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Friday, 28 October 2011

Criminal evidence - a very quick introduction

The conviction today for murder of Vincent Tabak has raised the question of what sort of evidence should, and should not, be put to a jury.

My own view, and this is entirely subjective, is that if one is to have juries, one should trust them, or not have them at all.


If the evidence is relevant then it should be admitted to the jury.

Anything less is both somewhat artificial (and it then does not seem clear what the jury's function is, if it not to bring their worldliness to bear) and prone to disruption (especially in days of internet searches).


However, it may not be clear to non-lawyers what the basic rules of evidence are in criminal trials.

(Evidence is something which tends to show whether a fact is correct or not, and it can consist of witness evidence (either in writing or orally), exhibits, and expert evidence.)

In very general terms, there are three tests for criminal evidence:

1. Is the evidence relevant? In other words, does it go to either establishing or not establishing a fact which needs to be proved for the offence to be committed or a defence to be available. If the evidence is not relevant then it cannot and should not be used.

2. If the evidence is relevant to establishing or not establishing a relevant fact then the question is whether it is admissible. Here the starting point is whether the effect of the evidence is more prejudicial than probative. In jury trials (at the Crown Court), the criminal courts take a rather paternalistic view of what a jury would find prejudicial.

3. If the evidence is both relevant and admissible, then the question is what weight should be placed on that evidence. And with a jury one should never know, as the deliberations are secret. Judges in judge-only trials, on the other hand, will usually state openly why they prefer some evidence over other evidence.


The effect of this is that criminal trials are sometimes more a contest of what evidence is put before a jury rather than an exercise in assessing evidence.

Once a defendant knows what evidence will be before a jury, they may well plea guilty or not guilty accordingly.

A good defence lawyer will do their best with the evidence in court, but the masters are those who manage to get the evidence excluded in the first place, either on the basis of relevance or admissibility.

So in terms of evidence, as well as in terms of procedure, justice can be either carried or miscarried on essentially technical points, rather than on the overall facts of the matter or the black-and-white substantive law.


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Sunday, 23 October 2011

Idiocy at the Cathedral

St Paul's Cathedral is closed.

To the outsider, it does looks as if there has been some bad decision-making here by those at the Cathedral.

In particular, the 'health and safety' excuse appears spurious, as it so often is when invoked by self-serving idiots.

It must have seemed so clever: let's threaten to close the Cathedral, they thought, that will make the protesters leave.


And so this huge and beautiful domed Cathedral, perhaps the finest ecclesiastical building in London (though I also like St Johns Smith Square and Christ Church Spitalfields), has closed down.

It has closed down in what just seems to be a hissy-fit when some small-tented non-obstructive protesters called its bluff.

An elephant has been beaten by a mouse.


I can vouch that the protesters are non-obstructive; I work just by St Paul's Cathedral and, although I am hardly an anti-capitalist sympathiser, I have seen every day this last week that the protesters are not impeding access to the Cathedral, and that they are well-mannered and clean.

One may think their views to be misconceived, but I have not witnessed anything which would suggest the Cathedral had actually been inconvenienced.

As I said, the Cathedral played a bluff, and the protesters called it.


I wonder if the clergy will sheepishly re-open the Cathedral in a few days.

In the meantime, we should be grateful to #OccupyLSX for, if nothing else, reminding us of how stupid some very senior religious people can be.

Daft bunch.



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Thursday, 20 October 2011

The Gadaffi Exception

It should not be banned...

...but as a matter of taste one would really not expect death porn to be broadcast on television news and mainstream media websites...

...indeed, one would have thought that as a matter of simple decency the last few moments before a violent death of a fellow human being would not be used as some snuff spectacle like a latter-day public hanging...

...unless, it would seem, the death is that of Gadaffi.



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Tuesday, 18 October 2011

Richard Dawkins is being sued for libel

Richard Dawkins ("Clinton Richard Dawkins (commonly known as Richard Dawkins)"), the Richard Dawkins Foundation for Science and Reason, Amazon UK, and Vaughan John Jones are being sued for libel by businessman Christopher McGrath and his company McG Production Limited.

There is a strike out application scheduled for 10 November 2011.

More details to follow.

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Tuesday, 11 October 2011

"Top" legal tweeters...oh dear.

Oh dear.

Oh dear, oh dear.


Last Friday I did a blogpost for The Lawyer on the difficulties of identifying the top legal tweeters. You can read it here.

It was not intended to be taken too seriously. It was a personal view by a single blogger. After a paragraph explaining why follower counts are not important, I mention nine tweeters with relatively high follower counts and show what a diverse bunch they are.

Nowhere did I say these were the top nine. That is why I did not tabulate them. It wasn't intended to be a chart of any kind.

And once I showed the diversity of the nine I selected, I moved on to other "top" tweeters with far lower follower counts, and gave up on the follower count criterion completely.


There was one glaring omission (my own account) which really should have implied to anyone with an interest in legal tweeting (and a sense of humour) that my selection of nine was not complete.


So altogether: it was not meant not to be taken too seriously, it was not scientific, and it did not purport to be comprehensive. It was - I thought - a playful and partly ironic post by someone with a high follower count trying to show why there really is no good way to rank legal tweeters.

And it certainly was not on "behalf of" The Lawyer.


But....

Oh dear...

At least one blogger has taken exception to my exercise - see here.

I am criticised in that post for things I did not do and did not intend to do.

Furthermore that post - wrongly - says my thing was on behalf of The Lawyer, instead of it just being a blogpost by a blogger. I am even criticised - by implication - for not placing myself on top of the (non-existent) table! (That I didn't should have been a hint that the post was not to be taken too seriously...)

So there we are - my response to a critical post.

But the fact remains: my post was merely a personal attempt to show why lists of tweeters by follower counts have limitations, even if they are revealing, and by missing my own account out I was hoping to show that it was not a terribly earnest exercise of any kind.

Never mind.


I am sorry to anyone who felt they should have been listed in my post (I understand some are upset), and please be assured I am hoping to write about more legal bloggers and tweeters soon.

And, oh dear.

Sunday, 9 October 2011

Sally Morgan and libel: what actually happened in Dublin?

Lawyers for "Britain's best-loved psychic" Sally Morgan have announced that she is commencing an action for libel.

That lawyers' statement is rather vague, but her official Facebook page says the following:

"On behalf of Sally Morgan we would like to confirm that Sally Morgan has instructed Graham Atkins of Atkins Thomson to commence libel action in relation to press allegations that she is a cheat, following her show in Dublin. Thank you for your support and patience in this matter. Sally Morgan Management Team."


So it appears that it was to do with a stage show at the Grand Canal Theatre in Dublin on 11 September 2011.

In particular, it seems to do with allegations made the following day on RTE radio by a caller ("Sue") to a call-in show.

You can hear that phone call here, which is worth listening to in full.

You will also hear another caller supporting Sue's account.


On 20 September 2011, my friend the respected professor of psychology Chris French published an article on this allegation.

(Please note that the headline and strapline to that article were from the Guardian and not from Chris.)

What he said, which has been denied by Morgan, is as follows:

"Let me describe what happened so that you can make up your own mind. On Monday 12 September, a caller named Sue phoned the Liveline show on RTÉ Radio 1, an Irish radio station. Sue said that she had attended Morgan's show the previous night at the Grand Canal Theatre in Dublin and had been impressed by the accuracy of the readings she made in the first half of the show.

"But then something odd happened. Sue was sitting in the back row on the fourth level of the theatre and there was a small room behind her ("like a projection room") with a window open. Sue and her companions became aware of a man's voice and "everything that the man was saying, the psychic was saying it 10 seconds later."

"Sue believes, not unreasonably, that the man was feeding information to Sally through an earpiece attached to her microphone. For example, the voice would say something like "David, pain in the back, passed quickly" and a few seconds later Sally would claim to have the spirit of a "David" on stage who – you'll never guess – suffered from back pain and passed quickly.

"A member of staff realised that several people near the back of the theatre were aware of the mystery voice and the window was gently closed. The voice was not heard again.

"Sue speculated, again not unreasonably given the history of psychic frauds, that the man was feeding Sally information that had been gathered by engaging members of the audience in conversation in the foyer before the show began. This is a technique widely used by psychic fraudsters, as audience members will naturally discuss with each other who they are hoping to hear from "on the other side", how their loved one died, and so on.

"Subsequent callers to the radio programme supported Sue's account.

"The theatre's general manager, Stephen Faloon, claimed that the voice heard by the audience was actually the voices of two members of staff working for the theatre, not someone supplying information to Sally. Sally Morgan Enterprises also denied that the medium was being fed information during the show."



Sally Morgan then posted the following official statement:

"I would like to address this morning’s piece by Chris French, which was loosely related to the recent allegations made towards me regarding my show at the Grand Canal Theatre in Dublin.

"All my life I have run the gauntlet of cynic and skeptics, many are genuine people that are intrigued or unsure but there are also people that point blank would never allow themselves to understand what I do. Because of the work that I do, I have to live with such accusation of being a “fraud” or a “con artist” on a daily basis, however this doesn’t mean that it doesn’t upset me.

"My live shows are very expressive and for this reason I have always used a head microphone instead of using a hand held microphone. The head-mic runs from my ear, down my back and into a radio pack. The head-mic I use is only for sound to go out to the audience not the other way around, it is impossible for me to hear through this.

"The recent performance at the Grand Canal Theatre, I felt, was a fantastic show, an amazing audience and over 700 people waited behind to meet me at the end. I was completely unaware that two young lads, who are employed by the theatre as technicians had been accused of feeding me information. Apparently, during the second half of the show, a window from the production room was open and audience members with their back to them could hear them talking. An usherette quickly diffused the situation and asked them to close the window, however someone construed that these two people were telling me what to say. I would like to state that I have never met these two boys before in my life and more importantly, they have nothing to do with my show. I have no communication with them and there is no way they would have been able to talk to me while I was on stage.

"I have also been informed of another theory, that staff from the theatre was going around the audience digging for information. To think that everyone at the theatre’s [sic] I perform in is involved in a big conspiracy is ludicrous.

"It is unfortunate that with my work, my accuracy stirs, in some people, the need to prove that it isn’t accurate. People wonder, “where am I getting messages from” and for many they would only ever understand if t could be explained scientifically.

"The work that I do opens up so many possibilities for us, but there are many people that are closed off to these. I completely understand this, everyone is entitled to their own beliefs and idea’s, I myself ask questions about what I do every day.

"I am very aware that the work that I do isn’t for everyone, I don’t try to change opinion or force my ideas on anyone else, although my shows are related to a serious subject matter they are always entertaining for an audience and I always try to ensure that there is plenty of laughter as well as the tears that often come. I totally respect cynics and skeptics, as if we don’t ask questions we don’t get answers. However, I will not stand by and be accused of fraudulent behavior, from inaccurate sources of information.

"I consider this morning’s comparisons to Peter Popoff ridiculous and hurtful, as there are no similarities. Peter claims to be able to “communicate the supernatural good news of Jesus Christ and the power of the Holy Spirit” but this is not something I profess in anyway.

"I receive hundreds of emails and letters from people who I have helped over the years and their support inspires me to continue what I do. As long as I can bring comfort and people want my help, I will be there for them. I do not force anyone to come to my shows, watch my TV series or buy my books, but if they do and they get some enjoyment, support, happiness or advice which enables them to overcome grief or understand the afterlife, then I shall carry on with the work that I do.



So Morgan's own positive account of what happened at the Grand Canal Theatre in Dublin is:

- that it was "a fantastic show, an amazing audience and over 700 people waited behind to meet me at the end"

- that she was completely unaware that two young lads, who are employed by the theatre as technicians, had been accused of feeding her information [note the existence of these two "lads...employed by the theatre as technicians" is asserted as fact, and only their feeding of information is described as an accusation]

- that "[a]pparently, during the second half of the show, a window from the production room was open and audience members with their back to them could hear them talking"

- that "an usherette quickly diffused [sic] the situation"

- that this usherette "asked them to close the window"

- that "someone construed that these two people were telling me what to say"

and (curiously)

- that she would "like to state that I have never met these two boys before in my life and more importantly, they have nothing to do with my show. I have no communication with them and there is no way they would have been able to talk to me while I was on stage".

This positive account - by which I mean it is not a bare rebuttal of what the callers said to RTE radio - is rather detailed, and it is especially emphatic in its final denial. Somehow she knew that it was two lads, what their employment status was, and that she had never met them. One wonders how, in the circumstance, she can be so sure of each of these points. [UPDATE - this now seems to have been based on the Faloon comments, now quoted below.]


Comparing the audio clip of the callers to RTE radio with Morgan's own account is interesting.

There would appear to be a lot at stake in this threatened libel action.

And, if the libel action proceeds, perhaps we will find out what actually did happen last month in Dublin.


UPDATE

I have now seen this posted on the Irish Independent's website dated 13 September 2011:

Stephen Faloon, the theatre's general manager, last night denied anything underhand was going on and said the voice heard by the audience belonged to two 'follow-spot operators' working for the theatre, and not Ms Morgan.

"These two guys, Stuart McKeown and Mick Skelly, are professional light technicians who were working for us, and unfortunately because a window had been left open, were heard talking.

"But as soon an usherette heard them talking, and informed her supervisor, the window closed and the talking stopped.

"It was a slight distraction but that was the chain of events on Sunday night."

The theatre stressed it would "never be a part of any scam", or attempt to "mislead" its audience.



SECOND UPDATE

This is not from the Dublin show, but it is from Sally Morgan's own YouTube channel - and just what is she removing from her ear after 5:40?



And screengrab of that particular moment (hattip @MissOceania):



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Sally Morgan is bringing a libel action

Sally Morgan, the stage "psychic", is bringing a libel claim.

This was announced on Friday by Atkins Thomson, a London law firm experienced in media law matters. Given this experience, one must presume that her decision to bring a claim has not been made lightly, and that she is fully aware the reputational damage that can result from a misconceived libel claim.


The lawyers' statement is not very informative:

"Sally Morgan instructs Atkins Thomson to commence libel action in relation [to] various articles in the press."


Indeed, so vague is this statement one would perhaps need their client's uncanny abilities to know what it actually means.

First of all, it does not say that any claim has actually been issued. It does not even say that any formal "letters before action" have been sent. We could even still be at preliminary stage, without there having been any correspondence yet at all.

Second, it does not say who the defendants will be. Will Morgan be suing just one media organization? Or many? Will she even adopt the illiberal tactic of threatening the individual journalists? (This was the approach followed by the now discredited British Chiropractic Association in their claim against Simon Singh.)

And, third, it does not state what the supposed libels are. Morgan makes considerable amounts of money out of her audiences believing that she talks with dead people. However, it cannot be defamatory to say that Morgan does no such thing.

Accordingly, any supposed libel is likely to be in regard of how she gives the impression to how she converses with spirits. Is she merely deluded? Does she have the means in place to mislead her audiences? And if she is misleading her audiences, is she doing so with any wrongful - or even dishonest - motive?


The current state of English libel law is that all Morgan has to do to bring a claim is to show a defamatory statement was published by a defendant in England and Wales. She will not have to prove any loss or damage, and she does not even have to show that statements are false (if statements of fact) or malicious (if expressions of opinion).

Once the claim is made, the burden shifts to the defendant, often with terrifying costs implications. It is for the defendant to prove that any factual statements are true (for example, that Morgan does not have any real psychic ability and uses wrongful practices to give that impression) rather than for the claimant to prove the converse (for example, that she really does talk with dead people and that she does not use any wrongful practices to give this impression). As for expressions of opinion, it is for the defendant to show that they are fair and honest, based on the material available.

In a libel case such as one which Morgan may bring (though it must be emphasised we do not know yet what libel claim she is threatening), a possible scenario is that the defendants may have to prove to the court she is not a psychic and that she does use wrongful practices, rather than that Morgan proving that she is a psychic and that she does nothing dubious at all.

That said, of course, the spectacle of any "psychic" being cross-examined at the High Court by any competent barrister - let alone the forensic savages of the specialist libel bar - would be something not to be missed.


So all we know so far is that Sally Morgan is threatening a libel claim; that much is certain, and - not being mind-readers - we must be careful about what at this stage we do not know.

But this does rather promise to be an interesting one.


UPDATE

There is a statement on Morgan's official Facebook page:

"On behalf of Sally Morgan we would like to confirm that Sally Morgan has instructed Graham Atkins of Atkins Thomson to commence libel action in relation to press allegations that she is a cheat, following her show in Dublin. Thank you for your support and patience in this matter. Sally Morgan Management Team."


+++ I have now posted a further update on this case here.+++



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Saturday, 8 October 2011

Breaking the law alone in a room

Once upon a time, in a land north of the border, a man was convicted for having sex with a bicycle.

According to BBC news reports (here and here), he was found by "extremely shocked" hostel cleaners "holding the bike and moving his hips back and forth as if to simulate sex".

The man admitted a "sexually aggravated breach of the peace" having conducted himself "in a disorderly manner and simulating sex". He was given three years' probation and placed on the Sex Offenders Register, also for three years.


I am not a Scots lawyer, and one can never rely entirely on news reports for "Bad Law" or "The Law is an Ass" type stories (see, for example, here), but I have often thought about this news story.

You know: like, how? Or what?

But also: just what was the law doing being involved in such a personal and private matter?

What if it had been a person using a vibrator?

What if..?

And so on.


Presumably what made this an offence was that it was seen by the hostel cleaners, who had - it is reported - entered the room with a master key.

If so, to incur criminal liability just because a hostel cleaner enters a room at a certain moment seems a tad unfair.


But, regardless of the merits of this unusual case, there is a wider question: to what extent (if any) can - and should - the law regulate what a person does in a room by themselves?

Can - and should - someone have a personal space where they have absolute autonomy and privacy, so as to do just what the hell they want?


Last week I asked on Twitter what crimes a person could commit alone in an empty room and where there was no electronic media of any kind.

Some suggested suicide, though that has not been an offence in itself since the Suicide Act 1961. Assisting a suicide remains an offence - and I think it is the only "assisting" offence where there is no principal offence - but that, of course, is not a matter for the person in an empty room.

A person could commit criminal damage, but only if there was property in the room which did not solely belong to him or her - such as something jointly owned or subject to a mortgage or suchlike.

A certain sort of person could create extreme pornography - which can include drawings and other "realistic" representations - though that would be difficult without a pencil and paper. Perhaps it could be scratched into the wall with his or her thumbnails?

There would also be a range of possession offences which a certain sort of person could theoretically commit whilst just sitting in an empty room: child pornography, drugs, firearms, and so on.

A recent offence which a person can commit in this empty room is preparation for a terrorist act. And, indeed, there could be a range of offences which one can prepare for whilst in the is empty room and in respect of which one could incur criminal liability depending on the facts of the case and the evidence either admitted by the person or proved by the prosecution.

There may be other potential offences which we can take into account.


A great philosopher once said that all man's miseries derive from not being able to sit in a quiet room alone.

However, it would appear that there are certain miseries to do with incurring criminal liability which can be inflicted on a person sitting in a quiet room alone - though it would seem that some object or other also needs to be present.

Some of the offences which one can commit are without doubt ones which should still apply even to a person by themselves - especially the possession offences.

And so the law does not allow a person absolute autonomy and privacy in his or her own private space.

But surely one should be allowed to do what one wants with a bicycle?


UPDATE

Hattip to @Piombo - it appears the "bicycle sex" story may well be a "Bad Law" story - see here.

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