October - Annual - Civil Practice - 978-0-7798-6561BA - $
from http://feedproxy.google.com/~r/Newlypublished/~3/EFDr6oi9dF4/
0 Comments
October - Annual - Civil Practice - 978-0-7798-6531-4 - $135
from http://feedproxy.google.com/~r/Newlypublished/~3/sT3MyNwqgEU/
October - Annual - Civil Practice - 978-0-7798-6561BP - $184
from http://feedproxy.google.com/~r/Newlypublished/~3/_cpRihD3lFk/
October - Annual - Core Income Tax (Federal) Library - 978-0-7798-6641-0 - $26.95
from http://feedproxy.google.com/~r/Newlypublished/~3/8tiQjncpnKg/ Given the overwhelming evidence that Leave campaigners stretched funding rules beyond their legal limits, used covertly acquired Facebook data to target political advertising, and to put it bluntly cheated during the Referendum campaign, there is little surprise in the fact that Leave supporters are now urging their followers to use underhand methods to undermine the legitimacy of the Parliamentary Petition to revoke Article 50. A handsome but somewhat callow-looking youth called Steven Edginton, the digital strategist for “Leave means Leave,” for example, claims – no doubt correctly though one never knows with people who consider their dishonesty virtuous – to have signed the petition three times in the names of Jean-Claude Junker, Donald Tusk and Michel Barnier. Julia Hartley-Brewer has encouraged others to do the same, using, like Mr Edgington multiple email addresses. The purpose, obviously, is to undermine the legitimacy of the petition, so that however many signatures it garners it can be written off as untrustworthy and irrelevant. Online parliamentary petitions are rather curious things. They have no statutory authority. Although the Petitions Committee (a House of Commons, not a Government body) promises to “respond” to all petitions receiving at least 10,000 signatures, and to “consider for debate” any receiving over 100,000, there is no mechanism for enforcing a refusal to respond or to organise a debate on a petition, no matter how many people sign it. I suppose if you wanted to waste a great deal of money on a pointless legal case there might be a theoretical possibility of judicially reviewing the Committee if it refused, without any reason, even to consider organising a debate on a wildly popular petition, but good luck with that if you want to give it a try; apart from anything else I’d guess that its proceedings would be covered by Parliamentary privilege. The petitions have only the most rudimentary security to prevent multiple voting, or voting in false names. They possess no more legal clout than a twitter poll, which is to say the same legal force as the 2016 Referendum: none whatever. Politically, I suppose they have a persuasive force ranking slightly above a twitter poll, but several orders of magnitude below the Referendum. Nevertheless, according to James Patrick, who was formerly a police officer, anyone encouraging people to sign the petition in false or multiple names, and particularly anyone doing so themselves, is guilty of a criminal offence under S.3 of the Computer Misuse Act 1990. He advises those becoming aware of this behaviour to report it to the police. It would be surprising if the police acted on any such complaint, except to tell the complainer to get a life and stop wasting police time with trivia, and indeed the West Midlands Police, at least, appear to have done just that (albeit in more polite language). Thanks to the invaluable Threadreader App, here is Mr Patrick’s argument as he tweeted it: Let’s talk about Section 3 of the super Computer Misuse Act of 1990, it’s the offence of messing with systems and systems data, and you can commit it just by being reckless. If you do an unauthorised Act and know at the time you’re doing it’s unauthorised, you’re in trouble.
The next bit breaks down into two bits. Impairing operation of a computer. So creating DDoS and false petition entries, for example, are obviously included. Where the offence talks about actions it includes causing an act to be done and a series of acts. Finally, it’s an either way offence. So it can be dealt with by magistrates (12 months in prison max) or by Crown Court trial (10 years in prison). In the eyes of the law this offence is sufficiently serious to warrant a lengthy prison sentence. With computer misuse having the capacity to affect every aspect of our economy, personal lives, and democracy, this is an important remedy to be aware of and a deterrent to all. Hope you found this explainer useful. Have a good day. I suggested to Mr Patrick that people following his advice and reporting people like Julia Hartley-Brewer to the police were more likely to be themselves arrested for wasting police time. His response was confident and unequivocal: “Utter horseshit.” He added that “a barrister should know better.” He described others who expressed disagreement with him on the interpretation of the Computer Misuse Act as “dicks,” “nuggets” and “buffons.” They had “no understanding of the law” and were talking “drivel.” With his arrogance matched only by his bad manners it is perhaps just as well that Mr Patrick is no longer a police officer. Anyway, let’s look, bit by bit, at S.3 of the Computer Misuse Act 1990 to see if signing the Petition multiple times, or in false names, is in fact an offence as Mr Patrick asserts. 3. Unauthorised acts with intent to impair, or with recklessness as to impairing, operation of computer, etc.
(a) he does any unauthorised act in relation to a computer; (b) at the time when he does the act he knows that it is unauthorised; and (c) either subsection (2) or subsection (3) below applies. The first step is to see whether Ms Hartley-Brewer, or those following her advice, have done an “unauthorised act in relation to a computer.” “Unauthorised act” (which includes a “series of acts”) is helpfully, if only partially, defined in S.17 (8). “An act done in relation to a computer is unauthorised if the person doing the act (or causing it to be done)- (a) is not himself a person who has responsibility for the computer …; and (b) does not have consent to the act from any such person. This helps to define “unauthorised,” not “act,” but there is clear authority that sending an email, for example, is an “act done in relation to a computer”: see DPP v. Lennon [2006] EWHC 1201. Normally, sending emails to a computer is an authorised act: the fact of having a computer configured to receive emails would imply consent to the act of sending an email to it, even if it is unwanted. Nevertheless, there are circumstances, in which consent is not implied: the sending of an email containing malicious software, for example, or (as in Lennon) the sending of millions of emails with intent to overwhelm a server. When you sign a Parliamentary Petition you do not send an email. You enter your name and an email address into a box on the Parliamentary Petitions website, which then automatically sends a link to the email address which you have supplied. Once the link is clicked, the electronic signature is registered. There is nothing to stop you using a different email address to sign a second time, or indeed as many times as you have access to different email accounts. Nor is there anything to stop you giving a false name. There is no relevant conceptual difference between clicking a link which registers on a computer, and sending an email. If sending an email is an “act done in relation to a computer,” so is clicking a link. However, whether giving a false name, or signing multiple times, is an “unauthorised” act is not so clear. Keep in mind that an act is “unauthorised” if the person doing the act (in this case signing the petition in a false name, or multiple times) does not have the “consent” of the “person with responsibility for the computer.” Quite who that “person” is I’m not sure, but we can pass over that minor problem for now. A rather striking aspect of the website is that it contains no terms or conditions, and no warning that you are allowed to sign the petition only once. It does ask you to give your name and address, and to confirm that you are a British citizen or a UK resident. But that’s it. There is no explicit prohibition on signing a petition multiple times or in the name of Jacob Rees-Mogg or Boris Johnson. If signing multiple times is to be regarded as “unauthorised” then a lack of consent must be implied. It is certainly not explicit. We get a little more understanding about how the site works by looking at its privacy policy. Under the heading “Why we need your data” it explains: We use this information to:
But this is a privacy policy, not a rule of the petition. It is simply a statement of how the committee will treat the data it receives. Nobody is directed towards it, or required to tick once of those annoying boxes that makes you confirm that you have read the privacy policy even when you haven’t. I suppose it might be argued that you are expected to sign only once, but that seems a remarkably vague basis upon which to base criminal liability when the system allows you to sign using as many email addresses as you have the use of. And what of false names? The site asks for your name, but there may be many entirely legitimate reasons for not wanting to give your real name. For example, you might not want your identity to be published because, although you privately support the aim of the Petition, you want to do so anonymously. You might be a child (there is no age restriction) who does not want your parents to know about your Remainiac tendencies. Or, you might simply wish – as Ms Hartley-Brewer wishes – to make the whole Petition as unreliable as possible. As it’s a document with no legal force anyway, it would be odd if legal consequences flowed from not taking it as seriously as others think you should. It would be bizarre if signing it insincerely should expose you to a criminal prosecution. If the website was deliberately bombarded with automatically generated fake signatures designed to cause it to crash that would be a different matter. No-one consents to their website being rendered unserviceable. Such a “denial of service” attack would be an unauthorised act, see Lennon above (a case in which a “mail bombing” program was used to send approximately 5 million emails with intent to “overwhelm” a company’s computer system). But even if signing the petition in multiple false names could be considered a series of “unauthorised acts,” it still does not follow that it is criminal. To become a crime, it must be done with the requisite “mental element.” This is set out in subsections (2) and (3): (2) This subsection applies if the person intends by doing the act– (a) to impair the operation of any computer; (b) to prevent or hinder access to any program or data held in any computer; (c) to impair the operation of any such program or the reliability of any such data; or (d) … Subsection (3) provides that recklessness as to whether the act will do any of the things in subsection (2) paragraphs (a) to (c) will also suffice. Although the Petitions website apparently crashed at the weekend under the weight of people signing the petition, there is no suggestion that Ms Hartley-Brewer or the callow youth on Channel 4 intended that to happen. On the contrary, their intention was to demonstrate that the apparently large numbers of people signing the petition were not to be taken at face value because it could so easily be manipulated, a perfectly reasonable point to make, if, perhaps, a rather childish way of making it. There is no evidence of any intent to “impair the operation of any computer” or indeed to “to prevent or hinder access to any program or data held in any computer.” But if S.3 (2) (a) and (b) are not made out, what about (c)? Was there an intent“to impair … the reliability of data [held in the computer]?” Or if not an intent to do so, then recklessness that this would be the consequence? The effect – and the intent – of signing with false names, or from multiple email addresses is that the numbers apparently signing the petition cannot be relied upon. Surely then that is an intent “to impair … the reliability of the data” held on whatever computer hosts the Petitions website? Mr Patrick thinks so, and in a later tweet he referred to the Crown Prosecution Service legal guidance to make his point. As the CPS puts it: “If a computer is caused to record information which shows that it came from one person, when it in fact came from someone else, that manifestly affects its reliability and thus the reliability of the data in the computer is impaired within the meaning of Section 3(2)(c).” The quotation used by the CPS comes from the judgment of Lord Woolf CJ in Zezev v. Governor of Brixton Prison [2002] EWHC Admin 589. Unfortunately both the CPS and Mr Patrick appear to have taken a single sentence from Zezev and given it a weight which it is quite incapable of bearing. To explain why I am afraid we need to look at Zezev in a little detail. The case involved a request for extradition by United States Government, which wanted to try Mr Zezev (and an accomplice) on charges of blackmail and conspiracy to modify a computer belonging to Bloombergs, the multinational news and financial information company. They had “gained unauthorised access to functions on the Bloomberg computer system,” and then blackmailed Bloombergs by threatening to reveal that their system was compromised. One of the principles of extradition law is that a person cannot be extradited unless the conduct alleged is a crime in both the requesting state (here the USA), and the state to which the request is made (the UK). Blackmail obviously satisfied this test, but it was argued on behalf of Mr Zezev that the evidence did not support the allegation that he had conspired to commit any computer crime under English law. The CPS, on behalf of the United States, argued that he was guilty of conspiring to commit an offence under S.3 of the Computer Misuse Act, and the Court agreed. Unfortunately the judgment does not explain with much clarity exactly what it was that Zezev was meant to have done (I’m sure this was not because the judges themselves didn’t understand it) but it obviously went far beyond simply sending an email. Lord Woolf explained it like this: “There was evidence against the applicant Zezev that he would use the computer so as to record the arrival of information which did not come from the purported source. In other words, the information would tell a lie about itself, namely that it had come from person A, when in fact it had come from person B.” The crucial point is that Zezev himself used the computer he was accused of “misusing”; he had access to it, and somehow caused it to record incoming information incorrectly. Taken out of context the sentence on the CPS website makes it appear that Lord Woolf was laying down a general rule that sending an email containing incorrect information, or in a false name, can be considered an offence under the Computer Misuse Act. He was doing nothing of the sort. So there it is. Whether or not you approve of Ms Hartley-Brewer’s actions, and whether or not you want Article 50 revoked (as I do, and I have signed the Petition, just the once and in my own name), you commit no crime by signing it multiple times, and you commit no crime by signing it in a false name either. The post Are you committing a crime if you sign a Parliamentary Petition in a false name? appeared first on BarristerBlogger. from http://barristerblogger.com/2019/03/25/are-you-committing-a-crime-if-you-sign-a-parliamentary-petition-in-a-false-name/ Fiona Onasanya’s attempt to appeal against her conviction for perverting the course of justice failed at the Court of Appeal yesterday. It leaves the way open to her constituents recalling her and forcing her to contest her seat in a by-election. She will not be the Labour Party candidate and surely has literally no hope of winning the seat as an independent. Sadly for her, her political career will have to be put on ice for a few years, and her legal career – she is a qualified solicitor – is unlikely to be available to her for much longer either. A conviction for perverting the course of justice is simply inconsistent with that profession. I have no wish to add to Ms Onasanya’s woes. Even though she was responsible for her own downfall, it is hard not to feel some sympathy for a woman who has recently been diagnosed as suffering from multiple sclerosis and who committed a crime that – to many members of the public, although not to the higher courts – is often regarded relatively minor. Perhaps she can take comfort from the near complete rehabilitation of Vicky Pryce, the economist who served a longer prison sentence than that imposed on Onasanya for wrongly agreeing to take her politician husband’s speeding points. She is now a regular media commentator on economic affairs and nobody seems to hold her conviction against her. One of the curious and so far unexplained aspects of the case is that Ms Onasanya chose to represent herself in the Court of Appeal. She had been represented by leading counsel Christine Agnew QC at her two trials, and normally one would expect the same advocate to appear at her appeal. However, a barrister’s role on an appeal is somewhat different from that before conviction. Before you are convicted and sentenced your barrister cannot decide the case is hopeless and refuse to act for you. (In fact, at Ms Onasanya’s first trial there was a hung jury so it clearly was not entirely hopeless anyway). Once you are convicted though, an advocate is no longer professionally obliged to draft grounds of appeal, or to represent you at any application for leave to appeal; indeed the bar code of conduct states that a barrister must not draft any document “containing a contention which [they] do not believe is properly arguable.” Convicted defendants sometimes think that they have an automatic right to appeal. It can come as an unpleasant surprise when they learn that they do not. You have to have arguable grounds – normally based on something that went wrong at the trial – and before you can argue them, you have to be given permission to do so. An appeal hearing is not a retrial; it is a review to make sure the original trial was conducted fairly and in accordance with the law. The Court of Appeal sets enormous store by a jury’s verdict. It is no good simply asserting that the jury got it wrong, or that they believed witnesses whom they should have disbelieved. The assumption is that if the rules were observed, the jury can be trusted to have got it right. Very occasionally fresh evidence can be introduced, but it has to be highly significant and there has to be a convincing explanation for why it was not called at the original trial. I don’t know if this was the case with Ms Olansanya, but it seems very likely that the reason she was unrepresented is that her counsel took the view that she had no arguable grounds for an appeal. I am sure that Sir Brian Leveson, the most senior judge at the hearing yesterday, would have listened to her arguments carefully but it is hard not to think that the lack of representation says to the court “even her own lawyers don’t think her arguments are much good.” Psychologically, it is not a good place to start. Strictly speaking yesterday’s hearing was not an appeal; it was an application for permission to appeal; it was the initial hurdle to establish that her appeal was even arguable. The procedure for an appeal usually goes like this:
The figures are pretty stark. In the year ending September 2017 (the latest for which the figures have been published) the Court of Appeal received 1,383 applications for permission to appeal against conviction, heard only 215, and just 78 were successful in the sense that the conviction was quashed. It is not a precise figure (applications made in one year are often not decided until the following year), but the chance of any one application for permission to appeal resulting in a quashed conviction is only around 5.5%. The procedure is kept running smoothly by an important but little publicised lawyer called the Registrar of Criminal Appeals. The current holder of the post is Alexandra Beldam, who rather confusingly is known as “Master Beldam.” She has a little discretion to tweak the procedure. She can see that some cases are dealt with more speedily, and can sometimes refer applications for permission to appeal straight to the full court, by-passing the single judge. She seems to have done both of those things in this case, taking the view that it was in the public interest for an MP’s case to be decided more quickly than usual. Ms Onasanya is a solicitor, but her professional experience was in commercial property. Checking the enforceability of restrictive covenants in office blocks is a fine and honourable job, and someone has to do it, but – except perhaps if rarified questions of real property law are involved, which unfortunately for her they were not in this case – a commercial property solicitor is no more equipped to appear in the Court of Appeal than an avionics engineer is equipped to pilot an F-16 in armed conflict. Even abandoning an appeal can be rather tricky. It’s no good just writing and saying you want to surrender; you have to use the correct form, and if you get in a muddle, and particularly if you leave it too late, the Court can insist on hearing the case anyway. This happened not long ago to another hapless solicitor, Afame Offiah, who tried without success to abandon a hopeless appeal against a criminal confiscation order made against his clients. The law of confiscation is very unfair, as well as hopelessly complex, technical and mind-numbingly tedious, so I can well understand both Mr Offiah’s initial instinct to appeal, and his subsequent failure to realise that the appeal he lodged was doomed to crash and burn. Far too late in the day his firm wrote to say that it wished to throw in the towel, but the court listed the case anyway, requiring Mr Offiah to attend. In an excrutiating hearing judges extracted from him a confession that the service he had provided was “complete and utter rubbish.” According to the Law Society Gazette: “… his explanations were variously described as “nonsense” and “incompetence” and the subsequent judgment stated that “the errors were so basic and the grounds so defective that we questioned when we read the papers, whether any qualified lawyer could have been near them.” The unfortunate Mr Offiah – a solicitor of 19 years’ experience – was even accused of giving dishonest and misleading answers to the judges, but the Solicitors Disciplinary Tribunal accepted his “plausible and consistent” explanation that he had not been dishonest but had acted as he did “due to confusion and error.” His appearance in the Court, like Ms Onasanya without any papers, had been, he said, “much worse than a catastrophe.” Due to fear and anxiety he was like a “rabbit caught in the headlights,” he “did not know his left from his right” and was in a state of “sheer terror.” This is indeed entirely plausible. The Court usually sits in the the Royal Courts of Justice in central London. This vast Victorian-Gothic palace of justice, could have been designed – probably was designed – to intimidate, so that you quiver before the magnificence and omnipotence of the law. If you have not been there before the first thing that strikes you is the sheer size and soaring height of the main hall – imagine the nave of a huge cathedral. You then have to find the relevant courtroom, which inevitably involves climbing stone staircases so winding that you quickly lose all sense of direction. Until you know your way about, every route seems to lead back to a dark alcove where a pair of dusty glass cabinets contains an eccentric collection of mannequins striking grotesque poses in historic judicial robes. I have never seen anyone paying the slightest attention to this curiously sinister display; its purpose is simply to increase the atmosphere of menace. Eventually, after much anxious pacing along echoing stone corridors reminiscent of the Narnian castle Cair Pareval (during the reign of the White Witch, not that of the Pevensies), you finally reach your allotted court-room, probably a few minutes late. The court-rooms themselves are certainly not designed to put you at your ease. They are, of course, enormous, panelled with dark oak and shelves of law reports. There are rows of wooden desks and seats, and a strict but unwritten etiquette about who sits where. Needless to say, if you are a litigant in person you inevitably sit in the wrong place and have to be moved. I don’t know whether this happened to Ms Onasanya, but it probably did. Even experienced barristers are nervous, and anyone unfamiliar with speaking in such a court will, I guarantee, suffer from a dry mouth, shaking legs and a horrible feeling that they would rather be anywhere else but here. Of course Ms Onasanya’s career as a politician and time in the House of Commons has accustomed her to speaking in public, but pleading for your good name, your career and your reputation in such a court cannot be easy, especially if your own lawyers have told you that your case is hopeless. Nor will it have helped Ms Onasanya’s nerves that the prosecution were represented by an experienced Queen’s Counsel. Then there are three judges to deal with. I don’t know quite what she was expecting, but Court of Appeal judges tend not to sit back and listen, or at least not all at the same time. They are usually very polite, at first, but they ask questions. Inconvenient questions. They make you deal there and then with points that you hadn’t anticipated. They try to pull your arguments apart, and because they tend to be very clever, very knowledgeable and very skilful at doing so, they often succeed. It is a good way of testing arguments, but it is not a pleasant way to spend the morning when those arguments start to fall apart. It sounds as though Ms Onasanya got this treatment. Her main argument seems to have been that she was innocent and the jury ought to have realised the fact, which is not really good enough. In theory the judges can quash your conviction if they harbour a “lurking doubt” about the safety of your conviction: in practice – I haven’t checked – I think the last time the court admitted to a “lurking doubt” was some time before the Great War. In a way Ms Onasanya was lucky. Had she persisted with her application for leave to appeal after the single judge had rejected it on paper, she would have run the risk of the Court decreeing that some of the time she spent in prison should not count towards her sentence. It is a power the court has shown itself increasingly ready to exercise in recent years in order to further deter hopeless appeals. Fortunately for her, it seems – although I was not there and could be wrong – that Master Beldam had mercifully referred her hopeless application to the full court before the single judge had the opportunity to refuse it. As a result she did not face the indignity of being returned to prison for another week or two. This crumb of comfort is the only positive thing that she can take from what was otherwise another disastrous day in court. The post Fiona Onasanya: what is it like to represent yourself in the Court of Appeal? appeared first on BarristerBlogger. from http://barristerblogger.com/2019/03/06/fiona-onasanya-what-is-it-like-to-represent-yourself-in-the-court-of-appeal/ The Home Secretary has said that he will prevent the return to the UK of Shamina Begum, the Isis bride from Bethnal Green: “My message is clear” he told The Times, “if you have supported terrorist organisations abroad I will not hesitate to prevent your return.” Opinions differ on whether it would be right to allow her to return to Britain. Alan Henning, for example, whose brother John was murdered by ISIS, believes she should “absolutely not” be allowed back into the country. He speaks for many. Others take a more forgiving line, arguing that when she left she was only 15 years old; she has been groomed or brainwashed, and is perhaps not without hope of rehabilitation. Moreover, she now has a new-born baby. Whatever she may have done, her baby is innocent. What, though, is the legal position? Can the Home Secretary “prevent her return”? In normal times we could simply ask the Independent Reviewer of Terrorism Legislation Terror Watchdog – Lord Anderson QC or Max Hill QC were the most recent holders of that office – but the post is currently unfilled, so perhaps a note of confusion has crept into the press coverage. Though I am more lapdog than watchdog, the law is reasonably clear. She is a British citizen. She does not, as far as we know, have dual citizenship with any other country. There are all sorts of complicated varieties of British citizens (Overseas Citizens, overseas territory citizens etc.) who have varying rights to live in Britain, but no-one has ever suggested that Ms Begum was anything other than a full British Citizen with the corresponding “right of abode” in Britain: see Immigration Act 1971 S.2 (1) (a). If she is a British citizen, so is her baby. Can she be stripped of her British citizenship? If it could be done, this would be the simplest way of preventing her return, but it cannot be done. At first glance it seems that it might be possible. S.40 (2) of the Nationality Act 1981 provides: “The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.” Given Ms Begum’s chillingly blasé attitude towards finding severed human heads in the dustbin, her support for a terrorist organisation that has been unparalleled in its brutality, and her apparent lack of any repentance it would be easy to conclude that whatever “the public good” means, depriving Ms Begum of her British citizenship would be conducive to it. As often with the law, however, things are not that simple. S.40 (4) places an important restriction on the Home Secretary’s power to strip someone of their citizenship: “The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.” If her British citizenship were removed, assuming she is not a dual citizen of another country, she will become stateless. S.40 (4) thus prevents Mr Javid depriving her of citizenship. S.40 (4A) of the Act does in fact provide for naturalised citizens to be made stateless where they have conducted themselves “in a manner which is seriously prejudicial to the vital interests of the United Kingdom” but only where: the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory. Ms Begum was born a British citizen, and in any case there are – as far as we know – no grounds for believing that she could become the national “of a country or territory outside the United Kingdom.” Even if the Islamic State still existed as a de facto territory, its legal existence has never been recognised by the UK. In fact, even if she could be stripped of her British citizenship, that would potentially create a new set of problems. Should she manage to reach Britain (and there is no reason to believe that other countries would particularly want to keep her), it would be difficult to refuse her entry, not least because it would be impossible to deport her anywhere else. We would not want her to remain living indefinitely at Heathrow Airport like Tom Hanks in The Terminal, and it is hardly realistic to say that she should be detained as an illegal entrant for the rest of her life. So if she can’t be stripped of her citizenship, can she just come back to Britain? As with many legal questions, the answer is “yes and no.” At present she can come back, but the Home Secretary is not without legal powers to control her return, although not to prevent it altogether. Well, tell us what he can do. Mr Javid could issue a “temporary exclusion order” (“TEO”) under the Counter-Terrorism and Security Act 2015. A TEO is an order preventing a British citizen returning otherwise than in accordance with the conditions of a permit. It was Parliament’s answer to the conundrum of how to deal with British citizens who could not be stripped of their citizenship, but who could nevertheless be dangerous if simply allowed to return and disappear. Although described as a “temporary exclusion order,” and although limited in the first instance to a duration of two years, this period can be extended: so the orders are not necessarily as temporary as they sound. The effect would be that Ms Begum’s passport (should she possess one) would be invalidated. Her citizenship, however, would not be. So if he issues one of these TEOs does that mean he can keep her out, at least for two years? No, a TEO doesn’t necessarily prevent her returning to Britain. However, once a TEO is in force there are only two ways Ms Begum could legally do so. The first is that she could be deported here. At present that seems rather unlikely, there being no functioning government in the part of Syria where she is living. On the other hand, were she (for example) to find herself in neighbouring Turkey or Iraq the authorities might choose to deport her to Britain, and we would then have to accept her. The other, and more likely alternative, would be by Ms Begum herself applying for what is known as a “permit to return.” If Ms Begum were to ask for such a permit, the Act says that the Home Secretary must issue one. Invalidating her passport is pointless then? All she has to do is ask for one of these “permits to return” and she can just come back to Bethnal Green? No, not at all. Once she has applied for a permit, the Home Secretary has to issue one, but he can impose conditions. One of those could be that she presents herself for interrogation by the police before she even sets foot on British soil. If she doesn’t turn up to meet the police he can refuse to issue a permit, or cancel one if already issued. He can also impose conditions on her subsequent behaviour once she is back in the UK. Typically these could include, for example, a requirement to live at a particular address, not to leave a particular area, and to attend regular appointments with the police or other officials. If she fails to comply, she can be arrested and prosecuted. So will he issue a TEO? Very likely. There are a number of conditions which have to be met, the most important of which in this case is that he must “reasonably suspect” that Ms Begum: “… is, or has been, involved in terrorism-related activity outside the United Kingdom.” “Terrorism related activity” is very widely defined in S.14 and can include “conduct that gives encouragement to the commission, preparation or instigation of such acts, or is intended to do so.” The Home Secretary does not need to be sure that Ms Begum has been so involved; he need only have reasonable suspicion. No doubt he has that already. Although there is a degree of judicial scrutiny involved in the issue of a TEO, it is very limited. In an urgent case the Home Secretary can himself issue a TEO his decision is then reviewed by a court. If the case is not so urgent, he must ask a court to issue the order, but it can only refuse to do so, or quash a TEO already made, if the Home Secretary’s decision is “obviously flawed.” As in a judicial review, the issuing or reviewing Court is not allowed to substitute its own view for that of the Home Secretary, it can intervene only if the decision is patently absurd (what lawyers term “Wednesbury unreasonable” after a famous 1948 case involving Wednesbury Corporation), or the decision making process of the Home Secretary has been demonstrably unfair. And just to make doubly sure that a TEO is not improperly refused by a soggy liberal judge, only the Home Secretary is allowed to appeal the court’s decision. The subject of the TEO has no right of appeal. The baby, of course, cannot be made subject to a TEO. It could return to Britain whatever orders are imposed on Ms Begum. Once on British soil it is quite likely that social services would take an interest in its welfare. This TEO thing is all very well, but it’s no substitute for sending her to prison, is it? Surely she should be prosecuted and we should throw away the key? She’s a traitor. There is an array of offences with which Ms Begum could conceivably be charged, although the evidential difficulties of proving most of them are fairly formidable. Some have been calling for her to be prosecuted for treason. This is exceptionally unlikely. If it could be shown that she had actively assisted ISIS members in fighting against British forces, it might be said that she had “traitorously adhered to enemies of the Queen,” part of the particulars in the charges laid against the last man to be tried for treason, William Joyce, better known as the Irish born Nazi propagandist, Lord Haw Haw. Whether such ISIS terrorists fighting an undeclared war would be considered “enemies of the Queen” is one of several imponderables. But there have been no prosecutions for treason since that of Joyce in 1945. Archbold, the criminal lawyers’ “bible” has for the last ten years attenuated its section on treason, asserting that “it is unlikely in the extreme that there will in the foreseeable future be any such prosecutions.” Unless some extraordinary new information comes to light it is surely inconceivable that a teenager who moved to the Islamic State when she was a child will become the first person to be charged with treason since 1945. If it can be proved that Ms Begum had any involvement in the murder or torture of prisoners, then she can be tried in Britain for those offences. What, though, if all she did was to travel to Syria intending to marry and have babies? What if she simply turned a blind eye to the evil surrounding her, or if (which amounts to the same thing) it cannot be proved that she did not do so. Her interview with The Times’s Anthony Loyd – which may of course be rather self-serving – suggests that for much of the time she led a life of dull domesticity. One possible charge then might be that under S.11 of the Terrorism Act 2000, of “membership of a proscribed organisation.” This provides that: “(1) A person commits an offence if he belongs or professes to belong to a proscribed organisation.” There is no doubt that ISIS is a proscribed organisation, and it was so proscribed when she left the UK. Does she “belong or profess to belong” to it by moving to IS controlled territory and marrying an IS fighter? I can see considerable scope for argument. The leading case on S.111 does not give much help on what is meant by “belonging” to a proscribed organisation. It is said to be an ordinary English word, although the “core concept” embraces: “… voluntary and knowing association with others with a view to furthering the aims of the proscribed organisation.” That might cover her behaviour. What would her punishment be for belonging to ISIS? There are sentencing guidelines for belonging to a proscribed organisation. They deem all such organisations as equally “harmful” for sentencing purposes, but divide culpability into three categories: A. Prominent member of organisation B. Active (but not prominent) member of organisation
The sentencing guidelines suggest sentences ranging from 5 – 9 years for Category A, to a high level community order – 4 years imprisonment for Category C. However, the guidelines are applicable only to adults. She went to Syria when she was 15. If applicable at all, the guideline sentences would apply only to her behaviour after her eighteenth birthday. In a different context, a 15 year old girl persuaded to leave home, travel to a war zone and marry an older man would be considered the victim of child sexual exploitation. Indeed, some of those demanding the harshest punishment for Ms Begum are those who have in the past expressed the most vociferous support for “white girls” groomed by “Muslim grooming gangs.” ISIS is itself a particularly nasty and sophisticated grooming gang. Any sentencing judge would have a difficult task in deciding the extent to which her own “grooming” by ISIS amounted to mitigation of any crimes which she might have committed. Many might take the view that despite her four year association with one of the world’s cruellest terrorist organisations, and for all her current apparent indifference to its barbarities, Ms Begum is not beyond hope of rehabilitation. The post Can the Home Secretary prevent Shamina Begum returning to the UK? appeared first on BarristerBlogger. from http://barristerblogger.com/2019/02/17/can-the-home-secretary-prevent-shamina-begum-returning-to-the-uk/ When summing up any case to a jury, one of the first things a judge has to explain is that although it is for the jury to decide the facts of the case, they must follow the judge’s directions of law. A favourite cliché of many is then to say “if I am wrong on the law a higher court will put it right.” “Phew,” the jurors are meant to think, “we can trust that even if this old fool has got the law wrong, no harm will come of it because that ‘higher court’ will make everything right again.” Victor Nealon and Sam Hallam learnt last week from the Supreme Court what they must have guessed already: the promise that a higher court will put wrongful convictions right is hollow. And although there is statutory provision for the state to atone with compensation for subjecting innocent people to wrongful convictions and imprisonment, it is worded in such a way that compensation can virtually never be paid. It is a bogus, Potemkin provision of no practical effect. *** *** *** In the small hours of the morning of August 9th 1996 a young woman, we can call her Ms E, was the victim of an appalling attempted rape as she walked home with a friend from Rackets, a Redditch night-club. Her attacker had followed her out of the club, grabbed her from behind and started to maul her under her blouse. He tried to kiss her. She passed out, but recovered consciousness lying on the ground as the man had his penis out, preparing to rape her. Somehow she fought back, and eventually the attacker ran off. She noticed that her blouse which had previously been buttoned up, was now open. She called the police and was able to give a description of him, the most striking part of which was that he had a “lump” on his forehead. The police sealed the clothing she had been wearing in evidence bags, and set about looking for the attacker. Her friend also described a man in his thirties or forties, with a lump on his forehead, along with small lips and an “evil looking face.” Other witnesses gave similar descriptions of a man who had been in or just outside the night-club, with a lump or prominent mark over his forehead, although the lump was variously described as “like a scratch” or “half the size of a hen’s egg,” and said to be on the left, on the right, above, or more or less in the centre of the forehead. Some of them thought he had other marks on his face as well. About 6 weeks later Mr Nealon was arrested on suspicion of having committed the attempted rape. He was 36. He has the misfortune to have suffered acne in the past, and as a result had what was described as a “distinctive pockmarked face.” In June he had been in a scuffle which led to him getting a lump on his head (although not his forehead). There was no evidence that it was still there by August when Ms E was attacked: in fact there was plenty of evidence that it was not, including from his probation officer who had seen him three times both shortly before and very shortly after the attack and had noticed no lump, prominent or otherwise. But where had he been on August 9th? It’s February 6th today, and if, innocent reader, I locked you up in a police station on suspicion of rape, and asked you where you were on, say, December 18th I doubt that many of you could tell me with much confidence, just as Mr Nealon could not say for sure where he had been on the night of August 8th / 9th 1996. He was sure, though, that he had never been to Rackets, and thought that he was was probably at home with his girlfriend. He offered to give samples for DNA testing. Highly suspicious, thought the police. Here’s a man with a pockmarked face, who once had a lump on his head and who can’t remember for sure what he was doing 6 weeks earlier. Let’s put him on an ID parade. There are extremely strict rules on the conduct of identification procedures, which are meant to ensure (amongst other things) a complete separation of the police officers running the identification procedures from the other investigating officers. The rules are even stricter now than they were in 1996, but they were strict enough then. Nowadays most identification procedures are carried out on video but in 1996 they were still done in the traditional way. A parade of volunteers (“distractors” in the jargon) looking broadly similar to Mr Nealon was assembled, and the various witnesses were asked whether they recognised anyone from the night of 8th/9th August. The results were mixed. Seven witnesses took part (they did not include Ms E who for some reason wasn’t asked to attend the parade). Most of them either picked out someone else or nobody at all. Ms E’s friend, for example, who was looking for an “evil looking face,” passed over Mr Nealon and picked out one of the distractors. Three did pick out Mr Nealon, sort of, as someone they had seen beforehand in or near the club. However, of the three one said he was “uncertain” while another did so not on the parade itself, but when (in breach of all the rules) he saw Mr Nealon with his solicitor after the parade had concluded. Only one of the seven witnesses made an unequivocal identification at the parade; a barmaid who said she had served him in the club. Yet she had had no particular reason to remember him, whoever it was she saw was just another customer: nor had she, when first spoken to, made any mention of a “lump” on the customer’s forehead, the most distinctive thing about the attacker’s appearance, although she did say she recollected this when she came to give evidence in court. Identification evidence has long been recognised as notoriously unreliable. Starting with the case of Adolf Beck over one hundred years ago, there have been numerous cases of misidentification leading to wrongful convictions. Many people erroneously believe that their ability to recognise people is much greater than it really is, and jurors can find such evidence, especially if confidently delivered, simple to understand and very persausive. Unfortunately, the confidence with which identification evidence is delivered is not necessarily correlated with its accuracy. As a result, ever since the case of Turnbull (1976) 63 Cr.App.R. 132, judges have been obliged to warn jurors, amongst other things, that it is possible for a mistaken but honest witness to appear convincing, that a number of witnesses can all be wrong about an identification (as they were in Beck’s case), and that mistakes in identification can easily happen even when people purport to recognise a friend or acquaintance. Judges are meant to withdraw weak and uncorroborated cases from the jury. Nevertheless, the law is clear: as long as juries are properly warned, they are allowed to convict on the strength of identification evidence alone, and – which was no doubt relevant here – they are told that one purported identification witness can support another. This means that a number of individually dubious identifications can sometimes support each other. After his police interview Mr Nealon remembered what he had been doing on the night: he had stayed at home watching videos. Most defence lawyers dislike running alibi defences, because they tend to have the psychological effect of placing a burden of proof on the defendant and the slightest inconsistency tends to be taken as an indication of dishonesty by jurors. So it seems to have been here. There was some inconsistency over exactly which videos were rented out and when, and the upshot was that the jury did not believe him. The dubious identification evidence was now supported by the suspicion of a false alibi and Mr Nealon was duly convicted. The judge imposed a life sentence: undeniably the perpetrator of the crime was a very dangerous man. He ordered that he should serve at least 7 years before being considered for parole. Mr Nealon’s first appeal failed. His principle argument was that the identification evidence was so feeble that the trial judge should, as a matter of law, have dismissed the case at the close of the prosecution evidence. “No,” said the Court of Appeal, the judge was right to leave the decision to the jury. There was, as the Court almost always says when upholding a conviction, “abundant” evidence against Mr Nealon. In most cases that would have been that. You only get one chance at an appeal and once it has been dismissed you cannot appeal again, even with fresh evidence, unless your case is referred by the Criminal Cases Review Commission. After losing his appeal, Mr Nealon tried to interest the CCRC in his case. The police said DNA tests had been done on Ms E’s clothing, but they that they were “inconclusive,” the sort of police-speak weasel-word that, along with “negative results,” or “irrelevant” should encourage defence lawyers to think they are asking the right questions. Let’s look again at the DNA tests, said Mr Nealon. “No point,” said the CCRC. More DNA tests would be simply “speculative.” Finally, after many years behind bars, with no prospect of parole because of his refusal to acknowledge his guilt, Mr Nealon instructed determined solicitors who knew what they were doing. The CCRC were contacted for a third time. Finally, the CCRC made the police release E’s bra and blouse. They were still in their original evidence bags, indicating that they had never been examined at all. The CCRC’s examination revealed no link to Mr Nealon, but DNA from an unknown man in saliva stains on the inside and outsid of the bra and the front of the blouse. The bra had been newly bought on the day before the attack, and tests on the known men who could have come into contact with it – Ms E’s boyfriend, men from the club, police officers and scientific staff who might have inadvertently handled it – all came back negative. Ms E couldn’t remember for sure whether she had bought the blouse from the same shop as she had bought the bra, but it seemed unlikely. It was also probable (though Ms E could not say for sure) that she had bought them on different days, making cross. The obvious inference was that the saliva was likely to have been left on the clothing by her attacker, as he mauled and tried to kiss her just before and after she passed out. At last, with many apologies to Mr Nealon for having rebuffed him for so long, the Criminal Cases Review Commission referred the case back to the Court of Appeal. The prosecution still did not concede the appeal: an attempt was made to pooh-pooh the evidence of the unknown man’s DNA: maybe it wasn’t from the attacker at all, maybe it was from some unidentified man who had packaged the bra and the blouse. Maybe the unidentified man was a complete red herring. Somewhat brazenly they argued that the new DNA evidence wouldn’t have made a hoot of difference to the jury’s verdict, they said. But this time the Court of Appeal disagreed. “… if the jury had heard that in addition to the weaknesses in the identification evidence, it was a real possibility that DNA from a single “unknown male” had been found in some of the key places where the attacker had “mauled” the victim (in particular, the probable saliva stain on the lower right front of Ms E’s blouse and probable saliva stains on the right and left cups of Ms E’s brassiere, as well as other DNA material on the inside and outside of the brassiere) this could well have led to the appellant’s acquittal.” After serving 17 years in prison on evidence now shown to be woefully inadequate, Mr Nealon was free. Surely now, he could look forward to Her Majesty’s government paying him compensation for having wrongly branded him a dangerous rapist, and for having locked him up for 17 years for a crime which he did not commit? After all, it was in the name of Her Majesty that he had been charged, prosecuted and unjustly punished. It was representatives of Her Majesty’s Constabulary who had seemingly bungled the original investigation so that no DNA tests had been carried out. It was representatives of Her Majesty who had opposed his first appeal, helping to ensure that an unsafe conviction was sustained; and to cap it all, it was representatives of Her Majesty who had argued, implausibly, that his conviction was still safe despite the discovery of the unknown man’s saliva on two separate pieces of the victim’s clothing where she had been pawed and mauled by her attacker. It would not give him his lost years back, but presumably the least Her Majesty could now do was to make recompense for the appalling wrong to which he had been subjected? Mr Nealon was discharged from Wakefield Prison – a category A prison for the most dangerous men – and he was given, like any discharged prisoner, £46.00. That was the only recompense Her Majesty’s government was prepared to make for an appalling, bungled investigation, for an unfair trial, for a conviction which ought never to have happened, for a first appeal which failed and for keeping Mr Nealon, a man who should never have been charged, let alone convicted, in one of Britain’s nastiest prisons for over seventeen years. It may not surprise you to learn that the Minister of Justice charged with making the decision on his compensation was Rt Hon Christopher Grayling, and the answer was “no, we won’t give you a penny in compensation. You may be innocent in the eyes of the law, but you can’t prove you didn’t do it, can you?” This sounds extraordinary, and so it is. It is true that Mr Nealon could not prove he had not done it. I could not prove that I had not done it. For that matter I very much doubt that Mr Grayling himself could prove that he had not done it, although of course the chances are very high that he did not. The important difference between us and Mr Nealon is that that unlike him we have not been convicted and locked up for 17 years by the state, after a trial and an appeal which turned out to have been conducted on a demonstrably unfair basis. Exactly the same arguments apply to Mr Hallam, Mr Nealon’s co-appellant, although he was “lucky” enough to have served only 7 years of his life sentence for murder before his conviction was overturned. Coincidentally, he too was the victim of flawed identification evidence, and he too ran an alibi that was apparently discredited at the trial. Evidence obtained long after his conviction showed that his alibi was not flawed as the prosecution had been able to argue at his trial, and just as with Mr Nealon, that evidence should have been available at the trial. The principle that you are presumed to be innocent unless and until you are convicted, after a fair trial, turns out, in practice, to be a different principle altogether: for the purposes of compensation, once you are convicted your conviction is deemed to be correct. You are presumed guilty for the rest of your life, irrespective of whether your trial was fair or unfair. It makes no difference that your conviction has been quashed. It makes no difference that new evidence – which ought to have been obtained by the police before your trial – shows that you are probably innocent. Those acting on behalf of the state may have bungled the investigation, and possibly even bent the rules to get you convicted. None of that is of any consequence. All that matters is whether you can prove that you suffered a “miscarriage of justice:” see Criminal Justice Act 1988 S.133 (1). Even as originally enacted, this was a law that had been denounced by, for example, Professor John Spencer QC (the doyen of criminal law academics) as “monstrous.” Under an amendment to the Criminal Justice Act 1988 (S.133 (1ZA) since you ask) introduced by Theresa May in 2014, a monstrous law was made even worse. The expression “miscarriage of justice” was defined to restrict it to cases where the claimant can prove: “beyond reasonable doubt that [they] did not commit the offence.” This is, of course, the criminal standard of proof, grafted onto what is in essence a civil claim based on unjust treatment at the hands of the state. Nowhere else in English law does a person seeking compensation for a wrong have to prove their case to such a high standard. Nowhere else in Europe sets such an impossibly high bar to compensate those wrongly imprisoned. A characteristically slippery attempt to explain the rationale behind this lamentable provision was given by Theresa May when, as Home Secretary, she introduced it in 2013: “We have … clarified the test for determining eligibility for compensation when someone has been the victim of a miscarriage of justice. … As well as providing greater certainty, the new statutory test will ensure that compensation is paid only to those who are clearly innocent.” There was not the slightest evidence that under the existing statutory scheme compensation was being paid to the guilty: indeed, in the 4 years immediately preceding 2013 compensation payments, averaged one and a half people per year, and no-one suggested that any of them were in fact guilty. Hundreds of people every year had their convictions quashed: hardly any of them were paid compensation. In an amendment tabled by the barristers Lord Pannick and Lady Kennedy, the House of Lords proposed a different test: that a miscarriage of justice should include the situation in which the case against the claimant “is so undermined that no conviction could possibly be based on it.” As they pointed out, none of the victims of the most notorious miscarriage of justice cases that have blighted the criminal justice system over the past decades, the Guildford 4, the Birmingham 6, Sally Clark, Angela Cannings, would have been able to prove their innocence beyond reasonable doubt. Needless to say, though passed by the House of Lords, the Government restored the “beyond reasonable doubt” test in the House of Commons. Nealon and Hallam argued in front of the Supreme Court that this test violated the presumption of innocence set out in Article 6 (2) of the European Convention on Human Rights: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” The requirement to prove their innocence beyond reasonable doubt in order to obtain compensation should, they argued, be declared incompatible with Article 6. Although there was case-law from the European Court of Human Rights that seemed to support this argument, the majority of the Court upheld the Government’s case that the compensation rule was in fact compatible with Article 6; the reasoning is rather complex and at times not easy to follow, but in essence the majority opinion was that the Article 6 presumption of innocence applied only to the criminal trial process itself, not to a claim for compensation for a wrongful conviction brought after the criminal trial was complete. Their last hope of obtaining compensation from the Government will be to take their cases to the European Court of Human Rights, although Mr Nealon, at least, is now intending to sue the police for failing to investigate his case properly. As a strict matter of law it is not easy to criticise the Supreme Court. The wording of Article 6, referring as it does to “a person charged with a criminal offence …” does indeed appear to contemplate the trial process itself, rather than post-acquittal applications for compensation, although (as the Court itself all but acknowledged) the case of Allen v. United Kingdom (2013) 63 EHRR 10 suggests that the ECtHR may take a less restrictive approach. But even if the Supreme Court got the law right (and there were two dissenting judgments), as a matter of policy the situation in which the wrongly convicted find themselves is now a national disgrace. The glib suggestion that “a higher court will put things right” is embarrassing. The higher courts will, very occasionally, quash convictions: but that does not put things right for those who have lost their homes, jobs, families, friends, savings, reputation and health as a result of punishment to which they should never have been subjected. It is still too early to know exactly how Theresa May will be judged by posterity. Along, perhaps, with Brexit, amongst her other legacies are a lie about a cat, a never ending inquiry generated by a moral panic about a non-existent Westminster paedophile ring, a “hostile environment” for immigrants and foreigners, and quite possibly the disintegration of the Conservative Party that so foolishly allowed her to lead it. Not many people have been affected, as Mr Hallam and Mr Nealon have, by her change in the law about compensating the wrongly convicted. Even before 2014 only a handful of people ever received compensation anyway, and the annual total paid out never amounted to more than a few million pounds. Yet the casual trashing of a central and cherished principle of English law, the callousness towards the victims of wrongful convictions, and the sheer calculated petty-minded meanness of S.133 (1ZA) distinguish it as one of the most disgraceful pieces of legislation ever to make it onto the statute book. The post How English Law presumes you guilty, even if your conviction is quashed appeared first on BarristerBlogger. from http://barristerblogger.com/2019/02/06/how-english-law-presumes-you-guilty-even-if-your-conviction-is-quashed/
October - Annual - Corporate Commercial - 978-0-7798-6514-7 - $109
from http://feedproxy.google.com/~r/Newlypublished/~3/gK4YlA4RcKc/ Alternative dispute resolution is a growing area and keeping up with new developments is becoming more and more important. ADR Forum™ newsletter is designed to help you do this. With articles on arbitration, mediation, and negotiation and digests of relevant recent cases, it covers current issues and provides innovative approaches you can put into practice. If you would like more details about this product, or would like to order a copy online, please click here. from http://www.cch.ca/Products/ProductDetail.aspx?WebID=1014&tid=16 |