Archive for the ‘Legal’ Category

End of the Baby P trial so on to the appeal on some fascinating grounds

This seems to have been one of the most widely discussed trials around the world to date and it seems certain that the discussion has a ways to go with an appeal seeming quite likely if not yet certain.

The grounds for the appeal seem to be coming from two basic angles namely that the child’s evidence was unreliable because she was so young and that the defendant didn’t get a fair trial because of all the discussion that’s been going on by way of the Internet around the world and particularly because said discussion could hardly be missed in the UK by the jurors. I’m calling him “the defendant” to avoid legal issues but if you want to know his name, it takes a few seconds to find it courtesy of google as he’s named on loads of non-UK sites.

The “fair trial” argument will likely hinge on article 6 of the Human Rights Convention of which entitles everyone to a “fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. The problem being that had the jurors seen some of the discussion knocking around the Internet over the last few months then it would be quite possible that they would not meet the requirement that they be impartial. That’s a particular problem in the British court system as it starts from the premise that the jurors know nothing about the case that they are concerned with other than the information which they acquire in the course of the trial itself. Were the appeal for this case to be upheld for this reason it seems certain that the presumption of ignorance would need to be changed; doing so wouldn’t mean jail time for this defendant but would at least sort out what is becoming a serious problem for high profile cases that will come up in the years to come.

The age of the child is an interesting argument from a psychological perspective. Can a 4 year old be relied on to accurately recount events that occurred when they were 2? Early childhood memories are quite a big issue in psychology and it’s very, very difficult to avoid implanting memories in young children of events that just didn’t happen. At the trivial level this can be as simple as asking leading questions rather than open questions but even open questions need to be carefully phrased with young children. It is fortunate that her recollection came from a time when she could speak as few people can recall anything before that and little in any detail. Quite why that should be so is something of a mystery but suggests that memory is either dependent on speech or requires developments in the brain that happen to coincide with occur at the same time as speech development. Actually implanting false memories was one of the assignments set by a Yale psychology course so it’s surprisingly easy to do even for those of university age never mind young children.

Although this is one guy who needs the key thrown away, if his appeal does succeed on the article 6 grounds, let’s hope that the British legal system learns from the experience and abandons the presumption of ignorance on the part of the jury. Should it succeed on the grounds of the competence of a child to testify then that’s potentially a very serious problem for any children in similar circumstances in the future.

Copyright © 2004-2014 by Foreign Perspectives. All rights reserved.

Just how free is freedom of expression?

Freedom of expression is one of those things that we kind of just assume we have in western societies but in reality there are generally limits to it.

For example, the issue of Madeline McCann is freely spoken about in Portugal yet in the UK a range of comments are censored. Joana on her own blogspot blog clearly is none too impressed about the British media on this one. After all, in Portugal the law states that

  1. Everyone shall possess the right to freely express and publicise his thoughts in words, images or by any other means, as well as the right to inform others, inform himself and be informed without hindrance or discrimination.
  2. Exercise of the said rights shall not be hindered or limited by any type or form of censorship.

Seems clear, doesn’t it? Well, the problem is that what that particular law doesn’t allow for is how individual publishers operate. After all, it is up to the publisher to decide whether or not to publish stuff on their site. What that law is saying that anyone can publish anything; it doesn’t say that an individual publisher is required to publish everything. After all, Joana moderates comments on her site: is that not the very same censorship that she accuses the British media of?

In America, the first amendment is similarly clear on freedom of expression in that it states

  • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

However, that’s been modified somewhat over the centuries and notably does NOT apply to commercial speech so, for example, it doesn’t allow all and sundry to send out junk mail to everyone. Having said that, the freedom of expression is taken very seriously and other laws and administrative procedures have had to change to allow for us, for example, full details of ongoing trials are published as they happen.

In theory Europe as a whole has a similar freedom of expression courtesy of the Human Rights Convention which states in Article 10:

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

In many respects this is an updating of the American first amendment, or at least the freedom of expression bits are. As always, lawmakers tack on seemingly unrelated clauses thus whilst we would see freedom of religion as being separate from freedom of expression, clearly in the 1700s the Americans didn’t. Likewise, the business about not restricting the licensing of broadcasting enterprises isn’t altogether appropriate these days with the likes of Youtube.

Interestingly though the second paragraph in clarifying this freedom does not list the prohibition of publication of current court proceedings as being one of those things that isn’t allowed as this does not appear to affect the “authority and impartiality” of the judiciary as shown by the American example. However, yet again that doesn’t mean that publishers are required to publish everything that comes their way, merely that they are allowed to do so if they wish to.

So where does that place our freedom of expression in the UK? Well, the Human Rights Convention is enacted in UK law. So, the publisher would be permitted to publish those comments of Joana but would not be required to do so. However, it does suggest that the action in taking down our own sites last week was NOT legal as our right of freedom of expression as per Article 10 of the Human Rights Convention would override the reporting restriction ie the contempt of court action was itself illegal.

Copyright © 2004-2014 by Foreign Perspectives. All rights reserved.

Just how much information are you leaving behind when you visit a website?

Although our sites collect a whole bunch of statistics about the people who drop by, most of the time we pay next to no attention to it other than keeping a vague eye on what’s most popular.

However, in light of our recent contempt of court action we’ve been a little more paranoid about things and were wondering if the hits from Manchester were a prelude to something similar in the same way as all the hits from London turned out to be. So we thought we’d do a little digging…

First off, the Feedjit widget showed up the series of hits from Manchester using a variety of searches but all related to the topic of the above court action. Was that a fan or something else?

Next step was to look at our StatCounter records for one of those searches.We picked a recent one from Feedjit so it was towards the top of the searches recorded. One click on the drill-down icon which brings up the IP address, their ISP, that they’d made 127 visits to our site amounting to over 2 hours of viewing.

Popping the IP address into one of the reverse IP lookup sites which gave us the specific entry for their server. In this case it turned out to be someone’s Sky router so ’tis unlikely to be related to the court action.

Now, whilst we can’t track down the actual physical address of our fan, it is more than enough information to allow that person to be found by the authorities which is probably worth bearing mind….

Copyright © 2004-2014 by Foreign Perspectives. All rights reserved.

Is trying to keep jurors in the dark about information from outside the courtroom still a viable option?

Whilst we all diplore the blatent censorship of the Internet by the Chinese authorities, it would appear that the UK legal system wishes that it could do exactly the same thing in order to properly implement its practice of “reporting restrictions”.

In fact, it has already had such a system of censorship in effect back in 2006 when the New York Times felt it prudent to follow the reporting restrictions issued for a trial then underway. Thus, everywhere else in the world except in the UK the article in question could be read. Or, at least that was the intention. As always on the Internet there are ways around such things and accessing the site through an online proxy let anyone in the UK read the article.

At any one time there are a number of cases affected by these reporting restrictions which are intended to avoid the publication of information which could prejudice the outcome of the trial in question or to protect the names of the people involved in the trial. In addition to specific reporting restrictions there are more general restrictions regarding, for example, reporting of the names of children. These practices date back centuries and clearly a hundred or more years ago stopping the publication of information in the various newspapers of the time was quite effective in ensuring that the jurors did not have access to information about the case outside the courtroom. However, things have moved on somewhat in the intervening centuries.

Up to 10 or 15 years ago one could easily read information about the higher profile cases in foreign newspapers even when reporting on them had been banned by the UK legal system although notably the New York Times did not distribute the issue of the paper noted above in the UK. However, as Steven Bates pointed out back in 1995 the only truly effective way of implementing them would be to unhook the UK from the Internet. Worryingly, as China has shown this is now a potentially viable option but one hopes that it will never be considered as such by the UK.

Although there are presumably instances of even the smallest trial being reported on over the Internet the effect is most noticeable with high profile cases. The snag with those is that often the opinions expressed are very highly charged and thus potentially very prejudicial to the outcome of a trial were jurors to have come across some of them. At least two trials have already come to grief courtesy of independent Internet research by jurors and no doubt there will be more whilst the current “jurors must be ignorant” approach remains in place.

However, although the Internet has brought to prominance the possibility of jurors researching a case themselves in fact they have been able to do that for a considerable period of time already. Libraries contain exactly the kind of background information in the form of archived newspapers that the courts would wish banned from the Internet once a court issues a reporting restriction order. The snag is that the Internet has a much higher profile than the libraries ever did and is, of course, much more accessible. Combine that with the fact that even deleted articles are available courtesy of googles caching and you have the problem that once anything is published, it stays published.

But, there is no reason why that presumption of the ignorance of jurors should be retained. After all, the American legal system seems to operate quite well without it. Granted it will require changes in the British legal system to allow the dropping of this mechanism of reporting restrictions but surely the increased public visibility of the operation of the courts that would follow can only be a good thing?

One suspects that it will be quite some time before the British courts go so far as those in Arizona and permit the jurors to ask questions but it seems high time that they accepted that jurors are likely to have seen something about the case before the trial and allow for that.

Copyright © 2004-2014 by Foreign Perspectives. All rights reserved.

Just who is “the media” these days? Legally it DOES include bloggers or at least those based in the UK

There’s been an ongoing debate for a number of years now as to whether or not bloggers are the same as journalists some of the time, all of the time, or never but thanks to moves from an unexpected quarter that debate is starting to become a moot point.

In fact, myself and particularly Wendy have been legally declared as being the equivalent of journalists by none other than the Old Bailey in London when they issued a missive to us in connection with a contempt of court action regarding a reporting restriction on a current court case. I’m not naming the case in question here because it isn’t relevant to the current discussion and would merely detract from this discussion.

It is interesting though that prior to that particular missive it would not have been possible for us to obtain details of any court reporting restrictions because we did not qualify as journalists and therefore couldn’t obtain these from the courts as our colleagues over at journalism.co.uk discovered when they tried getting similar information themselves last December. Thus there was the ludricuous situation where we could be held in contempt because of a ruling that we were unable to discover (and, no, they aren’t on the court website).

As it’s the weekend, we can’t try out our new categorisation but hope to give it a spin in the coming week.

One consequence of this change in categorisation is that we felt it necessary to begin publishing our blogs in America and thereby gain some protection of our right to free speech. This isn’t because we felt that we should be able to continue “publishing” the information that was felt to be in contempt of court because now that we are aware that there is a “reporting restriction” and that it applies to us, we’re content to leave that information off the blog until it is legally acceptable to publish it. However, we were sadly disappointed in the attitude of our former UK ISP who took down ALL of our sites when only one comment on one post on one blog apparently triggered the contempt action; our American based registrar supported our freedom of speech. So, as we would like to retain the freedom to express our opinions we have moved the blogs outside the jurisdiction of the English authorities.

Incidently, I have delibrately omitted any links from outside articles from this post to avoid legal issues that were raised by a specific case but are really not relevant to the discussion here. Regretably, it would appear that all of the references which I can dig up on this one refer to that particular case.

Copyright © 2004-2014 by Foreign Perspectives. All rights reserved.
Archives