Jack of Kent

A NightJack - and computer hacking - timeline

2012-01-22T08:38:00.050Z

I set out below a chronology of the NightJack case and computer hacking by newspapers more widely.

Please suggest further events and/or links, as it is intended that this post will be updated - significant additions will be noted in the comments at the end of the post.

You will notice that I do not mention the journalist by name (unless quoting from a document). There is no reason for this to be a witch-hunt. The journalist admitted the computer hacking incident to his managers, and he was disciplined for it. The far more important issue is about what his managers did or did not do with this information. As far as I can I tell, they knew before publication, decided to publish, decided to oppose an injunction, did not tell the High Court or the defendant's lawyers, and told the Leveson inquiry as little as possible.

They also have never apologised to the blogger.

You will see I also do not mention the blogger's real name (again, unless quoting from a document). However, I regard "Jack Night", the author of the NightJack blog, as the best writer the blogging medium has so far produced (even if he and I have - ahem - different views on many policing and social issues). The loss of his blog was needless and unfortunate. He was one of the two kind judges when Jack of Kent was shortlisted for the Orwell Prize. I hope the below helps get him the apology he greatly deserves.

The NightJack posts are archived here - hat-tip to SaltedSlug for putting the archive together.

Key

Judgment - the judgment of the High Court in The Author of a Blog v Times Newspapers Limited dated 16 June 2009
PF - the witness statement of the journalist dated 2 June 2009

22 April 2009

"NightJack" awarded 2009 George Orwell Prize for blogging.

This is the first year that the prize is awarded for blogging.

This the acceptance speech, read out by an old friend.

When I started the Night Jack blog back in February last year, I was standing on the shoulders of others. I heard about a Police blog called Inspector Gadget at work. I read it and I agreed with it. My comments on there started to get so long that one evening I sat down with my laptop and started a blog of my own.

As I wrote more posts I found that people were coming to my site to read and leave comments. Arguments started, some of them even came close to being reasoned debates. Then people in other blogs started linking to some of my posts and saying they were worth reading. As the readership headed over 1,000 a day, I started getting the occasional e-mail from the news media asking for an interview. I even got the obligatory Police blogging book offer. I am not now, nor have I ever been, a media cop.

If anyone had told me then that I was going to make the short list for the Orwell Prize I would have asked them to stop being silly. It is still a bit of a nosebleed experience finding myself in the company of so many other blogs that I admire and follow.

I believe that as bloggers we are mostly short levers in the political world but I would like to thank the Orwell Prize for noticing us and for choosing to do so in a year that has seen political blogging become a more important part of the wider political process.

Anyway, as you may know, I am an anonymous blogger and as I do not feel able to accept the prize openly and in person, I have decided to donate any winnings to the Police Dependents’ Trust. This is a charity that assists the families of colleagues who have died in the execution of their duties.

Enjoy your night. Thanks again. Jack Night.

Reported at the Guardian here.

At some point after the award the journalist "resolved to try and uncover the identity of its author, for the purpose of a news story" (PF para 5).

21 May 2009

The Independent publishes an article confirming that the author of the NightJack blog is a serving police officer but that he does not wish to be identified.

27 May 2009

A Times journalist telephones the blogger to put to him allegation that he is author of "NightJack" intending to publish allegation next day. (PF para 52)

The blogger's lawyers contact the Times and a decision is made not to publish the story in the next day's edition (PF para 56).

Two things are currently not clear in respect of the intended original publication date of 28 May 2009: (a) whether the editor/managers knew at that point hacking had took place and (b) how far the journalist's investigation had got to by this point. None of the print-offs exhibited to the witness statement are dated before 28 May 2009, though that - of course - does not mean that the searches had not occurred by then. Unfortunately, the PF witness statement does not date when the searches were made.

28 May 2009

Date of some print-offs of the NightJack blog in the exhibits to the PF witness sttaement.

29 May 2009

The journalist telephones Monday Books (publishers) in an attempt to obtain evidence that people knew of identity not bound by confidentiality(PF para 1(b)(ii)).

Date of further print-offs of the NightJack blog in the exhibits to the PF witness statement.

1 June 2009

Date of the "Factiva" (electronic news archive) search print-offs in the exhibits to the PF witness statement linking real-life cases to NightJack posts. (This does not mean the searches had not taken place before 1 June 2009, just that they had not been printed off.)

Date of the print-offs from various Ju-Jitsu sites featuring blogger's real name. (Again, date of print-off not necessarily same as date of discovery.)

2 June 2009

Date of the PF witness statement (PF, page 1)

4 June 2009

Private hearing by Sir David Eady of application for injunction (judgment, para 1)

The defence and the High Court are not told that the journalist's investigation included the hacking of the blogger's email.

The defence is forced to concede that the case be decided on the basis that there had been no breach of privacy rights of the blogger (judgment, para 3).

16 June 2009

The judgment is handed down.

The injunction application by the blogger fails.

The judge decides, on the basis of the evidence put before him, that the blogger had no expectation of privacy (judgment, para 33).

17 June 2009

The Times publishes identity of the author of NightJack

The Times later admit they were aware of the hacking at the time of publication.

Reaction to publication:
Jean Seaton (Director of the Orwell Prize)
Graeme Archer (who was to win the same blogging prize in 2011)
Carl Gardner (leading legal blogger at "Head of Legal")

At some point the journalist is disciplined for the hack and receives a formal warning.

The blogger faced disciplinary action and possible dismissal, but is given a written warning.

Then nothing for two years...

...and the phone hacking scandal erupts.

10 June 2011

The Metropolitan Police establish a team to look into computer hacking. This is called Operation Tuleta (Wikipedia page).

11 July 2011

The highly respected Graham Cluley blogs about computer hacking concerns at the Sunday Times (but not the Times). This is also picked up at The Register.

13 July 2011

The Leveson Inquiry is announced.

18 July 2011

Lord Grabiner QC is appointed chairman of a new management and standards committee set up by News Corporation.

19 July 2011

Department of Culture, Media and Sport select committee question Rupert and James Murdoch. Tom Watson mentions allegations of computer hacking at other titles.

Q207 Mr Watson: Are you aware that there are other forms of illicit surveillance being used by private investigators, which were used by News International?

Rupert Murdoch: Other forms of?

Q208 Mr Watson: Illicit surveillance. Computer hacking, tracking on cars.

Rupert Murdoch: No. I think all news organisations have used private detectives, and do so in their investigations from time to time, but not illegally.

Q209 Mr Watson: If it can be shown to you that private investigators working for newspapers in News International used other forms of illicit surveillance like computer hacking, would you immediately introduce another investigation?

Rupert Murdoch: That would be up to the police, but we would certainly work with the police. If they wanted us to do it, we would do it. If they wanted to do it, they would do it.

14 October 2011

Date of first witness statement of Thomas Mockridge, CEO of News International, to the Leveson Inquiry.

20. Have you, or The Times, The Sunday Times, The Sun or The News of the World (to the best of your knowledge)ever used or commissioned anyone who used "computer hacking" in order to source stories, or for any other reason?

20.1 As with my answer to question 12 above, I shall restrict my response to this question to my knowledge of The Times, The Sunday Times and The Sun.

20.2 Neither I nor, to the best of my knowledge, The Sunday Times or The Sun has ever used or commissioned anyone who used "computer hacking" in order to source stories or for any other reason. In relation to The Times, I am aware of an incident in 2009 where there was a suspicion that a reporter on The Times might have gained unauthorised access to a computer, although the reporter in question denied it. I understand that that person was given a formal written warning as a result and that they were subsequently dismissed following an unrelated incident.

Date of witness statement of Times editor James Harding to the Leveson Inquiry.

The Times has never used or commissioned anyone who used computer hacking to source stories. There was an incident where the newsroom was concerned that a reporter had gained unauthorised access to an email account. When it was brought to my attention, the joumalist faced disciplinary action. The reporter believed he was seeking to gain information in the public interest but we took the view he had fallen short of what was expected of a Times journalist. He was issued with a formal written warning for professional misconduct.

Date of interim Director of Legal Affairs at NI Group Limited Simon Toms' witness statement to the Leveson Inquiry.

Explain whether you, or The Times, The Sunday Times, The Sun or The News of the World (to the best of your knowledge) ever used or commissioned anyone who used ’computer hacking’ in order to source stories, or for any reason.

I am not aware that any NI title has ever used or commissioned anyone who used "computer hacking" in order to source stories. I have been made aware of one instance on The Times in 2009 which I understand may have involved a journalist attempting to access information in this way. However, I also understand that this was an act of the journalist and was not authorised by TNL. As such, I understand it resulted in the journalist concerned being disciplined.

10 November 2011

Over a month after the above witness statements are submitted to the Leveson Inquiry, James Murdoch is asked about computer hacking at the DCMS select committee. It is clear he either does not know of or is careful not mention the incident already described in the witness statements already submitted to the Leveson Inquiry.

Computer hacking is first mentioned in general:

Q1546 Mr Watson: There are allegations of phone-hacking, computer-hacking, conspiring to pervert the course of justice and perjury facing this company and all this happened without your knowledge.

James Murdoch: As I have said to you, Mr Watson, and to this Committee on a number
of occasions, it is a matter of great regret that things went wrong at the News of the World in 2006. The company didn’t come to grips with those issues fast enough. We all recognise that.

I have also acknowledged that evidence to this Committee was given without full possession of the facts in the past and that is something that I am very sorry for. What I can tell you, though, is that when evidence came to light and when we finally achieved the transparency that is appropriate, we have acted, and the company has acted, with great zeal and diligence, to get to the bottom of issues, to improve the processes to make sure they don’t happen again, and to make sure that our co-operation with the police, with this Committee and the like is such that we can bring any wrongdoers, if they are proven to be so, to account.

And then in more depth (I have added emphasis):

Q1670 Mr Watson: [...]Can you let me know whether the company admitted liability to e-mail hacks during any of the settled civil cases? I am thinking of Taylor, Miller or Clifford.

James Murdoch: I do not believe so. I am not aware of any of that.

Q1671 Mr Watson: If it is subsequently found, could you go back and let us know if
that’s the case and write to us if you did accept liability? You’ve got some lawyers with you.

James Murdoch: I will consult with counsel about that to hopefully clarify those things, but I am not aware of any of the computer hacking that you have talked about in the past.

Mr Watson: Your lawyers behind you might be able to let you know whether that’s a
yes or a no.

James Murdoch: Would you like me to talk to them now, or can I write to you at some
point in the future?

Mr Watson: Yes, if you just ask them now. We’ve got a bit of time. Yes or no.

James Murdoch: They would like to get back to us. They are not aware.

Q1672 Mr Watson: Okay. At the News Corp AGM a few weeks ago, board director Viet Dinh told me that he would investigate allegations of computer hacking. Has he
discussed that with you?

James Murdoch: No. Mr Dinh has oversight authority at a board level for the work that
the management and standards committee is doing, and I would understand that it’s on the agenda for the management and standards committee and is being pursued with vigour.

Q1673 Mr Watson: Are you aware that former Army intelligence officer Ian Hurst has
now had it confirmed that he is a victim of computer hacking?

James Murdoch: No, I am not aware of that.

Q1674 Mr Watson: And that 16 others associated with him have had their e-mails
illicitly read?

James Murdoch: No.

Chair: Tom, I am advised that you are straying into areas that could relate to the police investigations.

1 December 2011

The law firm representing News Corporation’s Management and Standards Committe write to the Select Committee, and include information on the email interceptions mentioned in the exchange between Watson and Murdoch:

You have asked about the admission of liability for the interception of emails in the Taylor, Miller and Clifford cases. The MSC understands that neither Mr Taylor nor Mr Clifford made allegations that there had been e-mail hacking. Ms Miller did make a late amendment to her claim to allege e-mail hacking. This is a technical legal matter but the MSC has been advised that the order recording the settlement and the statement made in open court did not include any admission in relation to that late amendment.

16 December 2011

Thomas Mockridge, CEO of News International provides a correction to his earliar witness statement

At paragraph 20.2 of my first witness statement of referred to a reporter at The Times who might have gained unauthorised access to a computer in 2009. At the date of my first witness statement, it was my understanding that the reporter in question had denied gaining such access. Following further enquiries, I now understand that the reporter in fact admitted the conduct during disciplinary proceedings, although he claimed that he was acting in the public interest. The journalist was disciplined as result, he was later dismissed from the business for an unrelated matter.

It is interesting that this correction was issued. It may have been that there was a simple mistake. Or it could mean that Thomas Mockridge had not been provided with full information. But by December 2011 the mistake had been noticed and that "further inquiries" had been made into the the hacking of the #NightJack account at a senior level at News International.

9 January 2012

The witness statement of Simon Toms is published on the Leveson site.

10 January 2012

The Press Gazette notice the reference to computer hacking and publish a brief post. It mentions the date of the incident as 2009.

I see the Press Gazette post and wonder whether the 2009 incident could relate to the outing of NightJack.

16 January 2012

I do a quick post drawing attention to the evidence and the Press Gazette post. However, at this stage I have no idea who the journalist was or even if it related to a published story. (I update that post when the other witness statements become available.)

17 January 2012

The witness statements of Tom Mockridge and James Harding are published on the Leveson site.

Taking the four witness statements together it is evident:

- the incident was in 2009;
- the reporter was male ("he");
- the computer hacking was in the form of unauthorised access to an email account;
- a disciplinary process was commenced after concerns from the newsroom;
- the reporter admitted the unauthorised access during the disciplinary process;
- the incident was held to be "professional misconduct" and the reporter was disciplined;
and
- the reporter is no longer with the business having been dismissed on an unrelated matter.

I add the above analysis to my earlier post.

Paul Waugh at Politics Home (who had been deeply sceptical of the Times story in 2009) makes a possible link with NightJack case. The Times admission is also noticed by Fleet Street Blues.

I do a post at New Statesman asking whether the Times has used the hacking in a published story. I email same question to the Times but get no reply.

In the meantime, Tom Mockridge and James Harding had given oral evidence at the Leveson inquiry.

Mockridge is asked specifically about the computer hacking incident:

Q. [...] Can I ask you to clarify paragraph 5. This is the access to a computer by a reporter at the Times. Are we talking about an internal computer or are we talking about a third party's computer?

A. I believe it was a third-party computer.

He is also asked about issues wider than phone hacking:

Q. Are there any specific issues which have caused you concern since you took over as chief executive officer outside the ambit of phone hacking, issues which you've
discovered which you would like to draw to the Inquiry's attention?

A. I don't think there's anything I would draw to the Inquiry's attention separately from the investigations which are progressing and which I think in time results of which will be notified to the authority ...to the Inquiry.

Q. This is the internal investigation --

A. The internal investigation.

LORD JUSTICE LEVESON: This is the one chaired by Lord Grabiner?

A. Correct.

However, it does not appear that Harding is asked directly about the incident.

In the evening, a source tells David Leigh at the Guardian that the admitted hacking was regarding the NightJack case. The journalist is also named. David Leigh also tweets that hacking was used in the exposure.

18 January 2012

The Times publishes the following article, which I set out in full for the purposes of reporting current events and review.

The Times and the NightJack case

The Times published a report exposing the identity of an anonymous police blogger after a journalist at the newspaper had hacked into his e-mail account.

The report in 2009 revealed the identity of the author of NightJack, a popular blog by a police officer who gave behind-the-scenes insights into frontline policing.

The Times’s decision to expose the Lancashire detective Richard Horton was widely criticised at the time but the newspaper said there was a public interest in doing so because his blog contained details that could be traced back to actual prosecutions. A High Court judge agreed that there was a public interest in naming him and overturned an injunction Mr Horton had obtained against The Times.

The e-mail hacking has come to light because James Harding, Editor of The Times, and Tom Mockridge, Chief Executive of the paper’s parent company, News International, were asked questions by the Leveson inquiry about computer hacking.

Mr Harding referred to the incident in his statement, dated October 14 last year: “The Times has never used or commissioned anyone who used computer hacking to source stories. There was an incident where the newsroom was concerned that a reporter had gained unauthorised access to an e-mail account.

“When it was brought to my attention, the journalist faced disciplinary action. The reporter believed he was seeking to gain information in the public interest but we took the view he had fallen short of what was expected of a Times journalist. He was issued with a formal written warning for professional misconduct.”

The witness statement was made public after Mr Harding’s appearance at the inquiry on Tuesday.

Mr Mockridge made two witness statements, the second correcting what he had said in the first about the computer-hacking incident. His first statement, also dated October 14, said there had been a “suspicion” that a reporter from The Times “might have gained unauthorised access to a computer”. The statement added that the reporter had denied doing so but had been given a formal written warning.

However, the reporter, Patrick Foster, who has since left the paper, had in fact informed his managers before the story was published that he had, on his own initiative, hacked into Mr Horton’s e-mail account. The incident raised issues about the approval process for newsgathering at the newspaper.

The role the hacking played in Mr Foster’s investigation remains unclear. Mr Foster identified Mr Horton using a legitimate process of deduction based on sources and information publicly available on the internet.

Mr Mockridge’s second witness statement, dated December 16, said: “Following further enquiries, I now understand that the reporter in fact admitted the conduct during disciplinary proceedings, although he claimed that he was acting in the public interest. The journalist was disciplined as a result. He was later dismissed from the business for an unrelated matter.”

In his original injunction application, Mr Horton said his identity had been disclosed to The Times “in a breach of confidence”. In his ruling overturning Mr Horton’s injunction, Mr Justice Eady said that Mr Horton’s barrister “was prepared to proceed on the basis that the evidence relied upon from Mr Patrick Foster was correct; that is to say, that he had been able to arrive at the identification by a process of deduction and detective work, mainly using information available on the internet.”

Mr Harding said: “The newspaper published the story in the strong belief that it was in the public interest even though concerns emerged about the conduct of the reporter. After the judge handed down his judgment overturning the injunction on the grounds of public interest, we published. We also took the decision to look into the reporter’s conduct and he was subsequently disciplined.”

The crucial points arising from the Times admission appeared to me to be that managers did know about the hack before publication on 17 June 2009, that they were "unclear" about the role it played in the journalist's investigation, and that the High Court and the blogger's lawyers were not told about the hacking.

19 January 2012

In another case, the High Court is told that the News of the World hacked into the emails of Christopher Shipman. Michael Silverleaf, QC, for News Group Newspapers, told the court that the company offered its "sincere apologies ... for the damage, as well as the distress caused to him by the unlawful interception of his emails and obtaining private and confidential information".

This seems to be the first formal admission by News International that computer hacking took place on any of its titles.

20 January 2012

I do a follow on post at the New Statesman establishing that senior managers at the Times knew the blogger's email account had been hacked that but did not tell the High Court.

22 January 2012

The Independent on Sunday reports that Tom Watson MP is calling for James Harding to be recalled to the Leveson Inquiry to give evidence on the computer hacking.

22 January 2012

I summarise the emerging three key questions at the New Statesman as being why the court and blogger's lawyer's were not told, why the DCMS select committee were not told in November 2011, and why the Leveson inquiry was not given fuller information.

I also call for the Times to apologise for the hacking, which it has already accepted at the internal disciplinary was misconduct and should not have happened.

23 January 2012

Tom Watson MP calls for a police investigation. Also reported in the Press Gazette.

COMMENTS MODERATION

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

Computer Hacking at The Times?

2012-01-16T16:57:00.017Z

Tucked away in the written evidence of News International's Interim Legal Director Simon Toms to the Leveson Inquiry was this fascinating revelation, which seems not to have been picked up by any of the mainstream media other than the Press Gazette:

Question Explain whether you, or The Times, The Sunday Times, The Sun or The News of the World (to the best of your knowledge) ever used or commissioned anyone who used ’computer hacking’ in order to source stories, or for any reason.

Answer I am not aware that any NI title has ever used or commissioned anyone who used "computer hacking" in order to source stories. I have been made aware of one instance on The Times in 2009 which I understand may have involved a journalist attempting to access information in this way. However, I also understand that this was an act of the journalist and was not authorised by TNL. As such, I understand it resulted in the journalist concerned being disciplined.

How very interesting.

[17.1.12 This has now been followed up by Paul Waugh at Politics Home and Fleet Street Blues.]

17 January 2012 - further witness evidence from Leveson

First witness statement of Thomas Mockridge, CEO of News International:

20. Have you, or The Times, The Sunday Times, The Sun or The News of the World (to the best of your knowledge)ever used or commissioned anyone who used "computer hacking" in order to source stories, or for any other reason?

20.1 As with my answer to question 12 above, I shall restrict my response to this question to my knowledge of The Times, The Sunday Times and The Sun.

20.2 Neither I nor, to the best of my knowledge, The Sunday Times or The Sun has ever used or commissioned anyone who used "computer hacking" in order to source stories or for any other reason. In relation to The Times, I am aware of an incident in 2009 where there was a suspicion that a reporter on The Times might have gained unauthorised access to a computer, although the reporter in question denied it. I understand that that person was given a formal written warning as a result and that they were subsequently dismissed following an unrelated incident.

Corrected to an extent by his second witness statement:

At paragraph 20.2 of my first witness statement of referred to a reporter at The Times who might have gained unauthorised access to a computer in 2009. At the date of my first witness statement, it was my understanding that the reporter in question had denied gaining such access. Following further enquiries, I now understand that the reporter in fact admitted the conduct during disciplinary proceedings, although he claimed that he was acting in the public interest. The journalist was disciplined as result, he was later dismissed from the business for an unrelated matter.

From witness statement of James Harding, Editor of The Times:

19. The Times has never used or commissioned anyone who used computer hacking to source stories. There was an incident where the newsroom was concerned that a reporter had gained unauthorised access to an email account. When it was brought to my attention, the joumalist faced disciplinary action. The reporter believed he was seeking to gain information in the public interest but we took the view he had fallen short of what was expected of a Times journalist. He was issued with a formal written warning for professional misconduct.

So, we now know that:

- the incident was in 2009;
- the reporter was male ("he");
- the computer hacking was in the form of unauthorised access to an email account;
- a disciplinary process was commenced after concerns from the newsroom;
- the reporter admitted the unauthorised access during the disciplinary process;
- the incident was held to be "professional misconduct" and the reporter was disciplined;
and
- the reporter is no longer with the business having been dismissed on an unrelated matter.

COMMENTS MODERATION

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

Nineteen Eighty-four and 2012

2011-12-31T18:41:00.006Z

The stuff of politics is power.

A political process is the means by which conflicting attempts to obtain power can be reconciled; it seems a truth of human nature (as well as of other animals) that there is always someone who wants the individual currently with any power not to have it.

Subject to this, there are then different types of power.

The brute force of physical coercion is subject to who has control of military and civil police forces.

The power of formal language, backed ultimately by coercion, is the stuff of law and the justice system.

The ability to make allocations of scarce resources is the essence of economics and social policy making.

And perhaps until recently there was the control of information.

The state and the media determined who knew what, and when.

Even now there are politicians and media folk who believe that a "command and control" approach to communications is still unproblematic: the internet and the ability to move and publish huge amounts of data are mere details to be addressed by more regulation.

In Nineteen Eighty-four, George Orwell extrapolates certain themes of the mid 1940s and posits them in the mid 1980s. Some of these he gets right, even now on the eve of 2012.

Big Brother is watching us more than ever.

However, Nineteen Eighty-four accepts that there would still be a "command and control" approach to communications. Winston Smith amends and censors the news record, and Times editorials are exemplars of Newspeak.

One wonders what Orwell would have made of a future where communication was not the monopoly of the elite.

Would Orwell have seen that as just another problem to be managed by the totalitarian?

Or would he not have been able to imagine a totalitarian regime without complete control of the means of communication?

But what is clear is that the government and media elite cannot casually control information flows is something relatively novel in modern politics.

(It is tempting at this point to make a comparison with the Reformation where - some historians tell us - there was a movement against the established churches because people could read the scriptures for themselves, in the vernacular. However, against this lazy caricature is the fact that many still relied on their religious leaders for interpreting scripture: there were just new interpretations and new leaders.)

Will there need to be a new politics in response to the inability of the state and the media elite to now keep complete control over information flows?

Will there be a utopia of informed citizen politics?

Is it going to go all participatory?

The answer probably lies in the other probable truth of human nature (as well as of other animals) that there are always many individuals who don't want power themselves, whoever else gets it.

Those seeking power will usually be a small minority; and the better power-hunters will adapt more successfully to new circumstances.

For example, it was political geniuses such as Disraeli and Salisbury that realised that the new mass electorate in late Victorian Britain could actually be exploited by a popular and well-organized conservative party.

What will happen will be that those seeking power - either in politics or in the media - will now just become more adept at sailing their ships with no full control over the buffeting of the waves.

The best politicians and media leaders will now harness the energy of those willing to spend time synthesizing and interpreting data; there will be a general realisation that the key political skill in respect of information flows will be opportunism, and not management.

Those wanting power - over coercive force, and over law-making and allocation decisions - will still be there. They will still be watching us and intruding on our autonomy.

But - to invoke Orwell again - they will no longer be be able to insist easily that two plus two is five.

They will instead leave it for us to work out whether that is correct for ourselves.

And, sadly, one suspects few of us will.

COMMENTS MODERATION

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Brian Sewell and Women Artists

2011-12-31T17:12:00.004Z

Last month, the Observer published an interview with the art critic Brian Sewell, which included this exchange:

In the past, you've stated that there are no great female artists. Do you honestly believe that?

Well, how many can you think of? None of them is the originator of anything. My argument about Frida Kahlo is that, had she been Fred Kahlo, she'd have been forgotten.

Are there great women in other fields?

Where is the female Mozart? Where's Mrs Shakespeare?

Perhaps she's raising William Shakespeare to be brilliant…

That may be the answer. But when you look at ministers – that poor, floundering home secretary! She is the necessary woman in the cabinet to keep the feminists quiet. She isn't any good.

However, there are another couple of perspectives.

First, in many ways representational art has not developed significantly since the paintings, figurines, and decorations of the prehistoric era.

And we have no idea as to the gender of those true originators.

Second, just think of the inherent advantages men have had in recent human history in terms of access to capital and income to support an artistic career; in terms of access to technical training such as apprenticeships and peer groups such as guilds; and in terms of access to commercial and other outlets for their work so to make the whole artisitic enterprise viable.

Think about how, until recently, it would have been almost impossible for a woman to follow any similar artistic vocation: to make a living from her work and creativity in the recognised fine arts.

And it becomes clear that the real question is not why there have been so few genuinely great women artists or creators, but instead why - with all these advantages - there have actually been so few male ones.

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Erecting a statue of George Orwell

2011-12-26T09:33:00.013Z

Someone is suggesting that a a statue of George Orwell be erected just outside the new BBC building.

On the face of it, this seems a splendid idea.

Orwell and the BBC - civility and decency, the qualities that any thinking and sensible person would endorse - together in one place.

What could be wrong with that?

It is true that for a writer of such a considerable reputation there is little in any formal and tangible recognition of George Orwell - there is, for example, no plaque at Westminster Abbey.

Yes, there is a prize in his name and a fine scholarly collected edition; yes, his books are on the shelves of homes and schools; and, yes, phrases and ideas from "Room 101" and "Big Brother" to "Newspeak" and "more equal than others" float freely in our elite and popular culture.

But there is nothing to go and actually see.

One suspects Orwell himself would have loathed the idea of a statue.

For although Orwell was serious about promoting his writing and his ideas, and was assertive in protecting his interests about payment and publication, he rarely promoted himself in any direct manner.

He was a modest and gentle man, and the notion of any personal ostentation would have riled him, as it would have done for many of his time and social background.

It was not the done thing.

Even his grave shows this lack of fuss.

Stuck in an Oxfordshire village, which he himself did not visit - the funeral was arranged by a friend - the gravestone's epitaph is simple as could be.

No mention of his famous pseudonym and no mention of "writer" - and certainly no crude tribute or awkward versifying - it just has his birth name and dates.

If you want to go and see something about Orwell, go and see his grave.

A statue would undoubtedly have smacked to Orwell - and it really should smack to us - of a cult of personality - the wrongful detachment of the person from their substance.

Indeed, a more appropriate physical monument to Orwell would be based on one of his essays, where he sought to depict the significance of things - a cup of tea, say, or a common toad.

The last thing the legacy of Orwell requires is a statue.

The intellectual and cultural significance of Orwell should not be some fixed monument, promoted by do-gooders to the approval of those in power.

What would be far better would be for people not only to read Nineteen Eighty-four and Animal Farm and the brilliant essays like Politics and the English Language - but to re-read and think about them so as to see if there is anything in there still of general application.

And if we are to have this statue of Orwell, why not have more?

"...the world looked cold. Down in the street little eddies of wind were whirling dust and torn paper into spirals, and though the sun was shinning and the sky a harsh blue, there seemed to be no color in anything except the statues that were erected everywhere. The black-mustachio'd face gazed down from every commanding corner. There was one by the house front immediately opposite.

"GEORGE ORWELL IS WATCHING YOU, the inscription said..."

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Why are lawyers hated?

2011-12-22T16:11:00.002Z

Sitting there, as you scrape the bottom of any barrel, are the lawyers.

They sit alongside the estate agents and the tabloid journalists as those with the jobs that people claim to hate.

Most good and sensible people seem to be agreed that it is perfectly fine to dislike the legal profession.

It is an utterly acceptable social prejudice.

Why is this so?

In some ways, it is a strange hostility.

Few lawyers work on their own account; the usual situation is that a lawyer is acting for someone else.

The classic model is that the lawyer merely offers expertise in the law and advocacy which lay people do not have themselves.

However, it is the lawyer who is deplored, and not their client. To be annoyed that a person or company has engaged “bloody lawyers” or that a situation “has gone legal” is perhaps to implicitly absolve those instructing the lawyers from any real blame.

This disdain goes beyond the lawyers of other people.

Many people dislike their own lawyers and – quite genuinely – cannot see the point or the value in what they do. A letter costing £300, or a conveyance taking three weeks too many to complete, seems to be counter-intuitive.

What is actually being paid for?

And why are clients placed into situations where they feel compelled to pay significant amounts of money for what appears to be little concrete output?

What makes this antipathy particularly odd is that it is often accompanied by sentimentality about the heroic and defiant lawyer. Whether it be Atticus Finch or Perry Mason there is a general sense that whilst lawyers in general in bad, particular lawyers “on the right side” can be very good.

This positive sense is adopted even in personal life: when there is a certain type of crisis, the first thought of many people is to get the best lawyer they can (even if for various reasons such a lawyer is not available, or even in existence).

And any practicing lawyer will tell you of the friends who diss the legal profession one moment and seek free legal advice the next.

So what can explain why lawyers are hated?

One answer perhaps lies in the very nature of law.

The stuff of law consists of words and coercion. Lawyers, like wizards and witches with spells, believe that certain words when set out in formal and learned ways can have particular consequences.

For lawyers these words are contained in contracts, statutes, writs, wills, questions and speeches in court, and so on.

But unlike magical folk, the lawyers’ words can and do lead to real-world effects: for example, the bailiff at your door, or the guard taking you to the cell.

The job of the lawyer is deal with special forms of words, and the worldly implications that those words can have in any given situation.

This, of course, is generally lost on the client.

The business person cannot see why there has to be a forty-page agreement. The defendant cannot see why their advocate cannot simply lie to the jury. The parent is being denied access to their child. All the client can see – or imagine – is a person saying unhelpful and unwelcome things, and then expecting to be paid for it.

That said, it is actually difficult to imagine someone becoming a lawyer just because of greed.

For the same qualifications, there are more lucrative careers in business and finance.

Those lawyers who do earn vast amounts – QCs and City lawyers – are exceptional and their “success” usually down to random good fortune: there are many better lawyers who never become “fat cats”.

Any rapacity is not a feature of lawyers as a whole, though it may be a quality of certain lawyers.

The reason why lawyers are generally disliked may not be down to their actual conduct or their personal qualities.

It is instead because law is both powerful and – in the main – invisible.

Law leaves traces in certain documents and speech acts, and it can manifest itself in the coercive actions of hard-faced individuals; but generally law is equally threatening and elusive.

It is perhaps not so much that lawyers are hated, but that law itself is feared and mysterious.

That this is the case is unfortunate, and it is an entirely fair criticism that many lawyers do not do more to promote the public understanding of law.

Of course, barriers to lay understanding can suit the interests of lawyers. Lawyers have no general interest in enabling potential clients to work out their own legal problems.

And, so to that extent, lawyers really only have themselves to blame.

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Maurice of the Phoenix, RIP

2011-12-18T10:35:00.008Z

Maurice of the Phoenix has died.

I never knew his surname - it turns out to have been Huggett.

And I only once saw him outside of the Soho club he managed, having a coffee in some street cafe on Dean Street.

But I will miss him, though I hardly knew him.

The Phoenix Artist Club - it goes by other similar names - is one of the few places left around Charing Cross Road with any genuine character.

Snug under the Phoenix theatre, it is friendly, rather than exclusive; any person at the reception desk welcomes you, rather than thinking of an excuse to turn you away.

It is packed with odd paraphernalia and theatre lore, but none of it contrived or self-congratulatory.

And it is relaxed and without tiresome pretension; if there are ever famous faces, nobody really cares.

It is one of the nicest places to be in London.

And Maurice was usually there.

If he was, he then put every effort to be make you at ease.

His campness was not that of the person insisting that you take them on their terms; instead, his whole concern was always to make you feel special.

It mattered not a dam who you were.

Many will tell of his kindnesses; but my special happy memory is him agreeing that Phoenix could host my 40th birthday party in the club's backroom.

And here he is - presenting the gift of pink-labelled club champagne to the birthday boy.

Rest in peace, Maurice.

Bell Pottinger - Priceless

2011-12-06T07:32:00.005Z

There is an interesting report in today's Independent about lobbyists Bell Pottinger.

My favourite part is a quote towards the end, from Lord Bell:

"The conduct of the Bureau of Investigative Journalism does not remotely constitute responsible journalism. It is an attempt by unethical deception to manufacture a story where none exists."

Priceless.

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When I am 64

2011-12-04T20:18:00.011Z

When something nice happens to you, you are not supposed to talk about it.

At least that is the British way, and the way of social media.

But something nice happened to me last week, and I would like to say something about it.

I was included in a list of "100 Influential Men" by GQ, a magazine which I had never bought before.

They put me at number 64.

This, of course, is ludicrous.

I can think of 64 "Davids" of far more influence than I could ever muster.

Indeed, there are probably 64,000 more important "Davids" in London alone.

But it was still nice.

And this is why.

Four years ago I lost my job during the Credit Crunch.

No one wanted to pay me to do lawyering.

And certainly no one would have thought to pay me as a journalist.

Then in my late 30s - for the first time in my life - I found something I really enjoyed.

It was writing on the internet about legal and other matters.

Because of this, I managed to return to the profession - specialising in social media and internet law. It also meant I was able to share ideas and insights with similar-minded people wherever they were.

I got carried away with this, without thinking what it would lead to.

There was no grand plan, no "social media strategy" (dear god).

And so after a decade and a half of frustrations and obstructions, I began to enjoy myself, which I never really had done since before university.

It certainly helped my depression, which had dogged me for years, and still does.

(Depression is something else one is not supposed to talk about.)

So that is why it is nice to be on a list like that.

However, what me being on that list is supposed to mean is that Twitter and social media are influential.

GQ could have chosen from hundreds of other bloggers and Twitter users, and made a similar point.

But all the same, I now have a copy of my GQ in my bag and for a week or so, and I will think of ever-more ingenious pretexts to bring it into conversation.

I will put up with the well-meaning teasing and the mean-headed sneering.

Then I will get back to doing what I enjoy most: writing for the internet about law and policy from a liberal and critical perspective.

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Some libel silliness

2011-11-27T15:28:00.013Z

Connoisseurs of badly written, illiberal, misconceived, and generally rather gormless libel threats will enjoy what the estimable science blogger Dr Andy Lewis is kindly providing for us - see here and here.

The author of the threatening letters even insists "You and your supporters can stop asking if I am an attorney".

But there is no need for him to say this.

The letters speak for themselves.

The important post which the "attorney" is trying to have taken down is here.

It is well worth a read.

(By the way, any threatening letters about this blogpost may be published in full and the author referred to the leading case of Arkell v Pressdram.)

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For Leveson and Free Speech!

2011-11-25T15:00:00.005Z

The title above may not have the same ring as "Wilkes and Liberty".

But over at the New Statesman I have set out why the Leveson Inquiry may be doing more for genuine free expression than the tabloids ever did.

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A Citizen's Arrest

2011-11-24T21:51:00.016Z

It is a Saturday morning last June.

I am at a suburban train station seeing my friend off. The train doors begin to shut, and I step back, ready to wave.

To my left, with the corner of my eye, I see someone sprinting from the front of the train.

"That's funny," I thought, "people usually run for trains, not away from them".

That notion wanders around my mind, like Arthur Dent's yellow bulldozer, in search of something to connect with.

Suddenly I am running too.

There had been a shout of "stop thief!" as the running man went past me and so I turned and ran too, through the station hall and onto the road outside.

"That's funny," I was still thinking, "people usually run for trains, not away from them".

I used to sprint quite well for at least a minute, but that was 11 years, and an extra three stone, ago.

But now I was sprinting after a taller, faster man.

"That's funny, people usually..."

Then I realised what I should be doing.

"Right, barrister training, identification, what do I do?"

At Bar School, one thing you are taught quite early on is how to discredit eye witness evidence. "Oh, you say he was tall, do you? So it could be ANY tall man? You don't remember anything more, do you?"

"Right, sex, height, hair colour, build, jacket, bottoms, trainers, fabrics, colours of clothes, memorise them all before he goes out of view."

And then.

"Oh fuck, my ankle."

I had forgotten my ankle, twisted the year before late at night after an Index on Censorship dinner.

The tall running man went round the corner.

I turned the corner, and he had gone.

There was only one other person giving chase, and she now caught up. It was the victim. She was as short to me as I was to the thief.

It was her new iPhone which had been taken, she explained. She had dropped it on the floor on the train whilst at the station, and the man had just snatched it and jumped on to the platform and started to run. She also got off and ran after him, but could not keep up. It turned out that I was the only other person to run after the thief.

We stared at each other, wondering what to do next.

It seemed odd that he had disappeared. If he was still running, I would have been able to see him. I had heard no car or house door close.

He seemed to have silently vanished.

Then, two blokes loading a van beckoned us over. One of them put a finger on his lips, and the other pointed behind a low hedge.

And there he was: the tall running man was crouched in someone's front garden.

"Right, sex, height, hair colour, build, jacket, bottoms, trainers, fabrics, colours of clothes."

It was the same man.

And by him was the victim's iPhone.

The man now tried to run off again. But the two blokes could see how upset the victim was, and so we held him down to the ground.

The man was not happy, first denying loudly - that he did not know what this was about - then making various threats.

However, by this time we had dialled 999, and I told him his voice was now going to be recorded.

He shut up.

I also told him we were holding him only until the police arrived and they could deal with the situation.

On the phone I told the police control room what I could and was careful to detail the identification details I had memorised from the run a few moments before.

And for about ten minutes we all waited in what was the most awkward of silences, whilst the man struggled to get out of being held down.

Eventually the police came and arrested him, and they put him in the back of the van.

The two blokes now moved away, clearly wishing they had not got involved.

They had taken the brunt of holding him and, although sympathetic to the victim, they had not had a great time of it whilst we waited for the police.

The victim was emotional and delighted; she thought she had lost her phone to a snatcher and that no one would help her, and she was gushing with praise to all involved.

It then occurred to me what had just happened - "what if he'd had a knife" - and knew that I had been rather unthinking about the risks.

It turned out the man was a notorious snatcher on the railway network, and that he was wanted for questioning in respect of other and more violent snatches, but that he had never been caught. His method was to steal phones or computers when the train was at a station and to then jump off and run out of the station.

This month, after a series of adjournments, he was sentenced to 32 months, on five counts of robbery and theft. He pleaded guilty. I was told by the police that the identification evidence had been helpful, connecting the person who snatched the iPhone with the man apprehended in that front garden, and once he decided to plead guilty to that charge of theft, he pleaded guilty to the other four counts.

I am not a supporter of vigilantism or of anyone who takes law "into their own hands". I would much rather have a uniformed and professional police force than any alternative. I have no wish to ever perform a citizen's arrest ever again. Nonetheless, I am glad to have helped catch this particular criminal on that sunny Saturday morning.

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Some news

2011-11-24T17:57:00.005Z

Hurrah, I am making *actual* progress on the privacy book.

To make this progress, I have had to cut back on a few things so as to give me more time to work on the book, and also to release mental energy for writing the book well.

One of these things is to stand down from being an active Twitter user for a while; for whilst tweets take mere seconds to write, engaging can be quite draining at times and, as it is something one does not actually get paid to do, it currently seems rather a false economy. This is especially as my one serious remaining ambition in life is to write a decent book.

In the meantime, I will be using Twitter just for links to my posts here and elsewhere. I will also post here at Jack of Kent more often with links.

And so here are a couple of my recent posts:

- on the "Occupy LSX" eviction case which I will be covering; and

- on the Freemen movement and what it tells us about "Bad Law".

I am sure I will be back and active on Twitter before too long, especially as 20,000 accounts now are kind enough to follow me (and not all of them pornbots). I have taken time away from Twitter before and have gone back.

I also can be found loitering at Facebook, where you are very welcome to join me.

Police officers are people who want to put on uniforms so as to coerce members of the public

2011-11-20T12:40:00.010Z

Here is disturbing footage of an American police officer beating a civilian, in front of other police officers.

"Oh, that's just a rogue bad apple police officer beating up a civilian whilst we do nothing to intervene," the other police officers must be thinking.

And, sadly, one can quite imagine an English police officer doing just the same thuggery, whilst their colleagues - usually so very quick to arrest for "public order offences" and "breaches of the peace" - happily look on.

A uniformed police force is better than the alternative of a plain-clothed "secret" police force.

Vesting coercive powers in trained professionals is better than having private armies on the streets.

And public order situations can be very stressful (though that is why expect professional police officers not to just become thugs when under pressure).

But all this said, and for all the good work certain officers do with their powers of coercion and arrest, the people who are police officers share one important quality.

And that is this: ultimately, police officers are the people who want to put on uniforms so as to coerce members of the public.

It is right to be wary of such people - however much they loathe and evade and obstruct being scruitnised and their motives being questioned.

This is not to deny that certain good works can only be achieved by uniformed individuals exercising coercive powers.

But, it must be remembered that police officers only exercise their coercive powers, and wear their uniforms, on our behalf - even if many officers (especially the ones who anonymously blog, comment, and tweet) seem to forget this.

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Jack of Kent's Law of "Witch-hunts"

2011-11-19T10:44:00.006Z

Those who want power without responsibility never respond well to scrutiny.

Religious sorts who want to use public policy to restrict the rights of others will often complain of persecution.

Police sorts who want to casually use coercive powers against anyone they choose will usually become mock-offended and verbally offensive.

But there is a special kind of reaction adopted by those whose obstructions and evasions mean that only a deliberate and sustained method of inquiry could ever work.

The tactic is to characterise that inquiry as a "witch-hunt".

And so the Guardian reports today that News International fears that is facing a "witch-hunt" by victims of their immoral and unlawful intrusions.

This, of course, is pathetic.

It is the bleating of the caught-out playground bully.

One almost expects News International to say "it's not fair", "we were only joking", and "they started it".

Such are the responses of the challenged bully, just as "lessons learned" and "draw a line" are the invariable excuses of the exposed incompetent.

Being unwillingly held to public account within a lawful process is not a witch-hunt.

One hesitates to posit a general law as to this kind of reaction.

However, as the original "Jack of Kent" was a medieval wizard, and so presumably had a view on witch-hunts, I would like to to offer the following adaptation of Godwin's Law:

The longer any person or entity is placed under any deliberate and sustained scrutiny, the probability of someone complaining of it being a "witch-hunt" approaches 1.

I wonder how well this "law" works in practice...

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On Art and 'Art Exhibitions'

2011-11-12T16:52:00.013Z

Every major art exhibition is always the same.

The ticket holders go in with their expensive tickets, and with their guide-books and ear-phone sets, and they look and they stare, and then they shuffle along and look and stare again.

But instead of looking and staring at the painting or other artifact, they look and stare at the typed caption 'explaining' the work of art.

And once they have looked and stared at this caption, they give the painting or other artifact a very brief glance, and they then move on to the next caption.

If you do not believe me, stand back at the next major exhibition you attend, and watch your fellow ticket-holders.

This is what they actually do.

It is almost as if the painting or other artifact is there as an aid to understanding the caption, and not the other way round.

Indeed, a visiting Martian - not versed in what is 'supposedly' happening - would observe this phenomenon, and think that the captions are the works of art really being visited.

I often stand back and watch this phenomenon happen, and I have very naughty thoughts.

I think about charging into every major art exhibition and running around, tearing down the captions, and shouting at the ticket holders: "No! Look at the bloody work of art, and form your own opinion".

And I would keep on doing this, at every major exhibition, until I was arrested by some police officer finally able to work out some plausible ground for arrest.

If charged, I would defend myself on the basis of the right to free expression.

It would only be for the public benefit, to allow people to be free at art exhibitions to actually contemplate the art exhibited.

It would be a mercy.

It would only be for their own good.

(Ahem.)

There is perhaps a more serious point to my threatened screaming criminal rampage though all the major art exhibitions of London.

(Sir, come with me. How do you account for all those exhibition captions in your bag? How many more exhibitions have you done, sir? How many?)

The serious point is this: for some reason, many people seem not to be confident about art.

Though people will readily form their own opinions about what they see on television, there is a certain discomfort when those people are presented with something they are 'supposed' to like and appreciate.

And, to my mind, this is a misconceived approach which makes me want to do something as illiberal as run through every gallery I can find ripping the captions off all the walls.

In one way, it all comes down to that most banal and preposterous of questions: what is art?

An answer to that question - and a completely inadequate answer it is - is to say that art is what is in an art exhibition, or some gallery.

Unfortunately, this inadequate answer is the one which is adopted by many people who really should know better.

They go into some place, with the twin clichés of high ceilings and blandly painted walls, to see something presented which is considered a work of art.

The work of art will of course have a explanatory caption.

Most people will spend longer looking at the caption than looking at the (supposed) work of art.

And in truth it is only being treated as a work of art just because someone has put it in an art gallery.

This how so many "modern artists" get away with such shoddy charlatanism.

We appear to have reached the ridiculous point where the most serviceable answer to what is art is: art is what is placed in an art gallery.

This cannot be right.

A new major exhibition has opened in London: this is of Leonardo da Vinci's paintings during his time in Milan.

Leonardo happens to be my favourite artist. I actually went to Krakow for my 35th birthday just to see the Lady with the Ermine.

But I cringe at the thought of going to this London exhibition.

As far as we can tell, Leonardo himself did not care for "art" and probably would have been horrified at the prospect of his work being in art galleries.

He rarely finished any painting - there are only a few complete works extant - and the ones he did finish were probably because of some demanding patron, or because the work allowed him to solve some technical problem.

Leonardo was interested in sheer observation: the desire to form a view, uncluttered by the conventions of received wisdom.

This is why, by just looking keenly at the spatial relationships of shapes and thinking things through, his notebooks are packed with speculative designs of things which seem advanced for his time, from screws to helicopters.

But it was not not because Leonardo could "see ahead". It was just because he sought to see clearly.

Leonardo would not have looked at captions.

Any one who spends longer reading a caption explaining a work of art than actually looking at the work of art has no business in an art gallery.

Any artist who puts any effort whatsoever in writing the caption, or the catalogue or sales "explanation" of their work, has no business calling themselves an artist.

Should you go to the Leonardo exhibition, or any other major exhibition, just refuse the guide-book and the ear-phones. Refuse to look at the wretched captions unless you want to know the material used and the date of composition.

Then you can enjoy art; for to form your own, personal aesthetic response can be the most wonderful feeling in the world.

And the things in this world that can trigger that wonderful response are the best answer to "what is art" - and they do not need typed captions and white-washed galleries to make them so.

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In memory of Kevin Sharpe

2011-11-06T18:43:00.011Z

The early to mid 1990s were an exciting time to be a history student or teacher, especially in respect of the early modern period.

The lazy conventions of "Whig" and "Marxist" history were being undermined not by mere contrarian counter-assertions, but by diligent research presented in an accessible and attractive way by the so-called "revisionist" historians.

The most well-known of these revisionists was, of course, Professor Conrad Russell, himself a liberal politician and heir to great Whig hereditary title.

Russell's detailed critique of the Anglo-centric Parliament-v-Crown narrative of the years before the "fall of the British monarchies" (not the "English Civil War") was profound: perhaps for the first time in seventeenth-century historiography, causes were connected to actual effects.

Alongside Russell, covering slightly different ground, was Professor Kevin Sharpe, whose untimely death was announced today.

In his magisterial The Personal Rule of Charles I (the knocked-about 980-odd pages of which is before me as I type), Sharpe set out to show that far from the 1630s being a time of increasing tension which "inevitably" would lead to a crisis, there was actually a great deal of stability: it was a personal monarchy which did work - and could well have continued working.

It may well be that the Russell-Sharpe moment has come and gone in Stuart studies: revisionism about the "English civil war" could now be as "old hat" as the interpretations it challenged.

But at the time it was an intellectually exciting debate - and it showed that to dismantle a prevailing school of thought it was not enough to make bare rebuttals; instead one had to do the hard evidential ground-work to show why the new interpretations should be exchanged for the old. And, of course, this is true for many disciplines, and not just history.

I will now put my volume of Sharpe back on the shelf, next to my Russells (and AJP Taylors, EP Thompsons, and GR Eltons). I will probably not have another opportunity to read the near-1000 pages of this great book. But I am glad that I did read it, and I am grateful for the intellectual confidence it (and the works of many other historians) gave for thinking critically about what other people would want me to believe as true.

History sometimes has a mixed press as an academic subject; but in my view there is simply no better way to learn how to properly deal with reasoned arguments based on assessments of documentary and other evidence. (Indeed, I often think it should be a compulsory degree for litigators.)

So I am very proud and fortunate to have a history degree. In the hands of a great historian, the subject has the power to change minds, and to promote an evidence-based approach and critical thinking.

And Kevin Sharpe was a great historian. RIP.

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The abusive thuggery of Judge William Adams

2011-11-04T00:36:00.005Z

Here is an example of some thuggery.

It is the thuggery of a judge.

And I am afraid it is quite disturbing.

(His daughter is interviewed here.)

The statement of Judge William Adams in response to this posted video is here.

What is particularly revolting about this complacent and evasive statement is that nowhere - at all - is there any realisation that the abuse is unacceptable.

It really is quite an astonishing read.

And this is a person who sits in judgment over others.

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Criminal evidence - a very quick introduction

2011-10-28T18:03:00.008+01:00

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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Idiocy at the Cathedral

2011-10-23T20:16:00.006+01:00

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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The Gadaffi Exception

2011-10-20T23:38:00.005+01:00

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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Richard Dawkins is being sued for libel

2011-10-18T17:16:00.002+01:00

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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"Top" legal tweeters...oh dear.

2011-10-11T20:05:00.012+01:00

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.

Sally Morgan and libel: what actually happened in Dublin?

2011-10-09T13:20:00.027+01:00

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

2011-10-09T09:23:00.015+01:00

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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Breaking the law alone in a room

2011-10-08T11:50:00.009+01:00

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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Stupid Scientology Revisited

2011-09-25T21:14:00.009+01:00

Last Monday I went to Cardiff for the first anniversary of Cardiff Skeptics in the Pub.

This was for a joint talk with John Dixon about "Stupid Scientology".

The background to this was a strange day in July 2010.

That morning someone anonymous had sent me a link to a news article about a Cardiff Councillor facing a complaint from a Scientologist for was a tweet about Scientology.

The tweet had simply said:

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

The tweet had been sent in May the year before; but it was not until December that a Scientologist complained about it to the Welsh public services ombudsman, who (in a woeful decision) held that there was a case to answer.

This is what was reported last July; it made page seven of the local paper.

Feeling mischievous, I retweeted the original tweet with the hashtag #StupidScientology.

It then went viral.

By the end of the day, the story had gone from being tucked inside the local paper to an item on Newsnight...

Yes, it was nice to have a hashtag which one had devised read out by Kirsty Wark.

In the end, the Council sensibly rejected the complaint.

It now seems a long time ago, bit it was fun to re-live that curious day through with John upstairs in a pub in Cardiff.

At the time people were genuinely scared of the Scientologists and their litigious and bullying way: the sort of aggressive strategy which Scientologists and others adopted in the old days of the media approach of "command and control".

Nonetheless, I do not regard Scientology as inherently better or worse than any other religion.

For me belief systems based on superstition and the paranormal (or, in this case, Science Fiction) are much of a muchness.

What does matter to me is the wrongful use of litigation to intimidate or deter.

The Church of Scientology has as much right as anyone else to assert and protect their ultimate legal rights.

But it is misconceived and illiberal for litigation (or the threat of litigation) to be used by itself as weapon.

L Ron Hubbard has been quoted as saying:

"The purpose of the [law] 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."

This abuse of the litigation process (and the abuse of regulatory complaints, such as with John Dixon) should be checked; and one merit of social media is that such abuses can be more readily checked.

A cack-handed complaint about a tweet calling Scientology stupid can rebound, and it can provide the Church of Scientology with far worse and critical publicity than it otherwise would have had.

That was the stupidity of the Scientologist who made the complaint.

And that was the meaning of the meme last July of "Stupid Scientology".

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Executing Troy Davis

2011-09-21T17:19:00.005+01:00

Troy Davis is due to be killed by officials of the State of Georgia in only a matter of hours.

The killing has now been approved by the Georgia State Board of Pardons and Paroles.

This State Board, members of which boast of their involvement in religious activities in their on-line biographies, exists in part to authorise the deaths of their fellow human beings.

Troy Davis is just the latest to have his execution approved.

In this one sense, his execution will be unexceptional.

The deliberate taking of life as any kind of punishment is wrong at all times, and in all circumstances.

It does not matter if the execution is widely publicised or if it is not.

And it also does not matter whether there has been some effort at due process, or no effort at propriety at all.

As George Orwell describes in A Hanging, perhaps his most brilliant and moving essay, there is an “unspeakable wrongness” about the judicial taking of any life.

All executions are vile; each one is absolutely wrong.

Nonetheless, the case of Troy Davis is widely regarded as exceptional, and it has attracted international attention and condemnation.

There appear to have been serious irregularities in both the investigation and at trial.

It is said that seven of the nine witnesses at the original trial have now recanted evidence and that someone else has confessed to the original crime.

All these disturbing factors are emphasised in today’s powerful editorial in the New York Times.

Today is now the fourth execution date that has been set for Troy Davis.

Previously his life has been temporarily spared by operation of the criminal justice system.

But there is only so far appeals can seek to check what seems to be an irresistible force of a process intent on ending life.

And this is not some impersonal and abstract process: it is a sequence of decisions and non-decisions by identifiable people with moral agency.

Even if one adopts the horrific misconception of justice that a human life can somehow be taken as a punishment, this is surely not the sort of case where a person should be put to death.

In the United States those in favour of capital punishment in principle (“as long as they are guilty”) are speaking out against its application in this particular instance.

It appears a man will die when there are well-grounded concerns as to his innocence: the State of Georgia is just going to kill him anyway.

Amnesty International has a campaign site for those who wish to try and prevent this execution which I encourage you to visit.

An email in support may even make a difference.

There may be a last-hour reprieve.

But it really does look as if the State of Georgia will kill Troy Davis at its fourth attempt.

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Further thoughts on "David Rose"

2011-09-17T17:56:00.023+01:00

This week it came out who "David Rose" was all along.

I wrote about it here, and - as I said there - I wanted to "draw a line" and "move on".

This was because of two things.

First: for although I believe in intellectual consistency - and so contend that secularist and liberal writers should adhere to the same standards one expects from religious and conservative writers - it has not been a pleasure to have been part of this exercise.

This lack of pleasure is not crude tribalism - I would not hesitate for a second to hold any other secularist or liberal charlatan to account. My discomfort certainly did not affect my work on "David Rose".

Instead it is a general sense that promoting secularism and liberalism should be essentially a positive endeavour, and not a negative one.

(Though, that said, I am currently working on a project to demonstrate and document the systemic dishonesty of another public figure.)

Second: I do not believe in retribution, but in rehabilitation.

That is why I suggested that the real "David Rose" should go to journalism school and that measures be put in place to give his future readers confidence in his journalism.

(I do not know if my suggestions had any actual impact, though I am reliably told they were considered carefully by the Independent's editor.)

What was important to me was that the evidence, and what what it showed, was frankly admitted. I did not want anyone to actually get the sack.

But the "David Rose" matter has not quite come to an end.

It has not been meaningfully resolved.

The adverse evidence has not genuinely been admitted.

In fact, the apology offered in respect of "David Rose" hardly even begins to cover the extent of the recoverable malice and deceit of that fictional construct.

And so that is why I am writing this one further post.

On this blog in July I did (with the fine help of excellent commenters) what I set out to do: which was to, in a measured and libel-safe way, identify "David Rose".

And, in the end, I did not even have to go to the extent of naming him: he had no alternative but to name himself.

For me there was one Wikipedia page and one blogpost which, more than the sad fact "David Rose" was editing the Wikipedia page of Richard Littlejohn on the evening of Christmas Day last year, shows just how wretched the whole business had become.

The Wikipedia page is here.

You will see "David Rose" spends several months in early 2007 convening and then participating in a Wikipedia mediation about whether someone is really the youngest ever nominee for the George Orwell prize (this was for the year before he won it in 2008), and whether a photograph is really that of the subject (which of course it clearly is, it is just a rather unflattering photograph).

"David Rose" even states:

"This is a bit surreal. That picture really isn't Johann. That was my suspicion when I first saw it, and when I e-mailed Johann, he said he doesn't own the clothes 'he' is wearing in the picture."

So "David Rose" was emailing the real "David Rose" to ask if the real "David Rose" has certain clothes, which the real "David Rose" denies, leading to an assurance from "David Rose" that the real "David Rose" doesn't own those clothes.

The blogpost to also look at was the only one which the real "David Rose" acknowledged the existence of his alter ego. (There is now no direct url, though I quoted it here.)

The last sentence of this is particularly interesting; but in its entirety it reads oddly now one knows who is the real "David Rose".

(Emphasis added.)

A friend has just e-mailed me a link to the comments section of the 'Daily Ablution', a blog by right-wing writer Scott Burgess. It's quite amusing. Check it out - it's the first comments box on the page.

Burgess is very fond of writing to left-wing newspapers and demanding corrections in print. Daily journalism written to tight deadlines inevitably involves errors - I make them myself, like everyone else - and all sorts of gadflies can be helpful in pointing them out, even when they have a pretty ugly agendas like Burgess. That's why I'm grateful to him for pointing out an error I made in citing Louis Emmanuel, the hurricane expert, a few weeks ago, for example. As soon as I found out about it I posted a correction, and thanks to him I won't make that mistake again.

But what's so funny is that when Burgess' own factual errors - real whoppers, like citing scientists who say exactly the opposite of what he claims, part of his total illiteracy on the question of global warming - were exposed by Alex Higgins on this website, Burgess posted no corrections. Nothing. Recently David Rose has been writing in his comments box, asking how to contact Burgess' readers' editor to request a correction.

And Burgess has been... totally silent. It has been left to barely-literate posters in his comments box to respond, accusing people like David with real scientific knowledge (a starred first from a degree specialising in environmental science at Cambridge, and extensive work in Antarctica observing the effects of global warming) of being "stupid" and "twerps."

David is quite right when he says, "If Scott doesn't respond to [Alex Higgins'] fair and accurate critique, then I'm afraid his ability to fact-check and critique others is simply shot to pieces."

Next time you read him trying to fact-check a liberal, remember that he has been proven to have no respect for facts - none - himself.

Yes, "David Rose" is actually being quoted in aid here.

Yes, a blogpost is actually being dedicated to praising what the author said as "David Rose" on some discussion forum.

But this Wikipeda page and that blogpost are relatively trivial examples in view of what else "David Rose" got up to.

My serious concern is that the failure of the person behind "David Rose" (and his supporters) to genuinely acknowledge the extent of what "David Rose" actually did means that this issue will not just go away; that the more serious abuses will keep coming out.

It would have just been far better had the ultimate apology not been so weasel-worded.

The apology should instead have been on the basis of full and frank admissions that "David Rose" didn't just make a couple or so errors, and was instead a deliberate and systemic on-going smear campaign and dishonest self-promotional exercise premised on the repeated deceits of (and contrivances by) "David Rose" over his real identity.

In the end, "David Rose" invented at least fifteen biographical facts (from a lawyer girlfriend in Walthamstow and subbing jobs at the Independent and Spectator, to a principled and noisy opposition to the invasion of Iraq) which were simply not true; it was a fluent stream of lies contrived just so that the systemic smear campaign and dishonest self-promotional exercise could carry on and never be exposed.

Ultimately "David Rose" was an intellectual fraud.

It was a structured and enduring enterprise to shape a false intellectual reputation by the deceitful means of over 800 Wikipedia edits (and by numerous online comments on blogs and forums, and also even emails to bloggers). This included the publication of serious libels against other working journalists.

And, until this is admitted in the round, and properly (and sincerely) apologised for, then one suspects the ghost of "David Rose" will not finally be put to rest.

(Postscript: Christopher Snowdon has analysed some of what "David Rose" did here. It isn't pretty.)

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The Met Statement on the Guardian "production order"

2011-09-16T19:12:00.003+01:00

The Metropolitan Police have issued the following statement regarding the production order they are seeking against the Guardian.

The last two paragraphs are the stuff of parody...

"The MPS has applied for a production order against the Guardian and one of its reporters in order to seek evidence of offences connected to potential breaches relating to Misconduct in Public Office and the Official Secrets Act.

"The application is about the MPS seeking to identify evidence of potential offences resulting from unauthorised leaking of information.

"Operation Weeting is one of the MPS's most high profile and sensitive investigations so of course we should take concerns of leaks seriously to ensure that public interest is protected by ensuring there is no further potential compromise. The production order is sought in that context.

"The MPS can't respond to the significant public and political concern regarding leaks from the police to any part of the media if we aren't more robust in our investigations and make all attempts to obtain best evidence of the leaks.

"We pay tribute to the Guardian's unwavering determination to expose the hacking scandal and their challenge around the initial police response. We also recognise the important public interest of whistle blowing and investigative reporting, however neither is apparent in this case. This is an investigation into the alleged gratuitous release of information that is not in the public interest.

"The MPS does not seek to use legislation to undermine Article 10 of anyone's Human Rights and is not seeking to prevent whistle blowing or investigative journalism that is in the public interest, including the Guardian's involvement in the exposure of phone hacking".

Fusspots, and the Four Kinds of Fusspottery

2011-09-10T13:08:00.020+01:00

Every so often one needs to make a determined effort to get to the truth of something.

This may be because the target of one's inquiries is evasive or obstructive, or it may be because they have systems or defences in place which deter or frustrate investigation and scrutiny.

Invariably such a target does not provide a full answer to one's straightforward questions.

In such circumstances, one has to be persistent.

However, when such doggedness (which can yield rewards) is under the full glare of social media, there is often a reaction against one's efforts.

There will be those who will become more concerned about the one asking the questions than the target of those questions.

These third parties will say how they don't think those questions should be asked, or why think other questions should be asked, or that no questions should be asked at all.

This may be because that third party is a partisan for the target; or it can be that the third party simply cannot be bothered to understand what is at stake, but wants to say something anyway.

Sometimes, though not always, the third parties may have a point.

But what is common in each case is that they are more critical of the questioner (or the line of questioning generally) than they mind the target not answering the questions.

This type of behaviour can be regarded as "fussing". By this one means that they appear to have a misplaced concern about something.

And if they are fussing then this allows us to use the splendid word "fusspot" to describe them.

Indeed, we can even use "fusspottery" instead of "fussing" to describe the phenomenon.

There appears to be four primary kinds of fusspottery.

One: "Whataboutery"

This is the simple response of a third party to inquiry [x] of "what about [y]?".

Here [y] may have some or no connection with [x], but it shows that the fusspot is more concerned with something other than inquiry [x].

Two: "Sowhatery"

This is another simple response of a third party to inquiry [x]. This response, however, does not even go the effort of positing an alternative concern. As such it can be regarded as a lazier form of Whataboutery.

Here the fusspot is seeking to discredit or dismiss the efforts of the one posing inquiry [x], usually because the fusspot cannot be bothered (or is unable) to work the significance of inquiry [x] but wants to emit a noise.

A related form of Sowhatery is Iamboredery.

Three: "Notahangingoffencery"

This is for the advanced sort of fusspot.

Here the potential truth of inquiry [x] is conceded (even if the target has not admitted or denied it), but before there is even any question is even answered by the target, the fusspot is giving assurances that its significance is limited.

For Notahangingoffencery to be a genuine form of fusspottery it has to take place before the questions are answered.

Often the sophisticated fusspot will combine Notahangingoffencery with other forms of fusspottery, as in "So what if [x] is true, it is not a hanging offence".

Four: "Witchuntery"

For the fusspot, the allegation of there being a "witchhunt" is merely that they have noticed that inquiry [x] has had to be repeated and the target of the inquiry has not provided an answer.

Here the fusspot cannot distinguish between a determined effort to get to the bottom of something and a fondly remembered scene from Monty Python or The Crucible.

The allegation of witchuntery is thereby used in the attempt to make those asking a question feel very bad about themselves about not just accepting the lack of an answer. As such, the questioners are the ones most at fault.

The analysis above only goes to the responses to questions; it does not go to those reacting against others demanding some sanction ("you must apologise" or "you must be sacked") or those who are just being abusive.

Genuine fusspottery is about someone criticising the questioner, rather than criticising the target for not answering the question.

Fusspots are not necessarily wrong: sometimes there is the lack of perspective or importance that warrants fusspottery; sometimes a demand for sanctions or forms of abuse should be criticised even if in the form of questions. (These are usually rhetorical questions.)

As such, fusspottery should not be discouraged.

But if one finds oneself commenting adversely on someone seeking the answers to questions, rather on the target for not answering those questions, than it may be that there is fusspottery about.

And anyone can be a fusspot sometimes.

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The virtue of coherence

2011-09-03T17:50:00.012+01:00

The leading political blogger Graemer Archer once said of coherence in politics:

Coherence, you see, is the natural consequence of an ideology, and in politics it is rarely A Good Thing. Since an ideologue has a rule book, a device which he or she believes is a perfect description of the rules which govern man's interactions with man, he or she need almost never make any contradictory statements. This follows with probability nearly one, because all political thought will flow from the axioms of the ideology machine.

He concluded:

That's enough. Leave theology to the religious, and ideology to the left. And leave coherence to mathematics. Politics is for humans.

Graeme happens to be a Tory, but dissing what he says just for that attribute is not good enough. He is a fluent and articulate blogger of subtlety and great power; and (as most readers will know) I was a judge of the George Orwell Blogging Prize which made him this year's winner.

So is he right?

For me, coherence is a virtue when thinking about political, media, and legal issues.

When Johann Hari first faced criticism for his journalism, I set out why it was important to hold him to the same standards which would be applied to conservative and reactionary writers.

Similarly, I have also critcised supposed champions of rationalityRichard Dawkins and A C Grayling. On the other hand, I have defended Cherie Booth from unfair criticism in respect of the religious language in her sentencing remarks.

But that sort of stuff is easy; such consistency is the simple avoidance of partisanship (which is a bane of British intellectual and political life).

More difficult is conceptual coherence: do one's arguments in context [A] lose any force because they do not work in context [B]?

Over the last year I have written on a variety of topics, and I do wonder if my position is coherent overall. In each case my argument is made sincerely (I am not a contrarian, though I often get called that); but do all the arguments cohere with each other?

Earlier this week I set out some thoughts on abortion. Here I prioritised the privacy of the woman and said that an abortion is a surgical procedure which is the business only of her and her doctor.

In this, I was being consistent with my views on transgender issues and sex work: a transgendered person's surgery is a private medical matter, and a sex worker has complete autonomy over what he or she can do with their own body.

So far, so coherent; and because the principle of privacy being employed is consistent, I think my overall position is stronger for it.

However, I have also written recently about capital punishment.

There I denied the autonomy of those involved:

But capital punishment demands more than a willing executioner and cheering spectators; it needs for the whole of the State apparatus to be augmented so that the end of a given formal process is the deliberate killing of a human being. The absolute wrongness of the original act is then repeated by the State on our behalf.

This is why capital punishment can be fairly said to be barbaric. It takes something which is wrong, and then projects it on the political and legal institutions of the State: it makes repeating that wrong a purpose of public policy.

Is this coherent with my view of abortion as an essentially private matter?

Is not an abortion also a requirement that "the State apparatus to be augmented so that the end of a given formal process is the deliberate killing of a human being"?

For me, the answers to these questions are informed by my (implicit) denial that the aborted foetus is a human being.

But what of my general support for "liberal intervention" in foreign policy, where people are killed as a consequence of the military actions of the UK State?

Can one oppose the death penalty as a matter of first principle and not also be a pacifist (or at least an isolationist where the military is used only for self-defence)?

At this point, one can imagine Graeme nodding and saying this was his very point. Coherence, by itself, is not a political virtue.

He is certainly right to the extent that something illiberal or misconceived should not be done just because of a general ideological stance.

But when it comes to taking lives (or the taking of potential life), it appears to me that the principled arguments to be deployed should cohere.

If one life (or potential life) is to be taken by the State in one situation, but not in another, it seems to me imperative that the State - and the supporters of the State's policy - should be clear as to what the basis of that lethal or non-lethal action is.

Lives may be at stake from weak or muddled thinking.

Either the State can take lives (or potential lives), or it cannot.

And if so, we need to know why one life is taken but not another when similar arguments could apply.

Graeme is right to emphasise that purported coherence by itself is not a virtue; but in matters of life and death, it seems to me that there should be coherence.

If capital punishment - or torture - is wrong in all circumstances, why is the killing - or maiming - of people by our armed services not also wrong?

Can I really be against capital punishment as a matter of basic principle, but in favour of liberal interventionism abroad?

How come the latter gets the benefit of the "greater good" and not the former?

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Some general thoughts on abortion

2011-09-01T00:37:00.008+01:00

The abortion issue has always seemed to me to be a straightforward matter of personal privacy.

On one side there is the autonomy of the individual (in this case a pregnant woman) competent to decide what should happen in respect of their own body; and on the other side are those who seem to resent and deny the competence of that person to make their own decisions.

Accordingly, the job of the anti-abortionist is to make it as difficult as possible for the woman to make her own decision to terminate a pregnancy, whether it be by the spurious involvement of "independent counsellors" or the use of primary legislation.

No sensible person is "pro abortion" - the question is really who makes the ultimate decision: the woman (in consultation with her doctors) or the legislature.

Parliament has enacted that abortions are (generally) unlawful after 24 weeks.

But if a woman seeks an abortion within the first 24 weeks of her pregnancy, it is surely then a matter for her alone, subject only to medical advice and approval.

This general proposition is, for me, the starting point of any current debate in respect of abortion.

Any attempt to frustrate or remove her access to an abortion within those 24 weeks appears to me to simply have the whiff of misplaced paternalism; it implies that the woman does not know her own mind.

To seek an abortion within those 24 weeks cannot be an easy decision for any woman in any circumstance; but it can only be that woman's decision.

And, by implication, any decision to seek advice or counselling is also for the woman alone; it is illiberal for a woman to be obliged or expected to take advice or receive counselling, should she elect to terminate her pregnancy; again, any such obligation or expectation implies that the woman does not know her own mind.

The heart of the matter is that any woman is - in principle - fully capable of making the decisions for herself as to have an abortion, and what support she requires in doing so.

For me, it is a matter for the woman, and her doctors: a private surgical procedure which is none of your (or my) business.

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Cranmer's Cabinet of Horrors

2011-08-26T12:55:00.009+01:00

The conservative and religious blogger Archbishop Cranmer has devised a cabinet composed of political bloggers.

It is nominally a "coalition" so there are nods to a leftist like Martin Bright and the liberal right-of-centre writer Nelson Jones.

But mostly it reads like a list of right wing blogging horrors, from James Delingpole to Melanie Phillips.

Astonishingly he added me as Attorney-General.

Someone on Twitter says I should be insulted to be on such a list.

However, I see it as an opportunity.

As chief legal adviser to the Crown, the Attorney-General would be able to issue (unsolicited) advice that every illiberal act proposed by the "cabinet ministers" was unlawful, whether it be under EU, ECHR, international, or the Common Law (in respect of England and Wales).

You may remember Blair's wrangling with Goldsmith over advice that the Iraq War was lawful.

That would be a daily problem for my new illiberal "colleagues".

And they would not easily defy such advice, as it is not really open for Her Majesty's ministers to knowingly act unlawfully.

The Attorney-General also would have legal standing to issue judicial review proceedings each and every time they defied the advice.

It would be in the public interest for me to do so, after all.

And in the event the "cabinet" was able to pass any illiberal measures into domestic criminal law, the Attorney-General can intervene and stop any prosecutions.

So it would be a powerful position to be in, should the country ever be faced with Cranmer's Cabinet of Horrors.

Whatever their illiberal ravings, their actions could ground to a halt.

In the words of my learned friend Walter Joseph Kovacs in the leading text of Watchmen on Watchmen:

"I'm not stuck in here with you, you are all stuck in here with me."

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The Story of Hackgate, Part 1

2011-08-24T22:02:00.012+01:00

The story of the current hacking scandal must begin with Clive Goodman.

That is not to say that the broad chronology of all the relevant events to do with telephone hacking and similar tabloid misconduct begins with his fateful arrest on 8 August 2006.

For example, any hacking by or on behalf of other News of the World journalists after the abductions of Sarah Payne (July 2000) and Milly Dowler (March 2002) was well before the arrest of Goodman. And there is no reason to believe Goodman was involved in this.

The open teasing of Dominic Mohan (now editor of The Sun) about The Mirror's use of Vodafone's lack of security for show business exclusives was back in early 2002.

(By the way, we still do not know how The Mirror's then editor Piers Morgan reacted to that.)

Furthermore, Operation Motorman of the Information Commissioner, an investigation into the unlawful trade in personal information involving newspapers, had commenced in 2003. The Information Commissioner's significant - but at the time widely ignored - first report on that investigation was even published in May 2006, two months before the unconnected arrest of Goodman.

So the broader story of tabloid telephone hacking, and of the other unlawful practices in respect of obtaining information, was already old by the summer of 2006.

But it is the arrest of Goodman which is the start of the story of the current scandal, for almost everything which has happened since so as to engage public and political concern flows from that one event, and why it ever happened.

Goodman was royal editor of the News of the World.

One means by which he got stories was by intercepting voicemails. According to reports of his conviction, he made at least 487 calls to royal household telephones for this purpose.

And in November 2005 there appeared a story in the News of the World which prompted serious suspicions that royal household telephone messages were being intercepted.

It is a curiosity of our domestic political system that it was only when the royal household's telephones were being interfered with that the Metropolitan Police had to act.

This means that had Goodman not been so cack-handed so as to use the information from the hacking of the royal household's telephones in a suspicious manner, there may never have been any police investigation.

And when the police did act, they sought to narrow the investigation to the royal household's telephones, even though they had seized substantial evidence from Goodman's accomplice Glenn Mulcaire of hundreds of other interceptions, not related to the royal household.

This collection of evidence from Mulcaire was to be crucial in the events which then followed; but without Goodman's clumsiness, all this information would never have been seized, and it doubtless would not now exist.

Both Goodman and Mulcaire were arrested in August 2006, pleaded guilty on 29 November 2006, and were sentenced to terms of imprisonment on 26 January 2007.

Given the guilty pleas, there was no trial, though there were sentencing remarks of the judge, Mr Justice Gross.

During this time Goodman continued to be employed (though suspended) on the News of the World. He was not dismissed until 5 February 2007, when his contract was terminated with immediate effect.

It is not clear why such instant dismissal was delayed to 5 February 2007.

Goodman had pleaded guilty over three months before, and it appears he had indicated a guilty plea well in advance of November 2006; but it was not until 5 February 2007 that he was sacked

The dismissal letter, dated 5 February 2007, is included in this pdf.

It is worth reading carefully, as what then happens over the following five months in 2007 determines a great deal of the shape of the current scandal.

Part 2 of the Story of Hackgate to follow here at Jack of Kent, but next will be a post at New Statesman on something very interesting which happened at the sentencing of Goodman and Mulcaire on 26 January 2007.

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Jack's Diary - 21 August 2011 - a couple of things about me and Twitter

2011-08-21T17:58:00.011+01:00

I am a bit jaded with Twitter at the moment, especially on the conversational side.

I am sure that it is my fault for "asking for it" but the routine sweary abuse and trolling is now tiresome. (By trolling, I mean someone sending a sequence of adverse or provocative messages with no sincere interest in any constructive dialogue.)

That said, it is a good way of promoting my work and things which I see as of interest or concern.

So, at least for a while, my @davidallengreen account will be used mainly as a channel for links and comments on legal stories and such things, as well as links to my other stuff and activities. I have another Twitter account for friends and contacts I know in real life, but that will be restricted.

I will also stop regularly deleting all my tweets on the @davidallengreen account.

I did this for three reasons: first, they are ephemeral by nature (and so thereby no inherent reason to retain them); second, as a form of risk management against frivolous complaints or threats of litigation (one cannot eliminate the risk, as tweets are stored elsewhere - I am happy to stand by each tweet, but not happy to waste time and money on the mischief-making of others); and, third, it meant I never got to see just how many tweets I had sent...

However, if @davidallengreen is just going to be a channel for links then there will be not as much need to delete.

[10 September 2011 - have done a complete tweet delete, more out of habit than anything. Will try and avoid another one.]

Any thoughts welcome. I have always enjoyed blogging more than tweeting, and this seems rather a good compromise.

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Social media and legal neutrality

2011-08-21T09:43:00.006+01:00

Twitter and social media do not make certain things different.

A scam is still a scam, even if Twitter is used as part of con.

There are allegations by the highly regarded political and legal tweeter @PME200 on his blog as to the real life conduct of the person operating the "Lord Credo" account.

This is not the place to say whether such allegations are correct, though I note the operator of that account admitted to dishonesty before the account was deleted.

However, if the allegations are correct, they do not constitute a "Twitter con".

Instead it was a con that happened to involve Twitter, and not - say - the telephone or the postal service.

Similarly, the "incitements to riot" currently being charged in respect of Facebook are not "Facebook problems".

It just happens that was the medium which was used.

The fact that a social media platform was used should not, by itself, mean that an offence is any more or less serious as long as the requisite elements of the offence are otherwise made out.

This also extends to the Mabus affair (the subject of a thorough blogpost by the excellent Tim Farley).

Like many others in the on-line atheist (complete lack of) community, I had endless spam and death threats from Mabus. I personally regarded the threats as non-credible and deleted them along with the rest of the daily clutter in my inbox.

However, others took a different view (as they were fully entitled to, as it would be them and their families at risk), especially when the strange chap started turning up to events, and organised so as to successfully prompt a police investigation.

For me the Mabus affair was not a Twitter or social media issue; if there were death threats then the police should address their mind to them, regardless of whether the threats were in a tweet, an email, or on a postcard. If the police now take it further and prosecute, they are the best placed to make that decision.

In overall terms, the principle should surely be that the law should be neutral in respect of social media and internet-based publications: a con is a con, an incitement is an incitement, and a death threat is a death threat, regardless of whether it is on a social media platform or by some other medium.

Nothing should be a criminal act - or not be a criminal act - just because it was effected using social media.

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Jack's Diary - 15 August 2011: Riots, Without Prejudice, and Privacy

2011-08-15T21:02:00.003+01:00

Last week, to my surprise, I spent a lot of time blogging about riots.

On Sunday I wrote a post here about how the difficulty in predicting a riot never translates into reluctance by pundits in explaining why they occurred (usually in accordance with the views they already hold).

On Monday at the New Statesman, I warned of the sentimentality one will encounter with those with partisan views on rioters and the police.

On Tuesday, again at the New Statesman, I urged that the riots needed to be kept in proportion, and on Thursday I argued that one need not panic and one should instead treat the offences as normally as possible. In between, partly in response to my friend Evan Harris, I blogged here that the army should not be brought in. And today I also blogged here that the key to explaining casual unlawful behaviour is to look at attitudes to law.

But my most popular post of the last week was none of the above. It was a post at the New Statesmanabout a riot that didn't happen.

However, I have no wish to become an inverse Laurie Penny: with me playing down the politico-socio-economic significance of civil disturbances and reporting regularly on outbreaks of civil peace. So that may be all the riot reportage I will ever do.

The legal podcast Without Prejudice goes from strength to strength. This week's special was my favourite one yet, with regulars Charon QC and Carl Gardner (and me) joined by human rights barrister Adam Wagner, experienced criminal lawyer David Wales, and Evan Harris providing a broader policy perspective. If you haven't listened to it yet, please do download it and give it a try. We have great hopes for this podcast series.

Outiside of blogging, podcasting, and work as a practising lawyer, I have made a renewed go at the (wretched) book. This one will be on privacy law in the round - not just hacking and celebrity injunctions - and it is already going better than the aborted libel book and the slow-moving wider 'Bad Law' book. Let's see if I get any further with it. To do so I may have to stay off that awful time-eater, Twitter, as much as I can, as I like the idea of finishing and publishing an actual book...

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The riots and lawlessness

2011-08-15T10:15:00.004+01:00

The great historian Conrad Russell once wrote:

"In investigating causes, the first necessity is to match them with effects, and it therefore seems a logical priority to begin by trying to establish the effects for which causes must be found.

"If the effects are wrongly postulated, the causes will be wrong also.

"If we discuss causes without any investigation of effects, we are simply indulging in unverifiable speculation."

Conrad Russell, The Causes of the English Civil War (1990)

A great deal of the punditry, and the statements of politicians, since the riots of last week seem not to be based on any clear view of what is actually to be explained.

The socio-economic determinists will emphasise poverty and the "cuts". However, there will be little effort in setting out any direct lines of causation to what took place.

I happen to come from a working class/council estate/comprehensive school background, and I am instinctively averse to any easy link between socio-economic predicaments and unlawful behaviour. Indeed, most of the people who live on council estates, or are impoverished in other urban environments, are more likely to disproportionately suffer from lawlessness rather than indulge in it.

I cannot see how any socio-economic predicament is more or less likely to make one commit a criminal act in any given situation.

Of course, the horrifying poverty and lack of social mobility in many communities is quite real; but I deny that by itself it caused a single thing to be looted or damaged over the last week.

I would like to put forward an alternative point of view, in accordance with Russell's wise words above.

What needs to be explained is the lawlessness, not the socio-economic characteristics of those involved.

A number of people - between one and two thousand it seems - seem to have committed criminal acts last week in connection with the riots. These people, of course, are a minority of all those who committed criminal acts last week, but their criminality was concentrated and under the media glare.

People commit criminal acts for a number of reasons. For example, career criminals do it and see getting caught as an "occupational hazard"; and some people genuinely do not realise what they are doing is a criminal offence. However, these two explanations do not seem to fit the looters and rioters of last week.

Many people commit criminal acts because they believe they will not get caught: that they will "get away with it". Others think that it is acceptable to commit certain types of criminal act: they simply do not care if it is criminal. In both these cases, detection and prosecution always comes as a bit of a shock. It appears that a number of those "caught up" in the riots fit into these categories.

Why are some people likely not to take the law sufficiently seriously so not to regulate their actions so as to avoid criminal liability?

To my mind, the answer to that question is that in this country there is a general disregard for strict adherence to the law.

The journalist Peter Oborne comes close to this in his spirited attack last week on the morality of the political class.

But is not just the politicians.

For every dodgy expense ever claimed by an MP, there is some expense authorised by a newspaper executive for some unlawful intrusion to take place and some tabloid journalist who has paid some corrupt police officer.

And all this, in my view, goes beyond the political, media, and law enforcement classes: people will break the law if they think they can get away with it or think it is "acceptable", from defying speeding limits to dropping litter.

There is a general buzz of lawless behaviour throughout society.

If this is the case, then the riots must be explained in part by a lack of respect for the law for those involved. The riots then provided a sudden and unexpected opportunity for lawless behaviour: a window of opportunity, as it were.

(There is an old joke that some people need a reason for sex, whilst others just need an opportunity. The same surely goes for unlawful behaviour.)

And so if the problem is in part a lack of respect for the law, and a casual tolerance for unlawful behaviour, then I would suggest that the answer is not necessarily more laws and excessive penalties. Although this would have the misconceived attraction of a "crack-down" it would also tend to make the law and justice system seem arbitrary and illiberal.

If a cause of unlawful behaviour is that some people do not respect the law, then part of the answer is to endorse and assert the principles of the rule of law, proportionality, and due process, and to show people that the law is worthy of respect.

Otherwise, we are only making it worse for ourselves.

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Let's not bring in the army

2011-08-09T12:16:00.005+01:00

As the riots and the looting continue, the minds of some are turning to "bringing the army in". It would seem "they will sort it out".

It is not altogether clear why.

Soldiers are not trained to be police officers; they are trained to be soldiers.

This simple point is especially important in respect of exercising any power of arrest and in dealing with public order offences. It may be that the police adopt the wrong tactics sometimes in dealing with public order matters; but at least they have relevant training and experience. The soldier has none.

But more importantly, it is important in a civil society that soldiers are not used against civilians - even if the civilians are violent looting thugs.

There is no need to bring soldiers in: the police actually have all the relevant public order powers to deal with the riots.

If the police are not doing so well so far, then that is a resource or tactical issue which can undoubtedly be resolved without reference to the armed forces.

There may perhaps be logistical support, such as communications and supply, which the armed forces can assist with; they could also maybe help in firefighting and medical support.

But we should not have a society where soldiers patrol civilians.

It was not a success in Northern Ireland, and there is no need to introduce it here.

Whatever our armed forces are for, it cannot be to coerce members of the public.

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Privacy law: black and white and shades of grey

2011-08-07T17:43:00.007+01:00

Does "privacy" have some binary quality?

Do you have privacy, or you don't?

And if you don't, does that make you then "fair game" for intrusions by strangers?

Does it make you "fair game" for the tabloid media for the publication of your personal information and photographs of you to their readers?

Take for example, John, a gay man.

John was not quite the only gay in the village, but his family and neighbours back home have no idea of his sexuality and, being reactionary and religious sorts, they would rather disapprove. He would rather they didn't know.

John, however, freely walks around central London with his boyfriend. Sometimes they hold hands; sometimes they even kiss in public. Nobody in London really notices; nobody in London really cares.

He is not a celebrity, and he has certainly never made any public pronouncement about sexuality. It would never have crossed his mind.

But one day, without his fault, he gets mixed up in a major news story, as members of the public can do. A tabloid now wants to splash a story about him and his boyfriend, with a photograph taken surreptitiously as they walk down Oxford Street; even worse, it is the tabloid his parents' read. Stephen the reporter phones John up first, so as to "get his side of the story". Stephen considers John's actions in the street as "fair game".

Does John have any "right" to privacy in these circumstances?

Should John have the right to determine when to tell his family and family's neighbours about his sexuality, or even to elect not to tell them at all? He is not a public figure, nor has he sought fame; but he is no longer in charge of when such personal information is to be published not only to those back home, but to the world.

Does the simple fact that he held hands with a man and kissed him in public in London mean that, in an instant, he loses his privacy rights about his sexuality?

Or are there things one can do nominally in "public" which do not trigger any right for any stranger to broadcast that thing to everyone else?

Scenarios like this provide the complications for the emerging law of privacy.

The difficult examples (at least for some) are those where a person is in public - say a beach or a quiet town or street - but has a subjective expectation of privacy. Should that expectation be protected by the law in any way and, if so, how?

Such privacy can work both ways: it isn't just about the Johns of this world. Indeed, little known to John, his parents and their neighbours - even with their backward opinions about homosexuality - or go down a local public house on swingers' evenings. They too do "private" things in "public" places, and they would not want John to know.

And Stephen, the tabloid reporter who wants to expose John, also routinely receives "private" information from his sources in public places, perhaps in the street or in snack bars, or chatting on his mobile telephone. Is that information also now "public"? Can anyone publish it? If what John does in public "fair game" why is that not true for Stephen the tabloid journalist?

In fact, all people want privacy in nominally public places. If every act outside the home or workplace was to be shown to the world then people would surely not be able to properly function under the glare.

But that said, it is less clear where the law - the formal ability to enforce rules backed with coercive force - should intervene.

If privacy in public places consists of shades of grey, how does the black-and-white world of the law fit in?

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Predicting a riot

2011-08-07T13:04:00.004+01:00

A long time ago, when I studied history at university, we spent a couple of weeks on riots and civil disturbances in eighteenth-century England.

We discussed the seminal works of Marxist historian E. P. Thompson, especially his stimulating notion of a moral economy of the crowd.

There was a sense of balance - of justice - in any given community, and disorder was the natural result where factors led to an unbalance.

So, I asked, what about the Gordon Riots or (nearer to home for me as a Brummie) the Preistley Riots?

Oh, came the response, that was just bigotry.

It was then the realization came that people with political opinions tend to find exactly what they want in any civil disturbance.

Radicals and leftists find underlying socio-economic causes for certain riots, and mass vulgar prejudice for others. In turn, conservatives from Burke onwards tend to see any civil disturbance as being a failure of "law and order".

The actual riots are rarely predicted; but when they happen, people with political opinions tend to immediately know why they happened - what really caused them.

There was a riot last night in Tottenham. By the early hours it had spread down the road to Wood Green. It started outside a police station; it ended with the reported looting of consumer goods. A police car was set on fire; and so was a bus and (it seems) some buildings.

The great historian Conrad Russell once pointed out that before one posits causes, one must set out the effects one is actually seeking to explain.

And with many civil disturbances there are a range of effects which one seeks to explain: from conscious protests and articulated grievances to arson and mere vandalism. No one ideological model seems to provide a full explanation: demanding justice does not add up to looting; insufficient policing does not explain the concentration of people outside any police station.

In fact, civil disturbances are invariably used to validate political opinions which people already hold; no conservative or radical will ever say, "Gosh, that riot changes the way I think about society. Perhaps my principles or my policies are wrong?".

In this respect, civil disturbances are profoundly reactionary: they tend to reinforce rather than challenge views which already exist.

There were many causes of what happened last night in Tottenham and Wood Green; but that is just because a lot of rather different things happened. Accordingly, there may be a limited extent to which there is a single "solution" to what is seen as the problem.

But there is a general rule - few people accurately predict civil disturbances; and afterwards, few people have any doubt as to why they happened.

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Jack's Diary - 5 August 2011

2011-08-05T17:47:00.013+01:00

Right, I am going to try and do more updates here on what I am doing elsewhere.

At the New Statesman, I did a post today on "The Struggle for Tabloid Content". This pulls on my general view that to understand the phone-hacking scandal - and a great deal else about the tabloid press in this country - one has to grasp the dynamics of the newsroom and how "stories" are put together.

One reason we have the developing scandal now is that the means by which content was bought and sold, and obtained originally, will have left lasting evidential traces: financial and computer records, for example.

So that is why it will not just "go away".

I have also restarted "the book". I found writing the general "bad law" one a chore, and I am bored shitless of writing about libel. (I like to think that I have done my bit for libel reform, unless a new illiberal and misconceived case comes along.) So the new book is about privacy; and I have a plan, loads of materials, and a research assistant. Let's see how that goes.

I am also doing more podcasting and - gulp - even television stuff. I have no doubt this will end badly. However, in the meantime, please do listen to the Without Prejudice podcasts, which come out roughly every two weeks. And, if you really must watch, here is me (and, yes, that is my hair) on Sky News.

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Diving Accidents, Negligence, and Insurance

2011-08-03T21:14:00.012+01:00

Whenever I read of a case such as that of Kylie Grimes, who was left tetraplegic after diving into a swimming pool, I usually have two reactions.

The first reaction is a humane feeling of empathy: we all do stupid things, and there by the grace of sheer luck go any of us. Just imagine if the stupid things we have done meant we all had ended up with severe disability.

The second reaction is anger.

The anger is for the smug sorts who always scoff at the claimant for bringing such a case at all. The knowing ones who say that "of course it is the claimant's own fault" and "they only have themselves to blame".

This response show a lack of understanding as to why such cases are brought.

In fact, such negligence cases are always artificial; they are framed just so as to obtain proper funding for the care the victim needs for the rest of their life. The costs of that care will always be high, regardless of whether the victim can successively frame their case as a negligence claim or not.

Perhap the wisest thing I was ever taught at law school was said by Ray Hodgin, the expert in the law of insurance who taught the tort course at Birmingham University.

"Always remember," he said, "that the law of negligence is part of the law of insurance, and not vice versa".

Indeed, in practice, many negligence claims - especially in the field of personal injury - are insurance driven (or driven by there being a defendant with assets).

Read the judgment of the Kylie Grimes case carefully; see how the eventual decision as to whether she will get monies to cover the rest of her life depends on a sequence of assessments of law and evidence as to her and others' culpability.

But there is no assessment of her needs as a tetraplegic, though those needs will be the same whatever that outcome of this judicial exercise.

This is surely not the way that those who have very serious accidents should be dealt with.

In my opinion, those who have had very serious accidents should be entitled to appropriate compensation without the lottery of a negligence claim. A central fund should be established, financed by insurers, for those who have serious accidents and require life-long care. It probably would be cheaper for the insurance companies than fighting litigation. I understand this is the sensible approach of other countries.

The law is useful for certain purposes, but the law of negligence cannot be the best way of determining whether those who suffer very serious accidents get the resources they need to have appropriate care.

It may well be that sometimes it is "all their own fault" but in a civilized society the lack of funding for the care of the seriously injured is our responsibility, and not that of the claimant.

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The Five Principles of Legal Blogging

2011-07-31T19:59:00.003+01:00

There is a debate taking place amongst some legal bloggers as to the nature of legal blogging. The issue is becoming complicated, with multiplying categories and sub-categories; and it also becoming perhaps fraught, with accusations and denials.

So it seems a good moment to put forward some rather simple propositions, almost statements of common sense, on which all of those engaged in blogging about legal matters can perhaps agree.

These are not prescribed rules; but they are broad articulations, based on experience and reason, as to what legal blogging should be about.

One: Get the law right

In a way, this may be the only principle.

It means that one should not purport to state the law - either in terms of substantive law or procedure - unless one is confident that it is being stated correctly and as fully as necessary.

If one gets the law wrong, then it should be corrected as soon as possible. If the law is significantly changed or developed, and your blogpost still has traffic, then an addendum may be required.

Two: Use links and sources wherever possible

A good thing about blogging - and internet writing generally - is that one can link to sources. It is like pampheteering, but with electronic footnotes.

Law blogging in particular lends itself to linking to sources (as does science blogging), whether it be to statutes, case law, official guidance, procedural rules, or news stories.

Linking is good in itself, but it also provides the wider benefit of de-mystifying the law. There will always be a need for lawyers, one supposes, but it would be a good thing if citizens felt ever more comfortable looking up the law for themselves.

Three: Do not argue from authority

One does not provide legal advice by general internet writing. Although one may well have formal qualifications and be in practice, this does not matter for law blogging. Indeed, some of the best law bloggers have never practiced.

The purpose of law blogging is to explain, not to advise or prescribe. Accordingly, anyone can be attempt to be a law blogger. If the relevant law is set out correctly, and is properly sourced, then it matters not if the author is a QC or a lay enthusiast. Your explanation of the law should just stand for itself.

Four: Blog responsibly about live cases

Some law blogging involves writing about cases which are current. In criminal cases, this may mean pre-arrest or before any charge; in civil cases, it may be before a letter of action; and in both criminal and civil cases, it may be during a trial or appeal. Whilst no-one expects a lay blogger to know the detail of the laws of contempt of court or perversion of the course of justice, common sense will often guide what you should or should not be writing. The same goes for writing about injunctions (and supposed superinjunctions).

There are plenty of people who will happily disregard any constraints on what they can write on the internet. However, in this one regard - if no other - law bloggers should provide an example to follow.

Five: Be transparent

Conflicts of interest can affect anyone in legal blogging, not just practitioners promoting their practices. If on has a direct interest in the outcome of a case - or anything else - then either do not write about it or declare what your interest is.

So there you are, five principles, and nothing too controversial...

...thoughts welcome.

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On capital punishment

2011-07-30T11:40:00.008+01:00

A prominent political blogger has launched a campaign for restoration of capital punishment.

Some doubt that blogger's sincerity in doing so. If he is insincere, then it would be a rather crass form of opportunism for a blogger to promote his site by urging more people to be killed than otherwise would be.

But his sincerity ultimately does not matter.

This is a debate which needs to be aired every so often, and the argument against capital punishment is one which needs to prevail - and be seen to prevail - each time the debate takes place. People's minds can be changed.

First of all, there are some easy practical points to make against capital punishment. For example, capital punishment is not actually cheaper, as the costs of the inevitable appeals and re-appeals mean that it is rather an expensive process. It also places witnesses further at risk, as the murderer now has every interest in avoiding detection and capture.

Of course, the most significant practical argument against capital punishment is that it is irreversible.

Any mistake cannot be rectified. It relies entirely on the efficacy of a criminal justice system which, at best, can lead to determinations of guilt "beyond reasonable doubt" (and that is often got wrong). The criminal justice system does not provide the means of making decisions based on absolute certainty. Indeed, each component part of the criminal justice system - police investigations, media clamour, prosecution decisions, conduct of trials, soundness of appeals - can go wrong. There is nothing to suggest that the judicial taking of human life would be based on any infallible process.

Then there are the points to be made about the intellectual confusion of many who support capital punishment. There are the "libertarians" who do not accept that the State has the legitimacy or competence to administer taxes or provide the police with powers but then contend that the State can rightly and safely take lives. There are those religious fundamentalists who blithely disregard the imperatives of their own holy texts.

And then there are those who favour the deterrence argument, who contend that the deliberate taking of life by the State somehow sends a signal that the deliberate taking of life is wrong. Even on its own terms, taking a life as a "deterrent" is manifestly unjust: it means that the punishment is not on the basis of the facts of its own case, but on the basis of speculation about incidents which may never exist.

However, none of the above points are conclusive, even if they are compelling to any sensible person. One could accept all the points so far made and still, in one's gut, believe that capital punishment is not wrong and so should be made available to the courts, perhaps only in exceptional circumstances.

This is the view which I am seeking to challenge.

Such a sentiment is often premised on murder being a uniquely bad crime and that it is not capable of being punished by mere imprisonment.

That murder is a uniquely bad crime is generally correct (though there are other serious offences against the person which also render the victim with a life which is effectively over).

The deliberate taking of life is a revolting act which requires severe punishment.

However, it does not follow that for the State to then deliberately take the murderer's life that there has been some morally right outcome.

The deliberate taking of life is still absolutely wrong, even when it is orchestrated by police, lawyers, and executioners. All one has achieved is another moral wrong.

Capital punishment is wrong because it formally requires other people to be complicit in the deliberate taking of human life.

One may have the enthusiast who would "pull the lever themselves" but one often gets people who want to kill others for the "right reason".

But capital punishment demands more than a willing executioner and cheering spectators; it needs for the whole of the State apparatus to be augmented so that the end of a given formal process is the deliberate killing of a human being. The absolute wrongness of the original act is then repeated by the State on our behalf.

This is why capital punishment can be fairly said to be barbaric. It takes something which is wrong, and then projects it on the political and legal institutions of the State: it makes repeating that wrong a purpose of public policy.

And this is not to be a "bleeding heart liberal" about murderers. One can readily support "life meaning life" with no possibility of parole.

But killing people, like torturing people, is wrong; and is still wrong when it is arranged and done by officials on our behalf.

Two wrongs make two wrongs.

(As a footnote, I supported capital punishment as a teenager. I was brought up in a Tory environment, and I held many illiberal views about "law-and-order". But with the patience and kindness of decent sensible people my opinions were challenged and exposed as incorrect and inhumane; because of this I arrived at all the positions I set out above. That is why I regard engaging in debates as important. The devil may well have the best tunes; but the liberals will usually turn out to have the better arguments.)

Addendum

Also see this excellent post by Charon QC, doyen of legal bloggers, setting the background to the current debate.

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Who sent that email to Louise Mensch MP?

2011-07-29T18:08:00.010+01:00

The brilliant response by Louise Mensch MP to an "investigative journalist" has rightly gone viral.

I wrote last week at the New Statesman about the concerns that she was facing an intimidation campaign.

In view of this, it is perhaps interesting that the email which was sent to Louise was not from a formal newspaper email address but from "davidjones1232@gmail.com".

It is also interesting (and I have seen the original email) that it was copied to both Patrick McLoughlin MP (the Tory Chief Whip) and the chair of the Conservative Party.

How very bizarre.

Was it really an investigatory journalist? (There is no doubt that Louise thought it was and that is why she responded the way she did, and waited until Friday afternoon to do so as this can "spoil" a weekend exclusive.)

If so, which title was he working for?

Was it instead a "friend" or former colleague?

If so, why would they want to damage her by copying in senior Tories?

Who could it be? Who exactly is this "David Jones"?

And what did they want to achieve by sending the email?

ADDENDUM (30/7/11 at 17.30)

Helen Lewis-Hasteley, assistant editor at New Statesman emailed "David Jones" about the email:

Dear David,

My name's Helen and I work for the New Statesman. I read Louise Mensch's post about your email to her asking for her reply to allegations of drug-taking and other misdemeanours. I was hoping to write a blog post on her unorthodox - but widely praised - response. I wondered if I could ask you a couple of questions, for publication:

- Are you a freelancer or attached to a particular publication?
- Were you writing the story for a particular publication?
- In light of Louise Mensch's response, do you still intend to publish the original story you asked for a comment on?

This is his reply:

Dear Helen

Thank-you for your message.

The people who passed me this information about Mrs Louise Mensch were concerned that:

1. Louise Mensch supports the criminalisation of the drugs trade. They feel that Mrs Mensch may have further questions to answer with regard to the type of drugs she took. Their feeling is that the blogger jd-baker (http://jd
-baker.com/2011/07/louise-mensch-on-parliamentary-drug-use/), summed up the situation better than any other report from yesterday or today. *"**The only
gripe I have with Louise Mensch is that she still supports criminalisation of the drugs trade. As such she is saying that young people such as her former self should have their lives ruined by a criminal conviction, and possible custodial sentence. Would her life have panned out in the same way with such a tarnish on her record? If not then how can she condone this happening to other people? In supporting criminalisation she sadly defends a policy that has failed to effectively tackle addiction rates, or associated criminal behaviour."*

2. Louise Mensch is part of a committee looking into law-breaking. The taking of drugs is also serious illegal activity, one that kills and destroys millions of lives each year.

It is encouraging we live in a country with a free press, where illegal activity can be published.

With thanks

Louise Mensch MP has sent me this comment on the "David Jones" reply.

This is wholly disingenuous. My comments on drug use were posted yesterday, after this expose; as a search of Hansard will confirm, I have never spoken about drugs prior to this story.

Secondly, what possible relevance does "Mr. Jones" points 2 or 3 in his email to me have to this excuse?

Thirdly, in using the name "David Jones" he is using the name of a well-known investigative journalist at the Daily Mail. He additionally copied my Chief Whip, knowing who that person was and his email address, and the Chairman of my party. Those are actions of a journalist, who would understand such things.

His defence of a "free press" is nonsense. Let him state which paper or magazine was proposing to publish this story and let him give his real name and a phone number to the rest of the press.

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Without Prejudice with Joshua Rozenberg

2011-07-29T17:33:00.003+01:00

The latest "Without Prejudice" podcast has me and "Charon QC" discussing the Leveson inquiry, the Star Wars copyright dispute, and the relationship between legal blogging and legal journalism.

And we get to discuss these issues with...Joshua Rozenberg!

Have a listen here. I hope you enjoy it.

An open letter to Chris Blackhurst

2011-07-26T08:58:00.007+01:00

Dear Chris Blackhurst,

You will have seen the Open Letter to Andreas Whittam Smith published today by my fellow New Statesman blogger Guy Walters.

This is just a follow-on from that, written from a slightly different perspective, by someone who shares the concerns about your employee's journalism but does not want to see your employee either humiliated or unfairly treated by the present (and past) management of the Independent. It is in the nature of managers - and those with power generally - to protect their own positions; and so my worry is that there is face-saving operation being conducted under the cloak of an "investigation".

Whoever is "David Rose" (and there is conclusive evidence as to who it was on at least one occassion, should your investigation really care to find it) there is no doubt that an Independent IP address was used to amend Wikipedia entries of those opposed to your employee in various public debates. The Wikipedia user has now been barred for violation of Wikipedia policies. As (at least some of) the editing was from an Independent IP address, there perhaps should be an apology by the Independent to those who were smeared and defamed by this "David Rose". The use of the IP address is surely enough to trigger this apology; there is no need to also unmask the person in question before that apology is given.

In respect of your employee's previous journalism, the issue is not that he be "punished". Unlike other journalists and reporters, there is no suggestion of any crime.

Instead, your readers need to be alerted to the possibility of information not being soundly based in his previous articles. The standard of your employee's writing is very high, and his pieces are informative and often moving; there is no need for them to be taken down from your website or deleted, as it were, from your back catalogue. All that is required is a simple "health warning" to be posted on each article, saying - as neutrally as possible - that there may be quotes and and factual assertions which have not been properly sourced and that the reader should take that into account.

And as for your employee, who must be under considerable stress and worry, please consider sensible options such as sending him on a journalism course and assigning him to an experienced sub-editor. There is no need for him to carry all the burden of what, as is implied by Guy Walters, seem like far wider managerial and editorial failures. You have a moral, as well as legalistic, duty of care to him. All that his fans of his polemical writing (of which, in general, I am one) want is the confidence that they can rely on any factual assertions in his future writing. That will not be difficult to put right.

Best wishes

David

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Hari and the Independent

2011-07-24T18:02:00.007+01:00

As one of the bloggers and journalists who recently posed questions for Johann Hari to answer about his writing, it may seem either very appropriate - or not appropriate at all - that I am rather concerned about how all this must be affecting him. In particular, I do hope his employers are properly looking after their employee.

If it turns out that there were faults, then - as he was (and is) a young journalist - it is clear that those responsible for editing his work also have difficult questions to answer.

Whatever happens, I do trust that those at the Independent who allowed such allegedly bad journalistic practices to continue do not try to blame it all on Hari.

I actually admire Hari's polemical works, and so I want him to come out of this affair a better and more rounded journalist.

I am certainly not taking any pleasure in any of this (unlike, it must be said, some others).

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How did Piers Morgan react?

2011-07-24T17:32:00.004+01:00

Piers Morgan was editor of the Mirror in 2002 when Dominic Mohan made a comment thanking "Vodafone's lack of security" for the Mirror's showbusiness exclusives.

Given the robust reaction of Piers Morgan to Louise Mensch MP's recent mistake at the select committee hearing, I wonder what response he had then to Mohan's comment?

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When Privileges Collide

2011-07-19T20:39:00.017+01:00

The British Constitution is a polite conversation.

There are tensions, but they are rarely articulated.

The parties know full well that confrontations are possible, but good sense and good manners will usually ensure that nothing becomes too embarrassing for anyone involved.

And so it is with the various "privileges" and analogous rights known to English law.

A privilege confers a right - often an absolute right or discretion - on those who wish to invoke its protection.

There are a number of such privileges in English law.

For example, there is "parliamentary privilege" which ensures that anything said in respect of parliamentary proceedings is free from any civil action or criminal law sanction.

There is also the universal jurisdiction of the High Court. There is no "order" which the High Court cannot make, even if it is futile and not capable of practical execution.

One of the most intriguing aspects of the Trafigura litigation was the possibility that a High Court injunction could be held to restrain parliamentary privilege: an unmoveable object and an irresistible force.

In the end, the apparent conflict was resolved, as it often is in domestic matters before the crisis comes to a head.

Today's evidence by James Murdoch at the select committee is suggestive of another such conflict.

He was relentless in blaming the external lawyers: the more he called them "distinguished external counsel" the more he dumped on them.

His lawyers cannot say anything back: News International have "legal professional privilege" which prevents disclosure of their legal advice. There will be confidentiality obligations too.

But.

But what if the House of Commons were to summon the external lawyers and ask them to give evidence?

It may be that the lawyers could not be compelled to provide evidence on pain of "contempt of Parliament".

However, if they chose to give evidence that would surely be free of any threat of civil suit.

Parliamentary privilege would trump legal professional privilege and confidentiality. (Though there may be professional code aspects not rebutted by Parliamentary privilege.)

It would be a fascinating prospect, not least for constitutional law geeks.

A staple of story telling since early human history is to pit two absolute powers against each other. The tradition continues in superhero comics and fantasy films.

There is always drama in the clashes of titans.

The skill of the storyteller is not just to posit such a match, but to engross the listener or reader in how the contradiction is resolved.

Could "parliamentary privilege" be used to defeat "legal professional privilege"?

Or would the latter prevail?

One does not know what would happen when such privileges collide.

The Murdoch Crisis as Pulp Fiction

2011-07-15T22:24:00.003+01:00

Les Hinton, the fixer and seeming architect of the "one rogue reporter" narrative is reported to have resigned from the Murdoch empire.

Hinton was very much the "Mr Wolf" to Rupert Murdoch's "Marcellus Wallace".

He solved problems.

So he helped when the hapless duo Andy Coulson and Rebekah Brooks - "Vincent Vega" and "Jules Wingfield" - messed up.

To protect Wallace, Vega and Winfield, a dead body called "phone hacking" was dealt with by Mr Wolf.

The problem was 'closed down'.

Unfortunately, this Mr Wolf was not very good at burying this story.

It was not closed down.

And, perhaps unfortunately, it would now also seem that this time round that the police-uniformed Zed may actually get his way with Marcellus Wallace...

The Porn Thing

2011-07-13T19:50:00.015+01:00

When I first posted my last blogpost on Jack of Kent, it included a link to and some text about pornography.

The pornography happened to be fictional written gay incest pornography involving a minor.

My inclusion of the link and the text prompted little initial controversy (you can see by the many comments on that blogpost, where hardly anyone mentions it).

However, it was picked up and emphasised by some right-wing bloggers.

Their use in turn prompted some people with decent and sensible views to say I was "disgusting" and a "homophobe".

It was also, rightly, pointed out that my description of the content on the site I linked to was irrelevant to the substantive point I wanted to make: the point being that it could be shown that the email address central to my story was in use. In response to this observation about relevance, I decided to edit my post so as to remove the link and accompanying text.

However, I would like to now provide my account as to why it was in the initial post to begin with.

First, there was the point about it showing use of the email address. And as the "David Rose" openly admits to the email address being associated with porn in another passage I was to quote in my post, I did not think of it being controversial and so I included it so as to show the completeness of the research exercise. I was just showing where the evidence took me on an evidence-based approach.

Second, as I was going to have to set out the relevant email address in full, it was perfectly likely it was going to be found by those who were going to research into the use of that email address. On reflection, perhaps I should have not published the email address, knowing that would lead to people discovering the pornography in question.

But the the third reason is the most telling of all.

There is a distinction between criminal acts and their fictional representation. A murder novel is not an endorsement of murder in real life. It is entirely right that sexual acts with minors are criminalized and harshly punished. But that does not mean, say, the novel Lolita should also be criminalized.

So my response to the content was to simply note that it was an extraordinary and unexpected stage in the story I was telling, and move on.

I do not have a worldview which condemns fictional representations of criminal or otherwise unlawful behaviour. I instead believe that the behaviour itself should be criminalized. I am happy to have this worldview, but it did lead me to use the link (and the content at the link) in the way I did.

But.

It was a mistake. I did not foresee how right-wing bloggers were going to use it.

For what it is worth, I particularly condemn the use to which it was put by Damian Thompson and Cristina Odone, and I would ask them that if they value the work of this blog and its commenters, to please stop using it in the nasty way they have done.

I was wrongly expecting people to treat in the civilized and liberal way I and the commenters on my blog treated it: as a bizarre piece of information which was part of an interesting story; but certainly nothing to moralise or really think-twice about.

If I was writing my post again, I would treat it differently. I certainly would not make it so easy for right-wing bloggers to piggy-back off the my post to launch misconceived and illiberal attacks.

That said, given that the moment one started pulling together information on "David Rose" that email address and the references to porn by him elsewhere would have easily led others to find that site, I now think it may even have been a mistake to write my last blogpost in the first place.

I have not enjoyed what that link has since been used for, and I apologise to anyone hurt or offended by my inclusion of it. I apologise to one person in particular. The battle against bigotry and homophobia is hard enough without careless slips like that.

One day it would be good to have a society where fiction is not used as if it was fact in moral and political debates.

But I made a mistake, and I am sorry.

COMMENTS MODERATION

ANY COMMENTS ON THIS POST AS TO THE IDENTITY OF "DAVID ROSE" WILL NOT BE PUBLISHED.

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

Who is David Rose?

2011-07-09T17:03:00.042+01:00

Addendum:

In September 2011, the columnist Johann Hari admitted to being "David Rose", an internet alias he had used in an systemic exercise over many years to dishonestly promote his own reputation and to maliciously smear those with whom he disagreed. I write about this admission, and the role of the post below, here and here.

I have now been asked by some people with the name "David Rose" to make it clear to anyone coming across this blogpost (by Google or otherwise) that the post below does not relate to anyone actually named David Rose. In particular, I am happy to point out that "David Rose" is not the David Rose who is Assistant News Editor of The Times, or the David Rose, formerly of the Guardian, Observer and BBC, and who currently writes for the Mail on Sunday and Vanity Fair, or the David Rose currently studying at Cambridge University. Nor is it any of the many other David Roses identified below.

However, I have kept the references to these David Roses below, as they are part of the fascinating story which unfolds in the post and then in the comments; for this post and the comments comprise the extraordinary story of the unmasking of "David Rose".

My friend Nick Cohen wrote an intriguing diary at this week's Spectator. It is now online and worth reading in full.

It features a curious figure called 'David r from Meth Productions’ - who is introduced as follows:

I learned that Johann Hari was a journalist who was better at attention-seeking than truth-telling when a small American journal asked me to reply to his review of What’s Left, a book of mine on the dark forces in liberal-left politics. I looked at it and was astonished. It was not that he disliked my ideas — he was entitled to disagree — but that he had attacked a book I had not written. He pretended that I believed the West had been right to support Saddam Hussein while he was gassing the Kurds when I had said the opposite. He made up stories about my parents, good people he had never met, to show me in a bad light. Every second paragraph contained a howler. Well, I thought, get a book wrong and the text will confound you. I typed out the passages that proved that he was at best an incompetent reviewer and filed my reply. ‘Get out of that,’ I muttered as I hit the send button.

I thought no more about it until I looked at my entry on Wikipedia. As well as learning that I was a probable alcoholic, a hypocrite and a supporter of Sarah Palin, I noticed that all reviews of my work were missing except Hari’s effort. Far from saying that he had made wild allegations and I had responded by quoting from the book, a writer working under the pseudonym ‘David r from Meth Productions’ suggested that I had made wild allegations while Hari ‘had offered quotes from Cohen which he argued backed up his claims’.

Cohen adds that Cristina Odone was also subjected to this "David r":

She was a ‘homophobe’ and an ‘anti-Semite’, the site alleged, and such a disastrous journalist that the Catholic Herald had fired her. Her husband, Edward Lucas, went online to defend her reputation, but ‘David r from Meth Productions’ tried to stop him. Mr ‘r’ gave the same treatment to Francis Wheen, Andrew Roberts and Niall Ferguson after they had spats with Hari. It didn’t stop there. Lucas noticed that anonymous editors had inserted Hari’s views on a wide range of people and issues into the relevant Wikipedia pages, while Hari himself had a glowing Wikipedia profile — until the scandal broke, that is — much of it written by ‘David r’.

Cohen then concludes:

Because Wikipedia lets contributors write anonymously, it cannot tell its readers if ‘David r’ is Johann Hari, or a fan of Hari’s with detailed knowledge of his life, or someone with an interest in promoting his career. But just as the effect of Hari’s phoney interviews was to make it seem that he elicited quotes no other journalist could match, so the effect of Wikipedia is to make him seem one of the essential writers of our times. In truth he disgraced himself because he was an ambitious man who might have been a good journalist, but yearned to be a great one, and so tried to summon a talent he could never possess by bragging and scheming.

So who could this "David r" be?

Well here Sourcewatch [edit, had wrongly typed Wikipedia, sorry] helps us, for there is a "Talk Page" about some of the edits, which makes very interesting reading.

David tells us:

I proposed the edits, and no, I am not Johann Hari. I know him a bit, we were at university together, and I have done some work on his website. You can e-mail me at methuselahproductions@hotmail.com

He assures us about a libel threat:

I mentioned litigation only to shock you into realsing that your words have consequences; I also made it clear that Johann is a free speech nut and would never sue anyone.

It is all very unfair:

Johann writes almost entirely on left-wing issues from a left-wing perspective. Check out his website. Your impugning of his integrity will be used, I suspect, mainly by Zionist groups and anti-environmentalists in their mailing lists to undermine his writing about Palestine and climate change. (The Private Eye attack began after Johann attacked their homophobia). It's frustrating to see a decent guy who works hard for left-wing causes being pulled down by his own side (using right-wing allegations!) because they disagreed with him on one issue.

The comparison with Jayson Blair is dismissed:

About Jayson Blair. You cannot compare a reporter who fabricated stories, pretended to be places he wasn't etc, to a reporter who repeated a very widely circulated and reported story (the Iraq Pastor thing) which then turned out to be wrong and was corrected when he knew about it. They are not the same thing, and it's bizarre to claim they are.

Anywaya, you have shown you are honourable people and keep up the good work on (bad) journalists

Then on 25 January 2005, one of the Wikipedia editors notices something odd about the IP address of David:

DavidR, you have a curious IP address:

IP: 217.118.112.0/20
descr: Interoute Telecommunications (UK) Ltd
origin: AS8928
notify: hostmaster@interoute.net
mnt-by: INTEROUTE-MNTNR
changed: george@interoute.net 20040211
source: RIPE
person: Franc Tundidor
address: Independent News & Media
address: Independent House
address: 191 Marsh Wall
address: London
address: E14 9RS
address: UK

Now, you wouldnt happen to be working at the Independent, would you? So you too should be "keep up the good work on (bad) journalists" (as you stated above).

But David responds:

Yes, I do shifts as a sub at the Indie sometimes (Johann got me this shiftwork, I told you up front he is a friend of mine) - you can all me on the switchboard, call the subs' desk on 02070052000 and ask for David Rose. And, yes, I do watch out for bad journos.

That would explain the IP address.

We also have his surname. His name is David Rose.

There is then a lengthy passage which includes the following:

You disagree with Johann on Iraq. I disagree with him too, as anybody who knows us or works in this office will tell you.

The difference is you accuse him of being a liar with no evidence.

So this David Rose is a Cambridge friend of Hari, and at that time he works at the Independent as a sub on shifts. He is also well-known in the office for his disagreements with Hari.

David Rose is also something to do with Methuselah Productions. It is used as his hotmail address and (in abbreviated form) his Wikipedia address. Unfortunately whatever productions Methuselah Productions produced were not successful, as it has no easily identifiable trace on internet.

Intrigued, I asked another friend of mine - Tim Ireland of Bloggerheads what he could find. He is very good on internet searches and this sort of thing.

[EDIT 20/9/2011 text and edits removed - explanation and background here.]

The email address also pops up for this comment:

I have also worked at the Spectator, Reuters and CNN's website doing subbing. What does that reveal? It's extraordinary that confronted with actual facts, you guys scramble like hyenas for some scrap of personal information to use against me, even going to the point of retreiving sick porn from the web. Whatever makes you feel better...

So the author of this comment is at least that he is aware of some porn connection to the email address. It, of course, does not prove that he wrote it or was in any way aware of it in any detail.

More importantly for our purposes, David Rose tells us more of his subbing career. Not only has he done shifts for the Independent, he also has worked for Spectator, Reuters, and CNN.

Back at Wikipedia, David Rose now has his own user page.

One theme of the page is David's defence of Hari against his critics. For example:

I'll tell you something else that's generally frowned on in wikipedia: inserting lies into entries, blatantly trying to impose your POV on entries of people you hate, imposing your own political bias, insulting real people as sockpuppets...

The last entry of David on that user page is 12 March 2007. It is just after he announces he has emailed something to Hari.

So far, this has been a bit one-sided. It is all about David Rose and the connections he claims with Hari. Nothing so far even shows that Hari is even aware of his devoted champion. David Rose could be some Walter Mitty pretending to know a famous journalist.

But then there is this post by Johann Hari, hosted on his own website.

Referring to the confrontational comments threads which I have quoted above, Hari states:

A friend has just e-mailed me a link to the comments section of the 'Daily Ablution', a blog by right-wing writer Scott Burgess. It's quite amusing. Check it out - it's the first comments box on the page.

Burgess is very fond of writing to left-wing newspapers and demanding corrections in print. Daily journalism written to tight deadlines inevitably involves errors - I make them myself, like everyone else - and all sorts of gadflies can be helpful in pointing them out, even when they have a pretty ugly agendas like Burgess. That's why I'm grateful to him for pointing out an error I made in citing Louis Emmanuel, the hurricane expert, a few weeks ago, for example. As soon as I found out about it I posted a correction, and thanks to him I won't make that mistake again.

But what's so funny is that when Burgess' own factual errors - real whoppers, like citing scientists who say exactly the opposite of what he claims, part of his total illiteracy on the question of global warming - were exposed by Alex Higgins on this website, Burgess posted no corrections. Nothing. Recently David Rose has been writing in his comments box, asking how to contact Burgess' readers' editor to request a correction.

And Burgess has been... totally silent. It has been left to barely-literate posters in his comments box to respond, accusing people like David with real scientific knowledge (a starred first from a degree speicalising in environmental science at Cambridge, and extensive work in Antarctica observing the effects of global warming) of being "stupid" and "twerps."

David is quite right when he says, "If Scott doesn't respond to [Alex Higgins'] fair and accurate critique, then I'm afraid his ability to fact-check and critique others is simply shot to pieces."

Next time you read him trying to fact-check a liberal, remember that he has been proven to have no respect for facts - none - himself.

So David is not just a Cambridge friend and colleague of Hari who has worked at a number of great newspapers as a sub-editor on shifts, he also has a "starred first" from Cambridge and has worked extensively in Antarctica observing the effects of global warming.

It may well be that the "Wikipedia" David Rose is not the same as the "global warming commenter" David Rose. We only have circumstantial evidence. But it is clear that Hari knows at least the latter and that he knows Hari.

In view of the comments of Nick Cohen in the Spectator this week, it would be fascinating to know what this David Rose is up to now. As Hari may still be in touch with him, I have tweeted him to see if he can also put me in touch with his friend David Rose.

At the time of writing, Hari has not got back to me.

(Many thanks to Nick Cohen, Tim Ireland, Guy Walters, and Jeremy Duns in respect of this post. However, this post is entirely my responsibility.)

COMMENTS MODERATION

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The hacking of Milly Dowler's voicemails

2011-07-04T17:07:00.003+01:00

Nick Davies and Amelia Hill of the Guardian have just revealed that the News of the World hacked into the telephone of the then missing schoolgirl Milly Dowler.

Significantly, the newspaper is alleged to have deleted messages so to ensure the voice mailbox was not filled up.

This was then an on-going investigation into a disappearance. The deleted voicemails could have been evidence in respect of the crime, as well being information which could have assisted the police.

If these allegations are correct, then the current police investigation is now no longer just into breaches of the legislation relating to phone hacking.

This would now appear to be an inquiry into a perversion of the course of justice. The police and the courts do not take such offences lightly.

Not only has the “Hackgate” gone onto a more sickeningly bad level; the seeming criminality is now also far more serious.

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Another "journalist" associated with the Orwell Prize

2011-07-04T10:59:00.006+01:00

In the controversy surrounding whether Johann Hari should be stripped of the Orwell Prize, the pundits are overlooking another left-wing 'journalist' closely associated with the same award.

This author - who never went to journalism school or even to university - is routinely invoked out as an example of progessive writing.

But a close look at his work indicates he may have just made things up.

For an example, "Shooting an Elephant" details how the author killed an elephant whilst in Burma. The power of its ant-imperialist message is reliant on the detail of the incident. But there was probably no such killing. It was not documented, and nor is there any independent evidence that it occured.

Similarly, the anti-capital punishment piece "A Hanging" depends on its telling detail - the defendant even sidesteps a puddle on the way to the gallows - but it seems the author told someone it was just "a story". Needless to say, no documentary evidence or independent accounts exit.

Most devastatingly, a 'critique' of private education - "Such, such were the joys" - which unlike the above two pieces actually purports to containe verifiiable detail - is dismissed by many children who were there.

As Professor Wikipedia tells us:

"Robert Pearce, researching the papers of another former pupil, made a comprehensive study from the perspective of the school, investigating school records and other pupils' accounts. While some features were universal features of Prep school life, he concluded that [this] depiction bore little relation to reality and that [the author's] defamatory allegations were unsupportable."

This is simply damning.

The author in question has been closely involved with the Orwell Prize since its very inception.

This cannot continue.

His followers know exactly who he is, and so there is no need for me to name him here.

But one thing is certain.

George Orwell must be rolling in his grave.

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The Three Types of Bad Guy

2011-06-17T18:04:00.005+01:00

John Malkovich is coming to London to play a Bad Guy on the stage.

The play is called ‘The Infernal Comedy' and we are told that it is:

the autobiography of Austrian serial killer Jack Unterweger…[who] was imprisoned for murder but became a poet and writer while serving his sentence; critics loved him and intellectuals and politicians eventually got him a pardon, claiming he was an example of 'rehabilitation'.

Already there is concern that it will be too sympathetic a portrayal; that Unterweger will be 'glamorised'.

However, the notion that the Bad Guy should be shown to be a repulsive monster is just one of many literary approaches.

The Bad Guys in Dickens and the early gothic novels were usually caricatures, and this tradition carried on in cinema and in pantomime.

You were not supposed to like them, still less associate yourself with these horrible sorts.

They may well scare you, but they were firmly “The Other”.

Another literary tradition, which one can perhaps associate with Milton’s Lucifer, is to make the Bad Guy attractive: someone you would like.

Here, the Bad Guy as the Charming Figure also has a great tradition, including Conan Doyle’s quite wonderful threesome of Irene Adler, Charles Augustus Milverton, and Professor Moriarty (each of whom would be far preferable company than the earnest Holmes and Watson), and the recent film portrayals of Hannibal Lector by Brian Cox and Anthony Hopkins.

This type of perhaps glamorous characterization can be far more unsettling than the Dickensian grotesque: to actually like these characters may well make us uncomfortable about ourselves.

More difficult is for a writer to create a Bad Guy who makes us realise that we are all capable of bad actions; that the Bad Guy is not necessarily somebody else.

In his brilliant Contingency, irony, and solidarity, the late Richard Rorty contended that Nabakov and Orwell were able to put forward characters who could make the reader personally reflect on the nature of cruelty: that, in particular, the figure of O’Brien in Nineteen Eighty-four could make one empathise with what it would be like to be a torturer.

Torture and cruelty are commonplaces in this world. They probably always will be.

The question of how it can best be understood is perhaps not to ask why other people can be the Bad Guys, either as Dickensian Horrors or as Miltonian Charmers, but to ask how all humans can do deeply bad things.

The villain is not always behind you, or in front of you; it can instead be you.

And that is not a glamorous thought at all.

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The unanswered questions for Dyfed Powys Police

2011-06-14T15:16:00.003+01:00

Last Wednesday, Dyfed Powys Police arrested activist and blogger Jacqui Thompson.

I blogged about it at the New Statesman.

On Friday I sent the following questions to Dyfed Powys Police.

It is now Tuesday and I am still waiting for a response to any of the questions.

This tardiness rather contrasts with the matter of minutes it took Dyfed Powys Police to turn up and arrest Jacqui Thompson. The police seemed to know their powers of arrest then.

The unanswered questions:

1. In what possible way is filming a public council meeting a breach of the peace?

2. Can the police confirm that filming a public council meeting is not actualy an arrestable offence?

3. Why was she taken to a police station? And why was she then kept several hours at a police station?

4. Why was she threatened with court if she did not sign an "undertaking"?

5. What possible offence was the police threatening with charging her?

6. Do the police realise that this is a free expression issue?

7. Will the police now apologise to Ms Thompson?

8. Can you please name the officers that arrested Ms Thompson?

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New College of the Humanities - a guest post by Maria Wolters

2011-06-08T11:43:00.003+01:00

Am delighted to host this guest post by Maria Wolters.

In his Evening Standard interview on his latest creation, the New College of Humanities (NCH), A.C. Grayling extensively discusses his motivation for founding the NCH. One quote in particular caught my eye.

[Grayling] claims that he is not setting up the NCH outside the public system to compete with Oxbridge. That's "press hyperbole". But there is excess demand at the top end of the education "market", and he does not believe we should continue to lose bright pupils to foreign universities, which are more than willing to court their minds and money.

Grayling also defends the fee of £18K per year.

The NCH fee "seems like a lot of money from one point of view, but if you're really committed, you'd do anything to provide your kids with a good start". Provided you have the means. "Well, you make the means."

So, let's put Grayling's assertion to the test. I have two small children, aged 5 and 3. If they are to be able to afford that high quality NCH education. I'd better start saving soon. But if I want the best possible university education for my children, should I aim for NCH?

The NCH offers standard University of London International Programme degrees, with an additional load of four courses on Logic and Critical Thought, Applied Ethics, Scientific Literacy, and Professional Skills.

If I were still working as a university lecturer, I would hope to teach most of the content of these courses within subject-specific classes - for the simple reason that these courses cover many skills which are best acquired while working through actual problems, and reflecting on one's own practice. (I hear problem-based and reflective learning are quite fashionable these days ...) This approach is hard to pull off when you have a large class of widely varying skills levels, but perfectly feasible if you have small groups, highly motivated, intelligent students, and plenty of 1-1 tutorials.

If I were a parent, I would be concerned about extracurricular time being taken up with additional modules when my children could be exploring other subjects, learning foreign languages, or simply immersing themselves in the subject of their choice. (Or, God forbid, having fun.) I would also like my children to be prepared for a connected workplace with international teams that telecommute from different locations with different cultures. This would require a strong cultural studies, area studies, and languages provision, none of which NCH offers.

So, let's see. I want to see my children well-prepared for a life which will require them to be flexible, work well across disciplines and cultures, and change careers as and when necessary. Surely there must be better options out there?

Let's look at Jacobs University in Bremen, Germany, a collaboration between Rice University, USA, and the German state-run University of Bremen. I presume that Jacobs University is one of the institutions Grayling wishes to outclass in his bid for the best and the brightest. I'm not picking it because it's particularly good - however, it's fairly typical for the level of innovation and interdisciplinarity that the best private foreign institutions offer.

Leaving aside for a moment the fact that Jacobs University is a full university, with undergraduate and graduate programmes and extensive science course provision, a quick look at the courses on offer shows two degrees that cover aspects of the Humanities proper, International Politics and History and Integrated Cultural Studies. Both degrees are highly innovative. Between them, they cover history, world literature, arts, aspects of philosophy such as ethics, and relevant social sciences. (His Grace may or may not be pleased to hear that the University even offers a course on comparative religion as part of cultural studies.)

What's more, the first year of all undergraduate programmes is designed to be interdisciplinary. Courses are often co-taught by instructors from different fields. Following the US model (and to a certain extent the model of classical German Humanities education), students are expected to take courses outside of their own subject area.What better way to acquire science literacy than to study an introductory science course with students who will make this their major?

Last, but not least, Jacobs takes pride in its multilingual and multicultural student body and perceives this as an asset, actively recruiting around the globe. Grayling, on the other hand, worries about "losing" UK students to foreign universities.

But what is the cost of all this high quality education? 18K Euros per year. That's Euros, not pounds. (For an additional 220 Euros per year, you get free public transport in Bremen and environs.)

To repeat - this is not an advertisement for Jacobs University. It's just an illustration of what £18K will get you elsewhere - more Humanities, more innovation, more interdisciplinarity, and, I believe, a much better preparation for the workplace of the future than the New College of Humanities in its current state offers.

AC Grayling’s Folly

2011-06-06T17:42:00.011+01:00

Professor AC Grayling, a philosopher, has founded a College to teach the humanities to “gifted” undergraduates.

The college will be situated in Bloomsbury, just by the British Museum. It has already selected a “Professoriate” who will supposedly give over 100 lectures a year, notwithstanding almost all of them are academics at foreign universities.

In my view, almost everything about this College is an affront to the critical thinking and evidence-based approach that such an establishment should promote.

It is, in short, a sham.

First, it is not even a College in any meaningful sense.

Its students will be enrolled on University of London degrees which, it seems, they will have to apply for directly.

However, instead of the £1,000 to £2,000 a year they would expect to be charged for a University of London external degree, the “gifted” student will be expected to pay £18,000.

Who will these “gifted” students be taught by?

Reading the biographies of the “Professoriate” would suggest that few students will get much contact time with such academic celebrities.

In history, for example, the three named professors all teach mainly at American universities and have numerous other responsibilities.

In law, the two listed professors are not even authorities in any of the seven core LLB courses.

Although it would be wonderful to be taught jurisprudence (the philosophy of law) by Professor Dworkin and civil procedure by Professor Zuckerman, this will not help the student seeking tuition in contract or criminal law.

One suspects that the actual teachers of the courses are not yet even appointed.

And what does it mean to be “gifted”?

No doubt it will require a special kind of gift to want to pay £18,000 for a course which costs substantially less elsewhere in London by absentee professors who will be on television more than they will be in Bloomsbury.

However, the College’s PR advisors tell me “gifted” means:

"that, like every university, we are selective and will select students whose achievements and potential show that they can make the most of the high-quality, intensive educational experience at NCH".

An alternative view is that “gifted” simply means privileged.

This will accord with the view of Boris Johnson that this is an “Oxbridge” for those who cannot get into Oxford or Cambridge.

And it is not even clear if the College is a business or a charity.

Perhaps they do not know themselves.

This is not a College but a branding exercise: the use of big academic names to gloss straightforward London University degrees and charge the courses out at five times the cost using the same facilities.

Almost all the contentions made on the College’s website are misconceived, or do not seem to be substantiated.

All this is clear with the application of the critical thinking and an evidence-based approach which the humanities should actually promote and celebrate.

This College is not any academic breakthrough.

This College does nothing real to help the humanities in this country.

It is instead AC Grayling’s Folly.

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Britain's Got Talented Lawyers

2011-06-04T19:49:00.006+01:00

The recent anonymous allegations published about Britain's Got Talent seemed too well-written to be by a random industry executive and too packed with verifiable detail to just be a casual hoax.

The allegations were soon taken down at the behest of the programme's lawyers, and perhaps we will never know the true circumstances of what is being alleged.

Lawyers also reported the page to the police under the terms of the Malicious Communications Act, which surely means that there is now some detective somewhere wondering how the hell to apply the offence under that Act to this case.

He or she must be delighted.

So the lawyers did their job quickly and well; and, indeed, we do have some talented lawyers in this jurisdiction.

All the same, this did not stop the Daily Mail safely publishing a lawyered (or "abridged") version of the allegations. Again, we do have talented lawyers.

Soon we had carefully worded denials - sometimes so carefully worded that one was not certain what was actually being denied.

And, who undoubtedly wrote these denials?

Yes, more of these talented lawyers.

One cannot know the truth or otherwise of those allegations.

One may not even care, for as Marina Hyde brilliantly explains today in the Guardian, there is enough about the programme and its underlying commercial model to depress and annoy any sensible person anyway.

But what is clear is that these allegations will not be addressed head on, and will not be rebutted or admitted, because of talented lawyers and those who instruct them.

No lawyer is to blame: the practice of law is merely what instructions of your client the system of law allows you to get away with.

What is at fault is the system of law which easily allows those who are being criticised - fairly or not - to use the law to close down what is unwanted rather than address it.

Britain may well have talented lawyers, but we also have a talent for bad law.

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CTB v Twitter and Persons Unknown Begins

2011-05-20T18:46:00.006+01:00

It has been reported that "CTB" has lodged a claim against Twitter and "persons unknown".

What could this possibly mean?

It is important at this stage to be aware of what one cannot know for certain:

1. that the "CTB" is actually the same person as "CTB" in the recent privacy case (though it appears the same law firm is instructed);

2. what the claim is for in terms of law - is it a privacy claim or is it under some other form of law; and

3. what the remedy requested is - is it a damages claim or is it for disclosure by Twitter of third party information (for example the information of those who have used Twitter accounts to break - rather than repeat - allegations), or for something else.

As yet, we simply do not know.

However, it is unlikely to be a mass law suit against all people who have retweeted the allegations.

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WikiLeaks £12m Legal Gag: a legal analysis

2011-05-14T11:55:00.020+01:00

Last Wednesday, the New Statesman published the legal gag which WikiLeaks sought to impose on its employees and associates.

This was then followed by an article in the Guardian by James Ball providing further background to this curious document.

The former WikiLeaks spokesman Daniel Domscheit-Berg was also reported as saying:

“WikiLeaks has become what it despises: a repressive organisation, using restrictive contracts to gag its staffers, cultivating intransparency and unaccountability”

For many commentators the document simply spoke for itself.

It was illiberal in its purpose and misconceived in its approach.

It was patently a commercial legal instrument, and the £12 million figure was preposterous and worrying.

Given the express aims of the WikiLeaks organisation, it appeared to be hypocritical and discrediting.

However, this view was not shared by all.

WikiLeaks itself tweeted:

"WikiLeaks works on information that can change the destiny of states and other powerful groups. We are proud of using every possible instrument to be to defend our sources, staff, volunteers, collaborators from these groups, whose actions against us include legal coersion, bribery and violence. Although we have not sold raw information to other entities, for legal documents to be enforceable, they must be put into monetary form."

(By the way, that final assertion is simply - factually - incorrect as a matter of basic law.)

Others have sought to explain the document away: to normalise it and to contend that it is somehow unexceptional.

It may be well that for WikiLeaks partisans (like "the Birthers" in the United States), nothing - not even a disclosed document- will shift their adherence to their cause.

If so, that would present rather a paradox, as one claim for the WikiLeaks enterprise is that publishing original documents can undermine artificial and self-serving narratives.

So for WikiLeaks and its partisans, and for anyone else who is interested, what follows is a technical legal analysis of this extraordinary document. I also, at the end, provide a suggested draft for the NDA they should be using instead.

The starting point, as with any contract or transactional document, is the choice of law.

Here, there can be no doubt: clause 9 provides that it is under English law.

This has two important consequences.

First, it means that it will be presumed that the English laws of confidentiality and copyright will apply as between the parties.

Second, it means that the English law in respect of penalty clauses will also apply.

Confidentiality agreements under English law

Under English law, one does not need a contract to have enforceable obligations of confidentiality.

All one needs is for there to be information which is confidential in its nature imparted under the terms of confidentiality. If the recipient of the confidential information misuses or wrongfully discloses the information, then the provider of the information can apply to the court for an injunction or to recover the wrongful profits made by the recipient.

No written or oral agreement is required. This is partly because the English law of confidence is based on “equity” rather than common law, and equity and common law were administered historically by separate courts.

Confidentiality agreements (or “non-disclosure agreements” or “NDAs”) then supplement the law of confidentiality in three ways.

They can identify and define the information which is to be regarded as “confidential”; they affirm that the information has been imparted under the term of confidentiality; and they provide for what the parties agree would be the appropriate remedy for any breach.

A well-crafted confidentiality agreement ensures each of these three points is clear and legally enforceable.

Such agreements can also serve important non-legal and ceremonial purposes.

Once a transaction or joint venture is envisaged, parties often sign a NDA or memorandum of understanding to show a mutual commitment short of a formal business arrangement.

And being presented with a NDA can ensure that the recipients are made to realise the seriousness of their obligations in respect of information with which they about to be provided.

There is nothing wrong with an organisation like WikiLeaks having a NDA; the problem is in the content.

Definition of "information"

Turning now to the WikiLeaks document itself, you will see that the information to be covered is defined in the recital paragraph B.

This seems to be an extremely wide definition, which goes far beyond the leaked documents which the organisation possesses.

The definition is not that easy to follow. It is unclear to what the "it" at the start of the second sentence is referring (and this matters because the second sentence defines "information").

There are also three non-exhaustive lists of what the information "includes". It also looks as if there is a general test of "newsworthiness" as to whether information is caught by the definition, though this test is left undefined, and there is no indication as to whether this test of newsworthiness is objective (in the opinion of a court) or just in the opinion of WikiLeaks.

However, regardless of this woeful drafting, it could be arguable that the definition would cover all information leaked to and held by WikiLeaks that was worth leaking to a third party.

For an organisation which promotes transparency and accountability, one concerning element to the definition of "information" is that it purports to include the workings of WikiLeaks and details of its management and internal affairs.

That said, it would actually be difficult to enforce certain other provisions of this document in certain foreseeable cases, just because this definition of "information" is insufficiently precise.

If WikiLeaks was serious about enforcing this document, it needed a more precise definition of the information it should cover.

Ownership

I have noted elsewhere the extraordinary notion that WikiLeaks contends that it "owns" the information which has been leaked to it.

You will see clause 1 purports to claim all the "information" as defined "is...and remains the property of WikiLeaks".

In legal terms, this assertion of proprietary rights would mean that WikiLeaks has certain rights and remedies in respect of that leaked information which it otherwise not have but for this ownership.

WikiLeaks may, of course, have its own generated intellectual property. It may be also able to perhaps claim that it owns the databases in which the leaked information is stored.

But there is no legal basis whatsoever for WikiLeaks to have ownership of the information itself, especially when it has been provided in breach of various civil and criminal legal regimes.

For example, WikiLeaks cannot own the copyright in the leaked information (to the extent that the information is in a form capable of copyright protection). The creator has not assigned any ownership to WikiLeaks, and no licence has been given.

WikiLeaks cannot also take over the right of ownership of confidential information possessed by the original holders of the information before it was leaked.

And these points are crucial: without "ownership" then there is nothing at all which WikiLeaks can meaningfully sell. And, if this is the case, then various other provisions of this document become nonsensical.

Put simply, the leaked information cannot be "owned" but WikiLeaks would need to have something to own before it can commercially exploit as envisaged by recital paragraphs C and D of the document.

And so we come to commercial exploitation.

Commercial rights

The recital paragraphs C and D set out the basis of WikiLeaks ambitious claims to be able to commercially exploit the information (which they do not own).

The commercial value in the information is firmly connected to the "exclusivity" of these commercial agreements.

Recital paragraphs C and D (and indeed all the recital paragraphs A to E) contain absolutely nothing which, to quote the WikiLeaks tweet above, would protect "sources, staff, volunteers, collaborators [from...legal coersion, bribery and violence".

The only sensible reason for recital paragraphs C and D is to protect the commercial position of WikiLeaks in respect of its (imagined) exploitation rights in the information it contains.

And it gets worse.

For the most astonishing part of this document to me (more than the liquidated damages or penalty clause, on which more below) is in recital paragraph E.

Normally, a person in breach of a contract is liable for any direct loss caused. However, the law draws a line as to how much indirect loss one can also be liable for.

However, recital paragraph E provides for a person in breach of this document to be personally liable for the widest imaginable array of (entirely commercial) indirect losses so as to ensure that WikiLeaks can simply protect its commercial position.

It is paragraph E that makes the conclusion inescapable that this is wholly or primarily a commercial document. There can be no other explanation for the inclusion of this paragraph.

And now we come to the penalty clause.

Penalty clause

Unlike in some other jurisdictions, penalty clauses are unenforceable in English law. A party cannot include in a contract a provision which is there only to penalise a party in breach; any losses have to be genuine and flow from the breach.

Sometimes a party may seek to avoid the effect of this rule of English law by dressing up a penalty clause as a "liquidated damages" clause where the parties agree a "pre-estimate" of any loss suffered by a breach. However, English contract law tends to deal with substance not form, and so a clause will be struck down as a penalty even if the parties have called it liquidated damages.

In this document, clause 5 provides a figure of £12,000,000 for loss in respect of a "significant" (presumably material) breach of the agreement. There is no basis provided for this figure.

It is not even obvious which heads of loss are covered. Damages for infringement of (non-existent) copyright? Profits in respect of breach of (non-enforceable) confidentiality? The indirect losses under recital paragraph E?

The figure appears to have been plucked out of the air.

It is so high that it can only be a penalty. As such it could not be enforced.

What this means is that, far from this being a document which would "defend our sources, staff, volunteers, collaborators [from]...legal coersion, bribery and violence" it is instead of almost no legal effect as the central protection (other than recital paragraph E) would be without effect.

Any competent commercial lawyer would tell someone producing this document that a court would be unlikely to uphold clause 5 as it was a penalty.

So, in seeking to make this an onerous document, WikiLeaks have instead produced an effectively pointless dud.

That is why, as I said in the New Statesman, this clause is ludicrous and undoubtedly unenforceable.

The penalty in clause 5 actually offers WikiLeaks no real protection at all.

What WikiLeaks should have done

You may have noticed that I have referred above to the lettered paragraphs as "recital paragraphs" and to the numbered paragraphs as "clauses". Unless you have the misfortune to be a commercial lawyer, this distinction may not mean anything.

However, for a contract under English law, the distinction can be very important.

In the event a contract is enforced, a recital basically tells a court what the parties intended by the agreement they had entered. A recital is thereby an aid to the court on how obligations are to be construed.

Whilst in badly drafted contracts, such as this one, recitals contain substantive obligations and liabilities, such provisions belong in the clauses which then follow.

In this document, you will see at the top of page 2 that "the parties hereby agree as follows" - the recitals lead up to this statement of agreement and the substantive clauses - the terms and conditions - then follow.

If this document was really to be used for the protection of "sources, staff, volunteers, collaborators" rather than for commercial exploitation then the recitals should be very different.

Instead of emphasising the commercial exploitation rights of WikiLeaks, it should be emphasising the need to protect sources and staff, the need to ensure information is disclosed properly without creating due risk to life and limb.

And instead of emphasising monetary amounts, the document should mention the public interest in uncontrolled disclosure of sensitive information.

A court would then be able to ensure that whatever remedy was ordered met the presumed intention of the parties in keeping the information safe for good reason.

Indeed, the WikiLeaks tweet quoted above, and the various justifications of WikiLeaks partisans on Twitter and elsewhere, would have been better recitals to this document than the ones actually used, unless - of course - the intention of WikiLeaks was in fact commercial rather than protective of its sources.

The fact that the document talks of commercial interests and liquidated damages, rather than the public interest, indicates it is a commercial document.

This blog does not provide legal advice.

But as I draft NDAs under English law as part of my day job, including for non-governmental and not-for-profit organisations, I would suggest that if WikiLeaks had been genuinely serious about protecting the integrity of its information and the safety of its sources, rather than commercialising the information, then the following would have been more appropriate.

Non Disclosure Agreement

Between

[WikilLeaks entity]

and

[Name X]

Whereas

A. [WikiLeaks entity] possesses and has access to information (including documents and other materials which has been passed to it in the public interest) which is of a sensitive nature the unauthorised disclosure or misuse of which could adversely affect the interests of third parties ("information").

B. [Name X] will have access to this information.

C. The carefully managed disclosure of the information into the public domain is in the public interest.

The parties hereby agree:

1. [Name X] shall not disclose to any third party or use for his or her own benefit or for the benefit of any third party, any of the information without the prior written consent of [WikiLeaks entity]. [Drafting note: same as clause 1 of the document.]

2. [Name X] shall not commercially exploit or otherwise misuse the information. In the event [Name X] does commercially exploit or otherwise misuse the information then [Name X] shall (a) account to [WikiLeaks entity] for any profit which is thereby made, and (b) indemnify [WikiLeaks entity] for any damages and legal costs thereby caused.

3. The liability of [Name X] under clause 2 shall be limited to £12,000,000.

4. [WikiLeaks entity] is proud of using every possible instrument to be to defend its sources, staff, volunteers and collaborators, and [WikiLeaks entity] thereby indemnifies [Name X] against any loss or damage caused by [Name X] assisting [WikiLeaks entity] in respect of the information.

5. The liability of [WikiLeaks entity] under clause 4 shall be unlimited.

6. Nothing in this agreement shall provide [Name X] with any ownership, licence or other rights in the information.

7. Damages may not be an adequate remedy in respect of a breach by [Name X] of this Agreement and that [WikiLeaks entity] shall be entitled to injunction or other interim order so as to ensure that the information is held and disclosed in accordance with the public interest and the rights of any third parties who may be affected.

8. Unless terminated by the agreement of both parties, this agreement shall last for a period of three years.

9. This agreement is subject to English law and to the non-exclusive jurisdiction of the English courts.

Executed as a deed by

[WikiLeaks entity]
Witness

[Name X]
Witness

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The First Five "Without Prejudice" Podcasts

2011-05-08T16:16:00.012+01:00

"Without prejudice" is a common but precise legal phrase. It is not often understood by non-lawyers nor, surprisingly, even by many lawyers.

What "without prejudice" covers is the correspondence and discussions between parties to a civil dispute (not criminal litigation) which invariably takes place alongside the formal (indeed, formulaic) and "open" exchanges.

The formal and "open" communications can, if the case goes to court, be put before the judge. However, "without prejudice" communications are without prejudice to the formal communications and usually are not put before a judge.

Accordingly, it is under the umbrella of "without prejudice" that the real meat and thrills of civil litigation take place: the deal-making and the positioning for the best possible settlement. Almost all civil disputes end in settlement, and so an understanding of the dynamics of "without prejudice" exchanges are crucial to understanding the real nature of civil litigation.

In contrast, "open" statements of the parties' positions, and the case reports in the event there is no settlement, at best tell you half the story of what is really going on between the parties.

Although academic lawyers - oddly - seem to think law is about the decided cases they teach about in class and write about in textbooks, in practice formal case-law plays a very small role: referring to it may provide some advantage in strengthening a party's position - but it is far less important than say procedural rules and legal costs as an influencing factor.

And so when Charon QC, the doyen of British legal blogging, Carl Gardner and I were kicking about ideas for a name of a new regular legal podcast, the title "Without Prejudice" was, for me, immediately appealing.

The special legal meaning of "Without Prejudice" - as well as its obvious lay meaning - signifies that this podcast is going to try and "get behind the scenes" of legal stories in the news.

Although between the three of us we should (and sometimes do) know the substantive law (what the cases or statutes actually say) is in respect of any relevant legal news story, what interests us most is to seek to explain - to use the name of another legal programme - the law in action.

We hope we are well placed to do this. Charon QC has an encyclopedic knowledge and sharp understanding of the mechanics of the legal world; Carl Gardner is an accomplished government lawyer with rich experience of advising both decision-makers and those implementing policy; and I am a jobbing media and commercial lawyer-journalist, with no academic pretensions, but with an intense curiosity as to how some legal cases end up the way they do and a skepticism about what other people tell me. We also attempt to have a guest on each podcast, generally a non-lawyer, to participate and ensure there is a fresh voice.

We have now done five of these podcasts, and early problems about sound and manner have been addressed. The latest podcast is, we think, the best yet, and covers the assassination of Bin Laden and the unlawful death of Ian Tomlinson.

The general link to the podcasts is here, and the there is an iTunes feed here and a RSS feed here.

And the five podcasts so far...please download, listen and, we hope, enjoy:

Without Prejudice I - with guest Joanne Cash: the Assange extradition, the British bill of Rights, legal TV drama, etc.

Without Prejudice II - with guest Catrin Griffiths, editor of The Lawyer: sexism in law and practice, contempt of court, libel, etc.

Without Prejudice III - no guest: superinjunctions and other myths, banning crucifixes, expert immunity, etc.

Without Prejudice IV - with guest Dr Evan Harris: TwitterJokeTrial, the Crown, free speech and the criminal law, referendums, etc.

Without Prejudice V - with guest Alex Novarese, editor of Legal Week: Bin Laden assassination, Tomlinson, bribes, etc.

(Key to the voices: Charon QC, Aslan meets Alan Clark; Carl Gardner, think Professor Brian Cox in a lawyer's wig; me, Barry from Auf Wiedersehen Pet.)

All feedback - apart from on my Brummie accent - appreciated below. We especially want to know how we can do to make the podcasts better.

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Today the Alternative Vote Campaign is in Mass Denial

2011-05-07T07:34:00.003+01:00

Yesterday the Alternative Vote proposal was decisively rejected, by a two to one majority.

And today the supporters of the proposal are in mass denial.

Excuses are being deployed; blame is being apportioned; bad faith and knavish tricks are being alleged.

But the one reason which cannot be admitted is the rather obvious one: that people looked at the proposal and, er, did not actually want it...

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The death of Bin Laden and the justification for torture

2011-05-02T23:33:00.010+01:00

As Richard Rorty and Judith Shklar, amongst many others, articulated: cruelty is the worst thing we can do.

As such, even a good liberal - who will otherwise tend to avoid moral certainties - can contend that torture is absolutely wrong.

By being absolutely wrong, this means that in all places and at all times there is no justification for torture.

There are no exceptional circumstances - no beneficial outcomes - which can justify its use.

This goes both for imaginary situations (the "ticking bomb" scenario beloved by first year philosophy students) and practical predicaments: torture is always wrong, whatever the "greater" suffering which could supposedly be avoided by its use.

However, it would appear that it is possible that the killing of Bin Laden was made possible by the use of information extracted by torture.

If this was the case, would that be an exception to the otherwise absolute rule?

Or are liberals bound to say that such torture should not have been used, even if it meant that Bin Laden would have stayed at large (as far as he could) and free to engineer another 9/11 or 7/7?

Is this a difficult real life counter-example?

Or can it be safely disregarded as an attack on the absolute principle that torture is wrong?

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In defence of Pippa Middleton's Wikipedia page

2011-05-01T20:58:00.008+01:00

There is a certain type of person; you will know the sort.

They are the sort of person who is a Wikipedia editor.

This is not to say that all Wikipedia editors are the same; but there is a certain type of person who edits Wikipedia and takes special delight in deleting pages because they deem the person to not be sufficiently "notable".

What this often means is that the earnest dullard does not think that the subject should be notable.

The latest person to face such deletion is Pippa Middleton, currently one of the most discussed people in the world, or at least that portion of it which watched the royal wedding.

(You can read the dullards on this proposed deletion here.)

It may well be that such a maid of honour, sister, and a socialite-party organiser should not have a Wikipedia page; but Wikipedia was certainly the first place I looked when I wanted to know more about her.

Surely this is the point of Wikipedia: someone out there taking time to write a page knowing that someone like me will want to read it.

In any case, her sudden fame over the last couple of days is a notable cultural event in itself, and that is worthy of record

So, if the dullards want to take a page down, I can gallantly offer this one instead.

And the dullards should just be glad no one has also done a separate Wikipedia entry for the one attribute of Pippa Middleton which has been the real reason for most of the attention.

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Were our ancestors aquatic apes?

2011-05-01T18:48:00.003+01:00

This is not a question I would have ever thought of until I was followed today on Twitter by the intriguingly named @AquaticTheory.

When I clicked to see their tweets, I saw an array of superficially plausible contentions to support the proposition that we are, indeed, descended from apes that wallowed in water; it would explain our mainly hairless bodies, and so on.

I also saw that others dismissed the views completely.

I realised this was a moment where I could incur the infamous wrath of skeptics and Neo-Darwinist.

I knew that, if I said anything which seemed not to accord with the official version of human evolution, I could just be dismissed as a crank and a quack.

Or would those who promote an evidence-based approach and critical thinking welcome a different point of view, and perhaps constructively show me the errors in this interesting theory?

There is one way to find out, and so I ask the readers of this blog: are we the successors to aquatic apes?

And does it matter?

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An Atheist on Easter Sunday

2011-04-24T10:32:00.019+01:00

This is just a personal essay, written one Easter Sunday.

For me, atheism means not a disbelief in any god in particular.

Atheism instead means a disbelief in all gods, just as many disbelieve in fairies or goblins.

This is not to say that I would still disbelieve in gods in the event of good evidence to the contrary; but that is not really different from saying I would also believe in fairies and goblins, should there be good evidence for such magical folk.

In this way, my atheism differs from what I understand to be “agnosticism”.

It is not that I do not know whether gods exist or not.

For me, it is not an open question.

I positively disbelieve in gods, and I have never encountered any good evidence that they exist.

I believe that every god I could ever hear about in human history, and there have probably been thousands, to not exist; that each and every god is nothing more than a human construct; and that just because someone believes in a god does not mean that god exists.

In one curious way, my atheism is not dissimilar to someone else’s monotheism.

I disbelieve in all the gods I could have ever encounter; the monotheist believes the same, but with one exception.

One could be glib and say that plus-or-minus-one is nothing more than a rounding error.

However, there is the more important point that the typical Christian or Muslim invariably disbelieves in gods as readily as a typical atheist, and often does so with less thoughtfulness.

So if I am an atheist, what sort of atheist am I?

I do not think of myself as a militant atheist, but I suppose few actually do. It is the sort of phrase which one applies to other people, and not yourself. I certainly would not want to impose my atheism on someone else, and nor would I go out of my way to argue or debate with a non-atheist. I have known people derive great comfort from their religious views, and I do not wish to be the sort of person who wants to take such comfort away.

However, I derive great comfort from my atheism.

This does not stop various monotheists, usually Christians of one kind or another, wanting to convert me. There are even people who pray for me, which is both nice and rather pointless.

I am at ease with a godless universe and with a detailed understanding of natural and human history which has no need whatsoever for divine planning or intervention. The earnest people who wish to take this away from me may mean well, but they are offering only constraints where my curiosity and sensibilities otherwise would range freely.

To start believing that any part of the universe or any course of human conduct can be explained only by divine agency would constitute a narrowing of my horizon; it would seem artificial and contrived, and I suspect I could not keep it up, or indeed keep a straight face.

My atheism dates back more-or-less to university days, twenty years ago. I do confess to a brief flirtation with Christianity when I was about nineteen, but it lasted only a week or two.

There are two bases to my atheism. The first addresses the claims of “natural religion”; the second is my response to the contentions of “revealed religion”.

In terms of natural religion, I can never get the hang of thinking about the universe with gods in it. Nothing seems to require a godly explanation. For example, evolution by means of natural selection is capable of explaining natural history. Though it is a complex theory, and one which can seem counter-intuitive, development by random mutations and the survival of the fittest is at least capable of being true, given a sufficiently long time-scale.

Arguments from creation and from design, on the other hand, seem to just trigger more questions. It seems to me that there was no need to posit a creator or a designer if there was any merit in evolutionary biology.

Similarly, and as far as I can tell, the existence of the universe, including the solar system and this planet, also does not need reference to any gods.

Such godlessness, of course, does not make the universe and life on earth any less wonderful and beautiful.

Indeed, freed from the requirement that everything has to be explained by reference to what some god allegedly did, one can have the sheer thrill of intellectually trying to work out answers where there are none prescribed.

A universe explained by a god seems rather drab in comparison.

However, my secular view of the universe would count for nothing if “revealed religion” was true.

My understanding is that revealed religion means that there has been some intervention in earthly affairs which demonstrates as a fact the existence of a particular god and endorses the truth of a particular religious form.

As someone who studied history at university, and whose day jobs (as lawyer and journalist) now involve the intense assessment of documentary and other evidence, such a prospect is exciting.

The strident assertions of Dawkins and Sagan would have no efficacy at all if it could be shown that there was good evidence of divine agency; that there had been some evidence which could only be explained by there being a god at work.

Christianity, for example, makes a number of historical claims for their god revealing itself in human affairs. Many of the Christian claims are familiar in modern culture: the virgin birth and nativity of Jesus, the miracle-working and exorcisms of the ministry of Jesus, and the resurrection of Jesus after his execution.

And this is where I have my greatest problem with Christianity.

I cannot see why the bundle of stories and historical texts which provide the basis of Christian belief are inherently more plausible than any other cycle of ancient legends and scripts. Many Christians seem to believe that their religion has an inherent priority over other religions; that one has to accept the historical basis of Christian claims, whilst they deny the historical validity of the claims of other religions.

However, I have never understood why Christianity, which is essentially a Mediterranean-based religion known only to a minority of the world for most of its history, and indeed a more recent religion than some other world religions, has any inherent priority over other religions.

There is no reason why the badly-documented historical claims of Christianity are likely to be any more true than the claims of any other religion.

And, in turn, there is no reason why any other supposedly “revealed” religion is any more true than Christianity.

As far as I am aware, there is no event in either natural or human history which can be explained only by the design or intervention of a god, either in the Christian tradition or otherwise.

Take, for example, the Easter ‘resurrection’ stories in the New Testament. We are told that after his public execution, that there was a public resurrection of Jesus of Nazareth. This would have been an extraordinary event. However, the evidential base is not at all compelling.

The earliest version of Mark stops abruptly with an empty tomb and its discovery by people being instructed to say nothing about it. Acts has Saul/Paul being converted on the road to Damascus after encountering Jesus by means of a ray of light and a voice from heaven.

The later Gospel accounts, written down decades after the supposed event, add more detail, most of it inconsistent between the different Gospels.

Fairly straightforward points, such as who visited the tomb, what was found there, who was told next (if anyone), and who Jesus appeared to and with what effect, are all hopelessly confused. And, for an alleged physical resurrection, the ascension of the physically-resurrected Jesus figure upwards into heaven seems at best implausible.

Of course, the resurrection and ascension are plausible if one has faith. I understand faith to mean a certainty in something being true when there is no evidence otherwise. (Some people even seem to have faith that something is true even if the evidence is actually to the contrary.)

It may well be that some people can look at the evidence, such as it is, and conclude that the resurrection was a historical fact. They are free to do so, and the “who moved the stone” tradition is fondly invoked by many Christians; but there may be a problem in them adopting this approach.

As Paul himself recognised in his first letter to the Corinthians, Christianity ultimately must be a religion of faith. This is even the case in respect of the purported resurrection of Jesus, and Paul’s letter may indeed be the earliest evidence we have of the belief in a resurrected Jesus.

However, many Christians seem to want to know better than Paul, and so wish to say that a belief in the resurrection requires no faith at all.

In my own personal judgment – and I am fully aware of the “who moved the stone” tradition – there is nothing in the Easter story which actually requires a belief in the physical resurrection of Jesus as a historical event.

Indeed, as someone who admires the Gospels both as historical and literary documents, the post-resurrection narratives are disappointing and unconvincing.

It is clear that the Gospel narratives are a consequence of a belief in some form of resurrection of Jesus, rather than the evidential basis of the belief.

And there is no need to deny that the earliest Christians believed in a resurrection of some kind, physical or otherwise; there are religious enthusiasts in every age, most of whom are readily dismissed by Christians and atheists alike.

The fact of religious enthusiasm does not prove any historical fact, other than that enthusiasm exists.

To be a Christian thereby requires a leap of faith, just as it is required of any supporter of any “revealed” religion.

A wise Christian surely knows this, and will value any exposition of what can be shown without faith as an index as to what the effect their faith has on their beliefs.

As such there is actually no real tension between the Christian and the atheist: the former can use the latter as showing what difference their faith has to their view of the universe and human affairs.

However, I would like to invite any Christian (or Muslim or believer in any religious form) to try and see the universe as an atheist does: to have a sense of wonder in respect of both natural phenomena and ancient writings which is not easily satisfied by the conventional answers of others; and to enjoy the sheer rapture of working out things for oneself, with an evidence-based approach following one’s curiosity.

There may well be gods, fairies, and goblins; atheism and scepticism does not mean not admitting the ultimate possibility of any such things.

But you may well find that you do not need to believe in such things to understand and be awed by the universe; and you may also find that you do not need gods to appreciate what great (and awful) things humans can achieve by themselves.

So, if you have never tried it, do give atheism a chance.

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Twitter Joke Trial: the case stated by Doncaster Crown Court

2011-04-19T13:04:00.009+01:00

Below is a copy - with some links added - of the "case stated" by Doncaster Crown Court in respect of the appeal by Paul Chambers to the High Court. This sets out the facts and law which the Crown Court believes are relevant to the conviction and the appeal. At the end of the case stated are the questions which the Crown Court wants the High Court to answer.

The document is issued by the Crown Court, but is informed by legal representations by the defence and the CPS. (Please note that I am solicitor for Paul Chambers in this appeal.)

IN THE CROWN COURT AT DONCASTER

PAUL CHAMBERS
-v-
R E G I N A

APPEAL BY CASE STATED

INTRODUCTION

1. This is an appeal by Case Stated under section 28 of the Senior Courts Act and Rule 64.6 of the Criminal Procedure Rules (S.I. 60 of 2010). The Crown Court extended the time limit to the 10th March 2011 pursuant to Rule 64.7 of the Criminal Procedure Rules 2005 (S.I. 2005 No 384)

2. On 10th May 2010, the Appellant was convicted by District Judge Bennett sitting at Doncaster Magistrates' Court of a single offence of sending, by means of a public electronic communications network, a message of a menacing character, contrary to sub-sections 127(1)(a) and (3) of the Communications Act 2003 ("the 2003 Act"). The Appellant was sentenced to a fine of £385 and ordered to pay a victim surcharge of £15 and £600 costs.

3. An appeal was heard on 24th September and 11th November 2010, before HHJ Davies and two lay magistrates sitting at Doncaster Crown Court.

4. At the close of the Prosecution case on 24th September 2010, the Appellant's counsel made a submission of no case to answer. The Crown Court reserved judgment and the appeal was adjourned until 11th November 2010. HHJ Davies then handed down a written judgment on the submission, concluding that there was a case to answer.

5. The Appellant gave evidence and was cross-examined. The Crown Court heard closing submissions then retired. Later that day, the Crown Court upheld the conviction and the fine. The Appellant was also ordered to pay a victim surcharge of £15 and £2,600 costs (including the £600 costs in respect of the Magistrates' Court hearing).

THE OFFENCE

6. Section 127 of the Communications Act 2003 provides:

Improper use of public electronic communications network

(1) A person is guilty of an offence if he –

(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b) causes any such message or matter to be so sent.

(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he –

(a) sends by means of a public electronic communications network a message that he knows to be false;

(b) causes such a message to be sent; or

(c) persistently makes use of a public electronic communications network.

(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(4) Sub-sections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

7. There is no reported case in respect of prosecution for the offence of sending by means of a public electronic communications network a message or other material of a menacing character.

8. Guidance in relation to the scope of Section 127(1) was provided by the House of Lords in the case of DPP v Collins [2006] UKHL 40 on appeal from the Divisional Court [2005] EWHC 1308 (Admin). In Collins, the conviction was in respect of sending by means of a public electronic communications network a message which was “grossly offensive.”

9. However, Sedley L.J. at paragraph 10 of the judgment of the Divisional Court, provided the following obiter definition of "menacing":-

A menacing message, fairly plainly, is a message which conveys a threat – in other words, which seeks to create a fear in or through the recipient that something unpleasant is going to happen. Here the intended or likely effect on the recipient must ordinarily be a central factor in deciding whether the charge is made out.

10. His Lordship also stated, at paragraph 9, that "Here, as elsewhere, context is everything" and that the objective of the legislation was to protect people against unsolicited messages of the kind prohibited by Section 127(1). He said in paragraph 11 of his judgment:

If (as I will assume) these are the respective meanings of menacing, obscene and indecent messages in the communications legislation, the category of grossly offensive messages can be seen to lie somewhere near the centre of the spectrum. What is offensive has to be judged (very much as the justices, by considering the reaction of reasonable people, judged it) by the standards of an open and just multi-racial society. So too, therefore, what is grossly offensive, an ordinary English phrase with no special legal content which on first principles (see Brutus v Cozens [1973] AC 854) it is for the justices to apply to the facts as they find them. Whether a telephone message falls into this category has to depend not only on its content but on the circumstances in which the message has been sent and, at least as background, on Parliament's objective in making the sending of certain messages a crime.

11. In the House of Lords, Lord Bingham expanded that general proposition as to context by referring to changing standards of society in his conclusions at paragraph 9:

The parties agreed with the rulings of the Divisional Court that it is for the Justices to determine as a question of fact whether a message is grossly offensive, that in making this determination the Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances. I would agree also. Usages and sensitivities may change over time. Language otherwise insulting may be used in an unpejorative, even affectionate, way or may be adopted as a badge of honour ("Old Contemptibles"). There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates.

12. Lord Bingham also set out, at paragraph 11, the mens rea required for the offence of sending a grossly offensive message:

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

In defining mens rea, Lord Bingham, at paragraph 11, accepts the submission of Crown counsel that "the defendant must intend his words to be grossly offensive to those to whom they relate or be aware that they may be taken to be so".

At paragraph 8, Lord Bingham set out the actus reus of the offence as the "sending of a message of the proscribed character by the defined means".

Guidance was given by Lord Bingham as to the compatibility of Section 127(1)(a) with Article 10 of the European Convention at paragraph 14: "The restriction (of freedom of expression) is clearly prescribed by statute. It is directed to a legitimate objective preventing the use of a public electronic communication network for attacking the reputations and rights of others. It goes no further than is necessary in a democratic society to achieve that end."

THE FACTS

13. The Appellant was 26 at the time of the matter for which he was convicted and was of hitherto good character. He is well educated and there is no evidence that he is anything other than of sound mind.

14. The Appellant held a responsible job as an administration and finance supervisor. He had been in constant employment since completing his education. In recent times, the Appellant has undertaken tasks with a greater degree of responsibility and he told the Crown Court that he would not knowingly risk his job. However, in consequence of the arrest and then conviction by the Magistrates' Court, the Appellant was suspended and eventually dismissed.

15. The Appellant was, and is, a registered user of the "Twitter" social networking platform, which is owned and operated by Twitter Inc., an American corporation. Typically, a registered user accesses "Twitter" by means of the internet.

16. Each registered user has to adopt a unique user name. The Appellant used his own name for this purpose, and was registered as "@PaulJChambers". He also used his own photograph as his account picture.

17. “Twitter” enables its users to post messages (of no more than 140 characters) on the “Twitter” internet site. These messages are called "tweets", and they can be opinions, facts, descriptions of what the user was doing, or can contain any other information the user may wish. Users of “Twitter” can be "followed" by other “Twitter” users who find that user interesting or informative. “Twitter” users often enter into conversations or dialogues with other users.

18. Depending on how a user posts their “tweets”, others can see the “tweets”. A "public timeline" of a user shows the most recent “tweets” posted (25 or thereabouts) by a user. The followers of a “Twitter” user will see messages of that user unless they are addressed to another “Twitter” user, in which case the message will then only be seen by the user posting the “tweet”, the user to whom the “tweet” is addressed and their mutual followers. Most “tweets” remain visible to the user and his/her followers for a short period of time before being replaced by more recently posted “tweets”.

19. It is possible for non-users to access these "timelines" and read the messages should they visit the “Twitter” site. It is also possible for a limited period of time for non-users to use the search facility of “Twitter” to find “tweets” that contain certain search terms.

20. The Appellant met “Crazy Colours” on line and communicated with her on “Twitter”. “Crazy Colours” is the “Twitter” username of a female user living in Northern Ireland (and she has been referred to by this pseudonym throughout the court proceedings). They then met in person, and he was planning to see her again. It was obviously a relationship then in its early stages. It became an important relationship and he was living with her at the time of the appeal to the Crown Court. The Appellant was due to fly to Belfast from Doncaster Robin Hood Airport to meet “Crazy Colours” on the 15th January 2010.

21. On 6th January 2010, the Appellant and “Crazy Colours” were having a dialogue or conversation on “Twitter”.

22. As part of this dialogue or conversation, the Appellant posted two messages which were to be referred to at the Crown Court appeal. These messages were "@CrazyColours I was thinking that if it does then I've decided to resort to terrorism" and "@CrazyColours. That's the plan! I'm sure the pilots would be expecting me to demand a more exotic location than NI". These messages are not the subject of the conviction and did not form part of the charge. They were not put before the Magistrates' Court, although they were produced by the Prosecution at the Crown Court. No “tweets” sent by “Crazy Colours” at this time were produced by the Crown at the Crown Court and no evidence was put before the Crown Court as to the context of these two “tweets”.

Both these messages were addressed to "Crazy Colours".

23. Later, on 6th January 2010, Doncaster Robin Hood Airport was reported as being closed due to adverse weather conditions. The Appellant became aware of the closure through an alert on “Twitter”. In response to hearing of this closure of the airport, the Appellant posted the following “tweet”:-

Crap! Robin Hood airport is closed. You've got a week and a bit to get your shit together otherwise I am blowing the airport sky high!

In evidence, the Appellant denied that there was any link between the messages set out in paragraph 22 and the message, the subject of the charge which was sent two hours later. When asked why he made reference to terrorism in his private messages, he said, "I never thought about it".

In evidence, the Appellant denied that he had posted the message, which was the subject of charge, onto the public timeline so as to ensure that it received general attention, rather than directing it to "Crazy Colours" as his other messages had been.

24. This “tweet” is the subject of the charge and conviction.

25. The Appellant stated that he had been frustrated by the potential cancellation of, or interference with, his plan to visit Belfast to see “Crazy Colours”, and he stated that his followers would have been aware of the importance to him of his relationship and would appreciate his exasperation. The Appellant stated, in police interview and under cross-examination, that he had intended the “tweet” as a joke and that it was not intended to be menacing. The Appellant said he did not see any risk at all that it would be so regarded. He said that, if he had, he would have not posted it. His counsel referred to the “tweet” as a “hyperbolic statement of exasperation.” The Appellant, when asked in interview if he was aware that some people might get a bit jumpy said, “Yeah. Hmm mmm.”

26. No evidence was put before the Magistrates’ or Crown Court that any of the Appellant's followers (or any other person who may have seen the “tweet” posted on the Appellant's timeline) found it to be of a menacing character or in any way alarming.

27. However, this “tweet” was found by Mr Duffield, the duty manager for Robin Hood Airport, whilst he was off duty on 11th January 2010. Mr Duffield did not see it on the Appellant's timeline. Mr Duffield was at home searching “Twitter” for “tweets” containing references to Robin Hood Airport. Mr Duffield's evidence before the Crown Court was that he was responsible for security at the airport. He said that the security level was, at that time, graded as “substantial”, which is the third highest level of a possible five. Mr Duffield said, in cross-examination, that he did not know whether the “tweet” he had found on his search was a joke or not.

28. Mr Duffield referred the “tweet” to his manager, Mr Armson. It was the responsibility of Mr Armson to grade any perceived threat as either “credible” or “non-credible”. A “credible” threat is referred to the Ministry of Defence, but it is airport procedure that even a “non-credible” threat must be reported to the airport police. Mr Armson assessed the Appellant's “tweet” and graded it as “non-credible” as it featured the Appellant's name, and he noted that the Appellant was due to fly in the near future. However, in accordance with airport procedure, he passed the “tweet” to the airport police who also took no action other than referring the matter to South Yorkshire Police.

Mr Duffield qualified this by saying that he did not know, that it could have been a “credible” threat and that even jokes could cause major disruption and had to be investigated.

Mr Armson, Airport Manager, stated that all threats are treated as serious.

29. On 13th January 2010, the Appellant, who was then at his workplace, was arrested for a suspected bomb hoax, under the Criminal Law Act 1977 and he was interviewed under caution. He repeatedly stated that he had meant the “tweet” as a joke and did not have any wrongful intent. D.C. Lighton, one of the investigating officers, recorded the following comment on the South Yorkshire Police Crime Management System on 10th February 2010, four weeks after the defendant’s arrest and interview:-

Male detained re making threats to Doncaster Robin Hood Airport. The male in question has been bailed and his phone/computer has been seized – there is no evidence at this stage to suggest that this is anything other than a foolish comment posted on “Twitter” as a joke for only his close friends to see.

30. However, the police sought the advice of the Crown Prosecution Service, and, as a result of their advice, the Appellant was charged with an offence under Section 127(1)(a) and (3) of the 2003 Act.

THE GROUNDS OF APPEAL AT THE CROWN COURT

31. The Appellant appealed to the Crown Court by a Notice of Appeal dated 18th May 2010, which listed the grounds of appeal as:

a. the message was not menacing within the meaning of the statute;
b. the Appellant lacked the necessary mens rea; and
c. the message was not sent by a public electronic communications network.

FINDING OF THE CROWN COURT AS TO ACTUS REUS

32. The Crown Court held that whether the message was of a menacing character in its terms is a question of fact for the Court.

33. In the judgment rejecting the submission that there was no case to answer, the Court stated that it was “satisfied to the appropriate standard that the words contained in the message speak for themselves; there is no ambiguity. This case is in stark contrast to the example of the "Old Contemptibles" given by the House of Lords. The message was sent at a time when the security risk was substantial and when all threats of whatever level were reported to the police for investigation, as was the case here”.

34. In dismissing the appeal, the Crown Court stated that it was “satisfied, on the evidence, that the message in question is menacing in its content and obviously so. It is difficult to imagine anything more clear. It fits the Oxford English Dictionary definition and the observations of Lord Justice Sedley, to which we have earlier referred. It is, in our judgment, menacing per se”.

35. The Crown Court held that the offence does not require the message to be seen (and there was no evidence before the Court that anyone other than Mr Duffield saw this particular message). The Court stated that it took the view that an ordinary person seeing the “tweet” would see it in that way and be alarmed. The airport staff did see it and were sufficiently concerned to report it.

36. The Crown Court also held, when rejecting the submission of no case to answer, that no question of Article 10 rights can arise here as the right is qualified when "necessary ... in the interests of national security, territorial integrity or public safety".

FINDINGS OF THE CROWN COURT AS TO MENS REA

37. In rejecting the submission that there was no case to answer, the Crown Court held that there was evidence which was capable of proving the necessary mens rea. This was a message which was on a website which the public was freely able to access. It was accessible not just to the airport staff but also, potentially, to prospective passengers who might well have been alarmed by what they saw. An experienced security officer, by reason of his job, may be better able to form an opinion about the nature of any threat and the level of risk than members of the public, but the Court could not overlook the fact that this was a message posted on a site to which all members of the public had access. The Court held that the responses of the Appellant in interview, which were self-serving, were irrelevant to this issue. There was evidence that, at the very least, the Appellant must have been aware that this message may so be taken, as he had earlier that day posted two seemingly related messages to “Crazy Colours”.

38. In its reasons for dismissing the appeal, the Crown Court held that the required mens rea for this offence is that the person sending the message must have intended the message to be menacing, or be aware that it might be taken to be so. The Appellant was 26, well educated and in a responsible job and there was no evidence that he was anything other than of sound mind. The Court found the Appellant to be an unimpressive witness and found it impossible to accept that anyone living in this country, in the current climate of terrorist threats, particularly at airports, would not be aware of the consequences of his actions in making such a statement. Furthermore, the Court was satisfied that he, as an experienced user of “Twitter”, made a deliberate decision to post this message on the public timeline of “Twitter” on the very day he sent seemingly related messages to “Crazy Colours” and within two hours of posting them. The Court did not accept his evidence that he was unaware of television news and newspaper reports at the material time. The Court was satisfied that the Prosecution had proved the necessary mens rea and that the Appellant was, at the very least, aware that his message was of a menacing character.

THE QUESTIONS FOR THE HIGH COURT

(1) In order to prove that a message is "of a menacing character" within the meaning of Section 127(1)(a) (read according to conventional canons of construction or with the benefit of Article 10 ECHR and Section 3 of the Human Rights Act 1998) is the prosecution required to prove, as part of the actus reus of the offence, that the person sending the message intended, "to create a fear in or through the recipient" (per Sedley LJ in Collins supra) or, were we correct to conclude that the question whether a message is "of a menacing character" is an objective question of fact for the Court to determine?

1(a) In order to prove that a message is of a "menacing character" within the meaning of Section 127(1)(a) (read according to conventional canons of construction or with the benefit of Article 10 ECHR and Section 3 of the Human Rights Act 1998), is the Prosecution required to prove that the person sending the message intended to create a fear in or through the recipient (Sedley L.J., in Collins, supra, having defined a menacing message as "a message that conveys a threat ... which seeks to create a fear in or through the recipient that something unpleasant is likely to happen”) or were we correct to conclude that the question of whether a message is "of a menacing character" is an objective question of fact for the Court to determine applying the standards of an open and just society and taking account of the words, context and all relevant circumstances?

1(b) Is the actus reus of the offence (Lord Bingham in Collins supra), "the sending of a message of the proscribed character by the defined means", as we found, or does the actus reus include a requirement that the person sending the message intended the message to "create a fear in or through the recipient"?

(2) What is the mens rea for an offence of sending a message of a menacing character contrary to Section 127(1)(a)? In particular:

(a) Is Section 127(1)(a) (read according to conventional canons of construction or with the benefit of Article 10 ECHR and Section 3 of the Human Rights Act 1998) a crime of specific intent?

(b) Is the Prosecution required to prove as part of the mens rea of the offence that the person sending the message intended to put another person in fear?

(c) If the answer to (b) is no, is it sufficient for the Prosecution to prove that the person sending the message realised that his message may or might be taken as menacing, or must the prosecution prove that he realised that it would be taken as menacing by a person of reasonable firmness aware of all the relevant circumstances?

(3) Did the Court act lawfully (within the meaning of Section 6 of the Human Rights Act 1998) in convicting and sentencing the Appellant as it did? In particular:

(a) Did the Appellant’s act in posting the message engage his right to freedom of expression under Article 10(1) ECHR?

(b) If so, did his conviction and sentence amount to an "interference" with the exercise of that right?

(c) If so, was that interference necessary in a democratic society for one of the reasons listed in Article 10(2)?

(4) In all the circumstances, was the Court correct to conclude that the message sent by the Appellant crossed the threshold of gravity necessary to constitute a message "of a menacing character" so as to amount to a criminal offence within the meaning of Section 127(1)(a) and (3) and was the Court correct to convict the Appellant on the evidence and sentence him as it did?

3rd March 2011

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Beyond the News of the World apology

2011-04-10T14:57:00.008+01:00

What is the significance of today's apology by the News of the World in respect of the voicemail hacking scandal?

In legal terms, it isn't that important.

None of the claimants in the civil actions have agreed to settle their claims on this basis. It also does not cover all the claims outstanding. No apology seems to have been accepted, nor any compensation paid.

In strict terms, the apology is nothing other than a gesture: a tactical manoeuvre in a far wider complex of legal problems which News International (and possibly other publishers) are trying to contain and close down.

That said, it is a clever move.

Some claimants may accept settlement on this basis. If so, their claims are brought to an end and they receive compensation. It may be that such a settlement includes non-disclosure and similar provisions. Claimants who press on, notwithstanding the offer of settlement and the admission of civil liability, will do so at the risk of additional legal costs: English courts tend to penalise with adverse costs awards those parties which go on to trial when the other side has already conceded defeat.

It is also a clever move in terms of public relations: it is part of the common "we put our hands up" and "let's just now draw a line" rhetorical approach often used by the insincere and culpable.

But the apology will not help News International much more than that.

The main legal problem they have is not from the civil claims of individual victims of the phone hacking activity but potential criminal prosecutions against individuals and, possibly, against News International as a corporation. The apology will have no legal or (it seems) practical effect on closing down the re-opened police investigation.

The further problem facing News International is the various parliamentary and press investigations into the irregular relationship it had with the Metropolitan police.

There still appears no good reason why the original police inquiry was narrowed so quickly. The explanation could be knavery or foolery, but there is a public interest in finding out what curtailed the original investigation.

It may well be that we will never find out - that this current crisis is defused before any revelations are made.

One cannot have any doubt that the lawyers for anyone who did act wrongly are doing everything they can to put the problem in a box and tie it up.

The question is whether the parliamentary and press investigations can get to the bottom of the botched police investigation first. Whoever wins that race, today's apology is strictly irrelevant.

And there is the broader problem of how far the phonehacking went beyond News International.

Was it prevalent on an industrial scale?

Were they all at it?

Who knows?

Today's apology does not tell us which other parties were involved in this criminal activity. But it does tell us that the old fiction of one rogue reporter cannot any longer be sustained.

And, in turn, that tells us that however well the "fixers" and "problem solvers" believe they have "dealt with" a problem, as those at News International undoubtedly believed they had done before the current storm, it is possible - sometimes - that parliament, the courts and a free press can sometimes work together to expose unlawful and perhaps corrupt conduct.

Today's apology would simply not have occurred without the combined efforts of MPs, lawyers, and certain journalists; and, perhaps, that is its main significance.

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April Foolery, and why Skepticism is not a cult.

2011-04-03T16:28:00.015+01:00

A couple of days ago, on 1 April 2011, I posted a brief blogpost setting out why "skepticism" was just another cult.

It was, of course, an April Fools' joke.

However, the joke consisted of two parts, the second more subtle and (for me) entertaining than the first.

There was the post itself. It was intended to have a superficial plausibility. However, anyone aware that I am founder and convener of Westminster Skeptics and on the Editorial Board of The Skeptic (as well as a speaker at numerous Skeptics in the Pub groups), should have at least twigged that I was not being entirely serious.

Nonetheless, the post was taken seriously by quite a few people, especially on Twitter. Scalps included - wonderfully - David Aaronovitch (author of the excellent Voodoo Histories), who assured me that his experience of Skeptics in the Pub groups was quite contrary to any cultist behaviour.

Others taken in by the post were various earnest sorts, many of whom not entirely supportive of skeptics and our ways.

(By "skeptic" in its American spelling, I mean those affiliated with Skeptics in the Pub, The Skeptic magazine, and such things, and those self-defined as "skeptics" who promote an evidence-based and critical approach to questions where such an approach can be applied. Apart from the self-conscious use of the term, there should not really be any practical difference between skepticism and scepticism.)

The second part of the joke was a little more subtle.

This blog has pre-moderation for its comments. However, and somewhat naughtily, I did not set out my "comments moderation" policy at the foot of the post (as I usually do). Then, for the rest of the morning, I only published comments which did not spoil the April Foolery.

Some of the comments which were published that morning were deliciously sombre and worthy; others were clearly clever and ironic. But quite soon, the apparent fact that none of the commenters were "getting the joke" was itself becoming an issue on Twitter.

But those guffawing at the lack of intelligence and awareness of the commenters were as much April Fools as the tricked commenters themselves.

For every one who fell for the original post, there were at least five who fell for the seeming lack of intelligent and aware commenters. Somehow, people wanted to believe that people could be that stupid

By noon, only about a dozen commenters were taken in. In the meantime, I had received - but not published - over a hundred comments by those who had seen the joke. (All those comments are now published, and so it is now difficult to distinguish the fooled comments.)

So not a bad result for a brief April Fools' post.

However, the question lingers: is skepticism a "cult"?

Have I unwittingly spoken truth in jest?

Some people are even maintaining that my subjective intention is irrelevant: like a Shakespearean Fool on April Fools' Day, I have said many a true word...

Of course, one cannot logically refute such an allegation by a simple denial.

But I can set out why I do not believe it to be true, and I will contend that the very fact of my hoax blogpost evidences that skeptics are perfectly capable of the self-criticism and self-awareness which is inconsistent with "cultist" thinking.

Anyone who organises or attends skeptic events will know the force of what I have said elsewhere, that "when cats complain, they complain of herding Skeptics".

The only thing which most "skeptics" seem to have in common is an instant readiness to tell someone else that they may well be wrong. And there is no immunity from this even if one professes oneself a skeptic.

The seeming adulation that is granted to the likes of Ben Goldacre or Richard Dawkins is not universal amongst self-defined skeptics. There is instead a self-correcting mechanism to stridency and fervour, and my blogpost is a small part of that. By suggesting that skepticism was a cult, I am - perhaps paradoxically - showing a very un-cultish approach to facets of the skeptic phenomenon. But I am certainly not the only one, for example hear Frank Swain speak about the problems of skepticism - to a pub full of skeptics.

One must admit that there are certain ultimate positions, such as homeopathy or creationism, which are unlikely to be held by anyone adopting an evidence-based and critical approach. One must concede that such ideas are derided.

But even in those cases, the emphasis in skepticism is to ask for the evidence and to scrutinise the reasoning. Any homeopath or creationist who wants to offer evidence and reasoning will be heard.

And skepticism is also not the same as atheism, though there is an overlap in supporters. There are certain metaphysical questions which do not admit easily (or at all) to a rational analysis. All one can say is that there is no good evidence for, or no way way of proving, such propositions.

One can conceive of a skeptic Christian or supporter of a form of complementary health: the important thing is how those views are treated and tested, not that those views are held at all. I do not believe in gods or ghosts or fairies at the bottom of my garden, but I will admit the possibility of their existence, and I can tell you what I will need to see as evidence. That is the essence of skepticism.

There is no sense in saying skeptics are a cult. There isn't even a skeptic movement, in any meaningful way. There are various skeptic groups, websites, and publications; and there are those who go along (or not) and self-define as "skeptics". But there are not any "leaders" or "congregations" or even "holy texts". There are some who bother to organise events, some who put their views out for challenge, and there are certain texts one recommends to those who may share an interest. But all that is true of many groupings generally: it does not add up to a cult.

As I said, trying to get any coherence with constantly-questioning people is a struggle, and I am amazed there is any organisation at all.

One could almost say that skepticism could actually do with becoming more cultish; but I will perhaps save that suggestion to next year...

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Why "skepticism" is now just another cult

2011-04-01T00:56:00.005+01:00

Anyone adopting an "evidence-based" approach must reluctantly concede that the so-called "skeptic" movement has now just become another cult.

This is unfortunate.

However, the evidence is overwhelming.

For example, the opinions of "leaders" such as Richard Dawkins, Ben Goldacre, or Simon Singh are adopted without question. Anyone who questions these opinions are rubbished and insulted.

There are "sacred texts". The "skeptic" populist Robin Ince always carries the "holy" texts of Carl Sagan, and he just quotes from it in response to any searching question. Indeed, "skeptics" are encouraged to buy texts as part of their "skeptic" education, always to the financial benefit of leaders such as Dawkins, Goldacre, and Singh. There is also pressure to contribute to litigation funds, so as to ensure the legal rights of "skeptics" are protected.

And then there are meetings. Loads of them: monthly rallies held not in churches, but in taverns and private houses in every town and city. There are even conferences, such as "TAM" and "QED", where novice "skeptics" are expected to sit and listen to hours of earnest and rather dull "skeptic" propaganda.

It is all rather worrying.

People are being duped by the rhetoric of "evidence-based thinking" into joining groups where certain positions on, say, alternative health and on religion are simply ridiculed and dismissed.

It is time for the so-called "skeptic" movement to concede it has become the sort of thing it purports to attack: a quasi-religious movement, with leaders, texts, congregations, and mind-control.

The "skeptics" are now just another cult.

[Addendum: please note this was published for April Fools' Day...]

[Second Addendum: please also note that on 1 April, no "spoiler" comments were published unti the mid afternoon. However, the comments below are in order of posting not moderation. Do bear this in mind as you read them: the ones pointing out it was really an April Fools' post were simply not there as the wonderful earnest and ironic ones mounted up.]

The Death of Smiley Culture

2011-03-27T23:18:00.014+01:00

For many who were growing up in the early 1980s, one or two songs of Smiley Culture (David Emmanuel) were part of the general soundtrack.

In his Police Officer (1984), Smiley Culture captured exactly the sneering arrogance of those who exercise the coercive power of the state without any practical accountability.

It is well worth watching.

.

The exchange at 1:58 to 2:20 of the video conveys the attitude of the police in being able to subject citizens to their power without the citizens being able to answer back.

The lyrics to that segment are:

"Well, Wha wha wha what's your name then son?"

"My name Smiley Culture."

"Yeah, Where do you think you're coming from lad?"

"From seeing me mother."

"What's the registration number of the car then?"

"I can't remember."

"What you got in the boot then son?"

"A cassette recorder.

Would you like to have a look?"

"Shut your bloody mouth.

We ask.

You answer.

Now take the keys out of the car and step out of the motor.

Me and my colleagues have got a few questions to ask ya.

You'll be on your way as soon as we get an answer."

Until the middle of this month, however, Smiley Culture was just another voice of the 1980s, though one which (for me) was playing in the back of my mind whenever I wrote about police brutality and misconduct.

I had no idea what had happened to him: whether he was still with us or not, whether he was now a businessman or - indeed - a police officer.

And then news came of his death.

But it was not a commonplace death.

In fact, he died during a police raid.

We are told that he died from a single stab wound during that police raid.

The Independent Police Complaints Commission are now investigating the circumstances of the death of Smiley Culture.

Of course, one should not prejudge the investigation.

However, I cannot help but think of the attitude expressed by "Shut your bloody mouth./ We ask./ You answer" whenever there is any investigation of any possible police conduct, especially of a suspicious death in police custody.

Rest in peace, Smiley Culture.

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