed quite pleasant. However, reading her "New Labour, New Britain" Parliamentary Section CV again, I now understand he declaration on it the she managed to get through life without any convictions whatsoever". I am a little concerned that she should describe her family as working class, and then state her father was a Chartered Accountant. It seems she had only been active in the Party since Feb 2007. I note that she does not appear to be a member of a trade union, so she should fit in well with diss-Respect/SWP.’


The Claimant’s pleaded meaning is that this blogpost says:

“the Claimant was once suspected by the West German authorities to be a member of Baader-Meinhof, the terrorist group that carried out bombings, robberies and murder".


However, the Court heard that the Claimant had once sought a Right of Reply from Dave Osler which had stated:

"You can write Johanna had been arrested within the national hysteria whereby the state arrested everyone meeting their suspicious criteria and threw them into jail. Johanna was one of them. In her case she was accused to be a member of a criminal gang with the aim to commit terrorist offences. However her release and subsequently compensation paid to her for wrongful arrest cleared all suspicion."



Furthermore, the Court also heard that her own Particulars of Claim contained the following statement:

"The fact is that for the avoidance of doubt that the Claimant was arrested in 1975 under suspicion to be part of a criminal gang that could use material for terrorist activities but no proof was provided for those charges."


Just before the Court adjourned, Mr Justice Stadlen said he wanted the Claimant on Monday to explain the reputational difference between:

(1) being arrested on suspicion of being a member of Baader-Meinhof, the terrorist group that carried out bombings, robberies and murder (the meaning on which she is seeking vindication by means of this claim for libel), and

(2) being accused of being a member of a criminal gang with the aim to commit terrorist offences (a statement which the Claimant herself adopts as the position).


And, if there is a reputational difference such that a claim for libel could be maintained notwithstanding her own statements, whether vindication in respect of such a difference would warrant the use of the court's scarce resources.


The case continues.


There will be NO COMMENTS published on this interim blogpost.

Thursday, 8 July 2010

The Improper and Disgraceful Conduct of Hackney Council

Let me introduce you to the strange world of Hackney Council.

Our story begins in May 2010 with Andrew Boff, a Conservative politician seeking election as Mayor of Hackney.

It would be fair to say Mr Boff did not have an easy relationship with Hackney Council.

For reasons which are not compelling, his election address was not included by the Council in the booklet sent to voters before the mayoral election. There was then a decision to list him as a candidate in that booklet but still exclude his election address.

I understand that this exclusion was based on "Counsel's advice", possibly the advice of a QC.

It must have been very clever advice, as I cannot understand why the election address was excluded.

Indeed, the exclusion simply smacks of improper practice.

However, it is not that distinctly odd decision which this blogpost is concerned with.

It is what happened next.

Something very troubling.


According to Mr Boff, and there seems no reason to disbelieve him, he was then contacted by confused voters, who had thought he was not actually standing for election.

For example, as stated in a local newspaper, the Hackney Citizen, Mr Boff received the following email:

04/05/10

Hi Andrew,

My wife called the above number which is on the Hackney Government Mayor Candidate election brochure which was sent to all houses in Hackney and has a two page comment from each Candidate for Mayor. She asked why the Conservative Party wasn’t listed / didn’t have a comment page like the other parties. XXXX1 at Hackney Government who answered the phone said that it is because the Conservative party candidate for Mayor didn’t meet the qualification criteria and so wasn’t eligible to run for Mayor. My wife pointed out that you are on the ballot paper, to which the man said that this was a development that came up after the ballot paper was sent which is why you are included on the ballot but not in the booklet. He also said the Christian party didn’t qualify either.



This was becoming a remarkable situation.

Not only had Hackney Council refused to print and distribute the election address of a candidate for the mayoral election, it was actually telling callers to the election telephone information line that no Conservative candidate was standing at all.

As Mr Boff explained to me:

I received a number of contacts from people who had said that they had called up the Council to ask why my manifesto was not in the Mayoral Booklet and been told I was not a candidate. I must say, that I thought at first they must be mistaken and had misinterpreted what had been said. I also received two emails from people (included on the Hackney Citizen website) which also made the accusation. I decided to test it for myself.


And so Mr Boff telephoned the election information line.

The Hackney Citizen explains what happened next:

Mr Boff the phoned the council as an anonymous caller to hear what enquirers were being told.

Mr Boff said, “The council call centre staff member went to talk to the election office staff to get advice and at the end confirmed that I am not standing".



This was now a serious matter.

It is really not open for a Council to misinform the public - the electorate - in this way.

Perhaps Hackney Council thought they could get away with this.


However, Mr Boff had taken the precaution of recording his telephone conversation.

And he handed the audio file to the Hackney Citizen.

I asked him why he handed it to the media and not take it up with the Council directly:

I initially did call the Council and asked them what they were going to do about it. I did not receive a satisfactory reply from them.


I also asked him whether it was really appropriate to record the council worker without telling her:

I wanted to reproduce, as far as possible, the experience of a cold caller to the Council. To announce that I was recording the call wouldn't have been conducive to that aim.

He added:

The officer concerned was exemplary and she went out of her way to perform her official functions with efficiency. I wish more were like her!


The Hackney Citizen, quite rightly, ran with the story and posted the audio file on its website. It was (and still is) posted in both a full and edited form.

The council worker is not named nor is she at all identifiable from the audio files.

But what is demonstrated beyond any doubt is that Hackney Council is telling voters that there is not a Conservative candidate for Mayor.


I asked Mr Boff whether the newspaper should have printed a transcript instead:

That's really a question for Hackney Citizen but I supplied them with the recording which they published. I did not supply a transcript. If I had supplied a transcript I'm sure they would have published that too. I am delighted that they chose to publish it in full and also an edited version. The advantage of the audio recording is that it is very difficult to tamper with and rebuts any accusations that the officer may have been misheard.


I posed the same question to Keith Magnum, the editor of the Hackney Citizen:

We posted the audio clips on our website as we believed there is a clear public interest case, and thought that people should be able to hear the evidence for themselves, believing it to be more compelling than if it had been reported in transcript form.


Now, confronted with such incontrovertible evidence of wrongful conduct, what would one expect Hackney Council to do next?

Hackney Council seems to then take leave of its senses.

One cannot overstate how bizarre and utterly inappropriate its next step is.


Hackney Council threatens the Hackney Citizen with an injunction.

And it does so in a way which is simply astonishing.

See here for perhaps the most witless litigation letter I have ever seen.

The Council does not even trouble itself was stating what law of which it believes the Hackney Citizen to be in breach.

And the Council does not think to mention on what legal basis it believes it can obtain such an injunction.

Any threat by a public authority to use the coercive power of law in respect of public criticism is a matter for concern and should prompt anxious scrutiny.

And any threat by a public authority against a local newspaper reporting alleged misconduct is a serious issue.

But for the public authority to not even state what the applicable law is for the legal threat is extraordinary.

How can the recipient of the threat even take appropriate legal advice as to how to respond to the threat?

The courts and the legislature have been careful to limit the ability of local authorities to threaten injunctions and other legal actions which may inhibit free speech.

The Derbyshire rule prevents public bodies from suing (and thereby threatening to sue) for defamation; the Spycatcher cases ensured that any public body seeking an injunction for breach of confidentiality needs to meet public interest requirements which are not demanded of private bodies.

And the Human Rights Act 1998, which gives effect to Article 10 of the European Convention of Human Rights, provides it is is unlawful for a public authority to do anything which disproportionately interferes with freedom of expression.

What regard does Hackney Council have to any of these significant legal issues in threatening an injunction?

None.

The threatening letter was improper.

And it is to the credit of the Hackney Citizen that it did not back down.


I asked Keith Magnum what his initial response was on receiving the letter:

We were puzzled as the Council's initial letter did not make any allegations of wrongdoing on our part. It simply stated that in the Council's view it was unlawful for Mr Boff to have disclosed the recordings to us. We were unsure why the Council addressed their concerns to us, rather than to Mr Boff.


I then asked Mr Boff what his view of the threat was:

Despicable but a confirmation of the generally Orwellian approach that has seen lawyers being used to hush people up and the Council barring people from its premises for not having the right views. This is how they have operated for years. People in receipt of their largesse know that to challenge the Council risks grants being withdrawn and vilification.


What concerned me was the lack of an legal basis for such a serious threat.

An injunction, and a threat of an injunction, should not taken lightly. It is a court order, the breach of which can lead to onerous criminal and civil consequences.

Even in litigation not involving public bodies, injunctions should only be threatened sparingly and then only in respect of precisely stated legal breaches or threatened breaches.

So what did Hackney Council believe to be the actual legal basis for its heavy-handed legal threats? Or would it admit it did not have one and that the threat should never have been made?


I thought I would ask Hackney Council these questions.


Question: On what legal basis was the injunction threatened?

Answer: That the publication of the voice recording was in breach of the Data Protection Act 1998.

The brief history of the matter is that a candidate in the elections who is a very experienced politician did not comply with the legal requirements for submitting an election address to be included in the Mayoral election booklet. The election address submitted was held invalid upon the advice of a leading QC in elections law.
As the candidate’s election address did not appear in the Mayoral booklet, a number of residents telephoned the Council to ask why that was the case. Staff at the Council’s Call Centre were properly advised by the Elections team to explain to callers that the candidate did not submit a valid election address and therefore his election address was not included. Nevertheless the Mayoral booklet did list the names of all the candidates standing in the elections.

We understand the candidate was informed by a few members of the public that they had been told by the Council’s Call Centre staff that he was not a candidate in the elections.

The candidate had the opportunity to direct his concerns about this to the Returning Officer. However he chose not to do so but instead called the Call Centre anonymously and asked why the candidate’s election address was not in the Mayoral booklet. The staff member who answered the call contacted the Elections team for guidance and was told it was because the candidate had not submitted a valid election address.

The staff member returned to the caller to convey that information. The caller then proceeded to ask whether that meant he was not a candidate in the Mayoral election. That was a technical question that the staff member could not answer. She hesitated but as the question was repeated several times, she gave the wrong answer and said he was not.

This was a junior member of staff and the Council regretted that she gave such an answer without seeking further guidance. We have publicly acknowledged and apologised for this mistake.

The conversation having been taped without the staff member’s knowledge by the caller was passed to Hackney Citizen who placed it on its website.

The Data Protection Act regulates the processing of the personal data of living individuals who can be identified from the data. We consider that the voice of our member of staff is personal data because the person could be identified from her voice by those known to her. The Council has at no point objected to the facts or the content of the conversation being reported in full. The objection was to the posting of the voice recording.

The Data Protection principles require that personal data be processed fairly by every data controller who processes the personal data. The data controller must give the data subject notice of the processing of the personal data and must process it fairly. In this case, our member of staff was not given any notice and the publication and disclosure of the recording was made without the individual’s knowledge or being given the opportunity to object which can reasonably be regarded as unfair.

Whilst Section 32 of the Act provides that a data controller may be exempt from the principles where he reasonably believes the publication of the material is in the public’s interest, we do not regard the breach of the Data Protection Act to be justifiable under Section 32. This view has been endorsed by external legal advisers who are experts in this area of law. The contents of the tape can easily be reported to the public without playing the actual voice of the person. The Council would have no objection to this nor would we argue that it was not in the public interest. That is not the issue in this matter.


[Note, this answer does not actually explain what the Council thinks entitles it to an injunction as a remedy in this case. The data protection point is incorrect. The voice recording is not personal data. A breach of the Data Protection Act does not not by itself give rise to the right to obtain an injunction against a third party - remember the threatening letter states only that Mr Boff is in some breach, not the newspaper. And the Council does not explain why any of this is not set out in their threatening letter, where it should have been, rather than set out in an email to a blogger - me.]


Question: Will Hackney Council disclose the legal advice and the instructions to the legal department?

Answer: External legal advice was sought from the Media Law Partner of a leading firm of solicitors. That advice is covered by legal advice privilege so we are unable to disclose it.

[I would so love to know which Media Law Partner that was.]


Question: Would Hackney Council have any objection to my Jack of Kent blog (not The Lawyer) hosting the audio files?

Answer: As the Council has stated, it has no objection whatsoever to the publication of a report about the incident and the contents of the conversation between the Council staff and the caller. The objection raised was to the publication of the voice recording of our junior member of staff, who has been extremely distressed about having her voice published in this way.


Question: Why has the Council still not applied for an injunction?

Answer: The Council engaged with the Hackney Citizen on behalf of a very junior member of staff who was extremely distressed by the publication of her voice. The Council has apologised for the mistake this member of staff made and at no stage have we objected to the facts or the content of the conversation being reported in full. The objection was to the posting of the voice recording. The Council feels it would serve no further purpose to continue our dialogue with the Hackney Citizen on this matter. The case is closed from the Council's point of view.

[This is very significant. Not only are the Council wrongly shifting the blame onto a junior employee, which is deeply inappropriate; it is also stating the "case is closed from the Council's point of view" - however, this was complete news to the Hackney Citizen which still believes it was facing the threat of legal proceedings. To threaten a misconceived and baseless injunction application is one thing; to not bother to tell the potential defendant that the case has been dropped is quite another.]


Question: Does the Council yet accept that it does not have, and never had, any legal basis for threatening an injunction?

Answer: The legal basis is that the publication of the voice recording was in breach of the Data Protection Act 1998. Expert legal advice obtained endorsed this view.

[Again, this is missing the point. The question is what entitled the Council to threaten an injunction. They clearly have not got a clue.]


The answers of Hackney Council to this first round of questions were not promising.

The answers suggested to me the following: the Council had not actually thought through its threat of an injunction; that the "data protection" points were subsequent attempts to rationalise a threat which had been made with out any legal basis, else such points would have been mentioned in the threatening letter; and that the Council's dropping of the threat was now being done as haplessly as the threat of the injunction had been made in the first place.

It all seemed rather gormless.


So I asked some further questions; indeed, far more pointed and serious questions.

Exactly where in the Data Protection Act is there the legal power for Hackney Council to obtain an injunction against the Hackney Citizen? Please provide the relevant section of the Act for this particular remedy.

Why is the audio recording been treated as personal data? What is the legal test being relied upon? Or is it just being asserted that it is?

When did Hackney Council refer this matter to the Information Commissioner?

Do Hackney Council now accept the letter threatening such an injunction should not on this occasion have been sent? Or would Hackney Council again send a similarly worded letter in similar circumstances?

In general, is Hackney Council resorting to litigation threats too readily? Is Hackney Council actually "out of control" in respect of its threats of litigation?


I waited keenly for the answers to these searching questions; indeed, I waited an entire working day.

And then, at the very end of that working day, I received my response.

Hackney Council was going to refuse to answer these further questions:

The Council engaged with the Hackney Citizen on behalf of a very junior member of staff who was extremely distressed by the publication of her voice. The Council has apologised for the mistake this member of staff made and at no stage have we objected to the facts or the content of the conversation being reported in full. The objection was to the posting of the voice recording. The Council feels it would serve no further purpose to continue our dialogue with the Hackney Citizen on this matter. The case is closed from the Council's point of view.


Really?

I thought I would double-check, just to make sure.

After all, I was raising some fairly serious questions and allegations.

The sort of questions and allegations any public authority acting properly would address as an absolute priority.

Was Hackney Council really refusing to answer these difficult questions?

Their further response was brief:

The case is closed from the Council's point of view.

Of course, there is one obvious reason why the Council did not wish to answer these further questions.

It realised it could not do so without it becoming even clearer that its conduct in this matter had been improper.


So where does this leave us?

Hackney Council threatened an injunction against a local newspaper without stating the legal basis for an injunction. It then drops the threat in an answer to a blogger's query without even telling the newspaper.

It then comes up with a preposterous data protection point which it cannot even begin to justify when probed.


In my view, and on the basis of the information I have set out above and available to me, there is something deeply worrying about Hackney Council's threat of an injunction against a newspaper properly reporting on the Council's wrongful conduct.

It is not right for any public authority to threaten an injunction against a newspaper in these circumstances.

Hackney Council has acted illiberally and improperly in this matter.


In my opinion, in respect of both the threat and in its failure to properly explain the legal basis of its threat, Hackney Council's conduct here is a disgrace.


COMMENTS MODERATION

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

Wednesday, 7 July 2010

Why can't Pepsi blog on ScienceBlogs?

Pepsi would like to blog about science and nutrition.

(For background, see here and links therein.)

This is surely a Good Thing.

If Pepsi are crap or biased, then we can call them out on being crap and biased.

They are exposed to a huge reputational risk by seeking to blog in the full glare of the blogosphere.

ScienceBlogs have agreed to host this blog.

However, it would seem this is a Bad Thing and really should be opposed.

Why?


COMMENTS MODERATION

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

Monday, 5 July 2010

The Simon Singh case and "wikilitigation"

Robert Dougans (Simon Singh's solicitor) and I have an article in today's The Lawyer on BCA v Singh and the impact the internet had on the case - see here.

Any thoughts?

Is "wikilitigation" a useful term?

Either leave comments at The Lawyer or below.


COMMENTS MODERATION

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

Tales of the Roebuck Institute

The supernatural and the paranormal have long interested me.

In particular, I am intrigued by attempts to make such things seem plausible.

Whilst some geeks adore Star Trek or Dr Who, I was fanatical about the X-Files, especially the "Monster of the Week" episodes where Mulder sought to provide a convincing account of some Occult phenomenon.

I am also fascinated by traditional folklore about the Occult: indeed "Jack of Kent" himself was a medieval wizard who repeatedly bested the Devil.

And so I have often thought about how familiar Occult notions could be re-imagined, stripping away the layers of clich├ęs supplied by contemporary popular entertainment.

I have now had a go at some short stories, the first of which is here.

These stories will be occasional, but I hope you will get to hear more of the lovely narrator and her strange employer, the Roebuck Institute.

After all, that august body ultimately superintends the United Kingdom's ghosts, demons, gods, homeopaths and other witches, werewolves, exorcisms, and so on.

To begin with, our narrator tells of her mundane work with the UK's stock of vampires.


COMMENTS MODERATION

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

Sunday, 4 July 2010

The image of skepticism

I wonder if skepticism is developing an image problem.

To those whose views are challenged by an evidence-based and critical approach, could it be that skeptics appear to be the "nasty party" in the battle of ideas?

Is it the case that to those whose cherished views are being questioned, skepticism comes across with Tebbitite stridency?

Do Woo communities now feel as exposed as those in industrial towns who were hit by "economic realities"?

Is skepticism getting a reputation for arrogance and smugness?

Is it enough just to be right?

Thoughts?


COMMENTS MODERATION

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

Thursday, 1 July 2010

Ken Clarke's Speech

This is the prepared text of the speech given by Justice Secretary Kenneth Clarke to the Centre for Crime and Justice Studies on 30 June 2010.

This speech was much hyped, and in particular it was held to signify an important break with twenty years of illiberal prisons policy.

Source: here.



Public services from first principles

George Osborne made clear last week that most government departments are going to have to reduce their budgets by around a quarter.

This is an extraordinary challenge. But we live in extraordinary times. It is unavoidable. We have to face up to the question of how we make savings without damaging public services.

But we do need to reconcile drastic and necessary cuts in public spending with positive policy making. Mere salami slicing of budgets can cause unintended damage to the public good. This gives us the chance to re-think from first principles how we can deal with the problems we face and provide the services that the public interest demands in a more targeted way.

My priorities are to punish offenders, protect the public and provide access to justice. The proposals I’m going to outline today in relation to the courts, legal aid and sentencing will have proper regard to each of those priorities.


Courts reform

For courts and legal aid, I am confident that we can use our resources far more effectively. I have already made one announcement on the cost effective provision of buildings for the court process, which seems to me an obvious early step to take.

There is no doubt that our courts sit in a large and historic estate of underused buildings. Clearly people should have access to court services a reasonable distance from their home. But the courts estate has developed piecemeal over many decades and in some cases still reflects how far it was reasonable for a man to ride a horse. It no longer matches where the centres of population are or where transport networks can most easily take them. Some courts are significantly underused and do not have enough work to justify the cost of building and maintenance – and we have millions of pounds worth of arrears of maintenance, as is sometimes only too obvious.

Many courts do not have the standard of facilities we expect of a modern justice system. Some have no space for witnesses to sit away from the other parties’ families and supporters. Others are not accessible to disabled people. And still more lack suitable secure facilities for prisoners. For most people, a visit to Court is an extremely unpleasant experience.

It would obviously be nice if we could keep all of the old court buildings that we are used to. But in these hard times, an underused courts estate is an extravagance we simply cannot afford. We have identified the potential to make a one off saving of £21 million and annual savings of £15 and a half million in running and maintenance costs. These are savings we must make.

But financial reality should also provoke us to think about whether there are more sensible ways of transacting the business of justice today.

It is absolutely right that trials of serious issues are heard in open court. Witnesses can be cross-examined properly, and the public can see what is going on.

We are not going to deny people the right to have their day in court. But do we want to force people to take a day off work to go to court for a routine matter – council tax arrears, TV licence infringements, for instance? I am not convinced that all minor, non-contentious cases need to be heard in a traditional court setting.

We are therefore looking in to different methods of delivering justice without the need for the full grim court experience. That means using technology. And it means alternative dispute resolution.

Don’t get me wrong; I don’t propose to go down the path of all-singing, all-dancing IT schemes. The history of the public sector is positively littered with grand, imaginative government IT projects that have failed to deliver and led to appalling waste.

But we may well be able to find ways of using technology so people don’t always have to go to court and disputes are resolved quickly and effectively.

This is why we published a consultation last week on how we can best use the courts to meet the modern needs of local communities.


Legal Aid Reform

It is just as clear to me that we must make major changes to legal aid. It cannot be immune from the same searching analysis to which we are subjecting every other area of public policy and spending.

I want to get away from salami slicing the legal aid budget. This is a painful process that does Minister, lawyer and client no good at all. Instead, I want an approach that balances necessary financial constraints with the true interests of justice.

Nobody feels more strongly than this Government about the need to make sure everyone has access to the most important aspects of justice – in particular the poor and the vulnerable in cases where their liberty or key aspects of their wellbeing are at risk.

In an ideal world we would have a national legal service, in the same way as we have a National Health Service. That has been proposed in the past. But ever since the last World War, anyone looking at this sensibly has had to admit that we cannot afford it. We cannot even afford the system we’ve got.

We spend more on legal aid than almost anywhere else in the world. France spends £3 per head of the population. Germany; £5. New Zealand, with a comparable legal system, spends £8. In England and Wales, we spend a staggering £38 per person.

So we need to take a hard look at our legal aid system. That means asking questions about what access to justice means and what access the state should provide and taxpayers pay for.

When is it reasonable to say to someone, you really can afford to pay for that yourself, or you really should insure yourself against these unlikely legal events? I understand the right and desire of people to use the law to settle their disputes and to assert their claims. But what is the balance between the assertion of rights and the responsibility to accept the burden of using your own resources to assert them? It may be that people have to pay more of their own legal costs than has been the case in the past.

We are always going to have to provide legal aid for criminal cases. But it must be means tested. I am an MP. Why should the taxpayer pay the whole cost of defending me against charges in court as taxpayers are currently doing in the case of four of my former colleagues? I cannot believe it is right that 1% of criminal cases [the so-called ‘very high cost cases’] consume 50% of the Crown Court legal aid budget.

Nor am I convinced that in many private family cases the traditional adversarial system is best for the parties involved or the best use of public funds. In the worst cases, bitter disputes between spouses and partners are made worse by repeated and fruitless battles between lawyers in court hearing after court hearing. Might we be better off focusing more on better and less legalistic ways of seeking to resolve emotionally charged disputes between former partners in broken relationships? A review chaired by David Norgrove is underway to search for more civilised ways of handling disputes over children, property and the most important human aspects of peoples’ lives.

We will be carrying out a fundamental reassessment of legal aid over the coming months [and then asking for people’s views in the autumn]. Of course, legal aid is a key part of the income of the legal profession, who are key defenders of justice and the rule of law. Of course citizens wish to press their claims and assert their rights. But it is justice itself that matters most. We must spend what the taxpayer can afford on legal representation only on those issues where the public interest requires it.


Punishment and protection

Let me turn to my thoughts on how we punish offenders and protect the public – the two most important priorities of all our work in the Ministry of Justice.

I said soon after I was appointed that I am amazed that the prison population has doubled since I was Home Secretary in the early 1990s. It stands at more than 85,000 today. This is quite an astonishing number which I would have dismissed as an impossible and ridiculous prediction if it had been put to me as a forecast in 1992.

Sentencing should not be based on cost, but on principles of retribution, reflection of public anger and the effective prevention of further crime. It costs more to put someone in prison for a year than it does to send a boy to Eton – on average £38,000. The prisons system houses over 85,000 prisoners, many of whom are currently in overcrowded conditions at expensive prices.

For as long as I can remember, political debate on law and order between rival parties has been reduced to a numbers game: Do we have more police officers? Have we put more people in prison for longer? Has more money been spent on a problem? The measure of success has been solely about whether a Government has spent more public money and locked up more people for longer than its predecessor in the previous years.

The consequence is that more and more offenders have been warehoused in outdated facilities, and we spend vast amounts of public money on prison. But no proper thought has been given to whether this is really the best and most effective way of protecting the public against crime.

So I ask this: how do we actually go about improving the safety and protecting the property of honest citizens in the most cost effective way?

I do not doubt that certain forms of crime have fallen in recent years. But have they fallen because more people are in prison? Or because there was less temptation to live by crime during a period of economic boom?

And do the public feel any safer as a result? I think not. Crime remains one of their top three concerns – up there with immigration and the economy.

A great mass of grave academic and social research has produced arguments on both sides. There is no simple, conclusive answer. You cannot prove it either way. Prison is the necessary punishment for many offenders. But does ever more prison for ever more offenders always produce better results for the public? We have many more people in prison than many other countries with lower crime levels. We have one of the highest crime rates in Western Europe, and one of the highest prison populations.

I think it is too simple to argue about tougher sentencing or softer sentencing, although it makes for good headlines.

I believe in intelligent sentencing, which will seek to give better value for money and the effective protection that people want.

There are some nasty people who commit nasty offences. They must be punished, and communities protected. My first priority is the safety of the British public.

But just banging up more and more people [for longer] without actively seeking to change them is what you would expect of Victorian England.

It is time we focused on what is right for today’s communities.

Too often prison has proved a costly and ineffectual approach that fails to turn criminals into law-abiding citizens.

In our worst prisons it produces tougher criminals. Many a man has gone into prison without a drug problem and come out drug dependent. And petty prisoners can meet up with some new hardened criminal friends.

Reoffending has been rising again in recent years [– by 8% for adults between 2006 and 2008]. Nearly half of offenders sent to prison are reconvicted within a year. And more than half of the crime in this country is committed by people who have been through the system. The rate of reoffending is even higher – 60% – for the 60,000 prisoners who serve short sentences each year.

This does not surprise me. It is virtually impossible to do anything productive with offenders on short sentences. And many of them end up losing their jobs, their homes and their families during their short term inside. That is why this Government, as I will explain later, has committed to a full review of sentencing policy to ensure that it is effective in what it is supposed to be doing – deterring crime, protecting the public, punishing offenders and cutting reoffending.

We want a far more constructive approach, what my party in opposition called a Rehabilitation Revolution.

This means prisons that are places of punishment, but also of education, hard work and change. It means rigorously enforced community sentences that punish offenders, but also get them off drugs and alcohol and into employment.

The voluntary and private sectors will be crucial to our success. We want to make far better use of their enthusiasm and expertise to get offenders away from the revolving door of crime and prison.

The most radical part of our new approach will involve paying independent organisations by results in reducing reoffending. They would have clear financial incentives to keep offenders away from crime. And success would be measured perhaps by whether they find and keep a job, find housing and so on – whether they become functioning members of society – but above all by whether they are not reconvicted within the first few years of leaving prison.

The intention of our policy in Opposition was to pay for this new approach through the cash savings it was hoped it would generate for the criminal justice system. In Government, we intend to pursue this virtuous circle: reduced reoffending, fewer victims and value for money for the taxpaying public.

I share the enthusiasm of my Ministerial team about the work proposed to start soon on Social Impact Bonds in Peterborough Prison. We will pay social investors there if and only if they reduce the reoffending of short sentenced prisoners.

Eventually, our aim is to expand payment by results to other groups of offenders. We want to encourage third sector organisations to grow so they can support more and more people, and work to turn around more and more lives.


Sentencing reform

This radical new approach to prisons and rehabilitation will ultimately come to nothing if it isn’t supported by a clear, coherent sentencing framework.

The current legal framework is over complicated, confusing and disingenuous.

Sentences pronounced in court often bear no clear resemblance to the time actually served in prison and they are not clear explanations to the public and to the victim of the penalty imposed.

It creates a sense of injustice when criminals spend much less time in prison than specified in court. And it undermines public confidence in criminal justice.

This must be changed. Sentencing needs to be consistent, honest and transparent for the public, for victims of crime and for people working in the system.

So the Government will look in detail over the coming months at the sentencing frameworks for adult and young offenders, as well as the full range of penalties available in the criminal justice system.

We will explore in particular proposals to restore public trust through minimum / maximum sentencing. Under this system, offenders would serve a minimum period in prison set as the minimum punishment by the judge in court. They would not be eligible for release before then. The judge would also set a maximum period, and offenders would have to earn any release before that point.

This will also give us the chance to look at whether we’ve got the balance right between ensuring a certain level of consistency in sentencing across the country, while giving judges the discretion they need to consider all the evidence they hear of the circumstances of the case. How far have sentencing guidelines been an aid to consistent justice and how far an over rigid response to the wide range of circumstances in individual cases?

I think it’s fair to say I’ve got rather more confidence in judicial discretion than my predecessors. The difference between a judge and a member of the public or a politician is that judges listen to hours and hours of evidence before they make a decision. They know far more about the detail of a case and the evil of the particular offender than we ever could just by reading the red tops.

Our assessment will look at community penalties as well as imprisonment. These are a crucial part of the sentencing framework. They can be a tough, effective way of making offenders turn away from crime and protecting the public. For years successive Governments have tried to make them tough and effective and the public are still not convinced that they are as effective as prison.

But those magistrates and judges among you know far better than I how – and indeed whether – we are getting nearer to the desirable goal now.

I want to hear the views of the judiciary and the citizen JPs who dispense justice in our magistrates’ courts.

When you have handed out community penalties, have you found them to be effective? If so, which ones? If not, why not? What was wrong with them?

Are all the orders you would like to impose available in your area? Which ones would you like to see more of? And which have you found to be most effective?

I’m afraid I certainly cannot promise that we will be investing vast amounts of money into non-custodial sentences across the country. This is simply not possible in the present crisis. But I would genuinely like to hear what those people most responsible for the punishment of crime think about how the system is working and how it needs to change.

If we can’t make necessary improvements now with the money available, we will think carefully about how we could encourage other partners to help – for instance yet again through the payment by results system I mentioned.


Conclusion

The reason I enjoy being in this office is because this is a serious subject. And I am charged with very serious responsibilities.

We are rightly proud of the justice system in this country, even if we are critical of many of the details. It is a crucial part of a safe and civilised society.

Spending more and more of other people’s money to try to prove that you are tackling a problem is a favourite habit of too many politicians. It is a bad habit that I have always tried to avoid. But spending less must not mean damaging criminal justice and if we are sophisticated and intelligent in what we do we will not cause harm.

In fact, we want to be so radical that we spend less and do things better at the same time. We want to improve the way we punish offenders and protect the public.

We will set out more detail in a Green Paper in the autumn to establish an effective and honest approach to sentencing and a radical new approach to rehabilitation. We hope it will lead to a coherent package of legislation in the second Parliamentary session.

Today marks a change of direction, a break with the past.

The failure of the past has been to use tough rhetoric and to avoid taking tough decisions that might prove unpopular. I am determined to make the right decisions. And I hope to deliver results that will deserve your support.



So what do you think..?


COMMENTS MODERATION

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