Damned Lying Statistics, or What passes for Guardian journalism these days?

A couple of weeks ago I was complaining about the Guardian’s propensity for poorly written leading articles and downright misleading headlines.

If anything, things are getting worse.

The culprit this time is Julian Glover, who (if today’s Guardian leader is anything to go by) seems to have taken Mark Twain’s claim that

There are three kinds of lies: lies, damned lies, and statistics.

and adopted it as a professional mantra.

The first sign of trouble is the headlines. Given an uncompromising headline on the front page of the print edition (“Tories in poll lead but losing battle over class”) and an even more strident line on the Guardian’s homepage (“Tories losing battle over class”), the article itself bears the more nuanced “Guardian/ICM poll: Conservatives show vulnerability in class battle“.

At the heart of Glover’s claim is a result from the latest Guardian/ICM poll. Glover writes:

The Conservatives are losing the battle over class, according to a Guardian/ICM poll published today, which shows a third of voters see the Tories as the party of the upper classes.
…
But there are signs that Labour’s attack on Tory toffs is sticking with a substantial minority identifying the party with the upper classes, even though almost no one in Britain admits belonging to this group.

ICM asked 1000 people whether they felt Labour and Conservatives most stands up for people from the upper, middle, or working classes, or for all people equally. It is perfectly correct that the 33% of respondents said that the Conservatives mostly stand up for the upper classes, but 11% of respondents gave the same answer about the Labour party. It is strange that Glover could not spare the words to contextualise his eye catching claim with this perhaps more surprising result.

The most strikingly dishonest part of Glover’s piece, however, is the claim that the Tories are “…losing the battle over class”. ICM did not ask these questions in preceding monthly polls (December, November, October), so neither we, nor Glover, has any way of knowing what effect Labour’s attempts to make class an issue are having. In fact, it may have had either no effect, or a negative effect – the situation may have improved for the Conservatives – and we could not establish this from the data.

One strong point Glover might have raised – but either failed to identify or else simply ignored – is the correlation between intending voting for a party other than the Conservatives, and believing the Tories are for the upper class. 55% of Labour, 47% of Liberal Democrat, and 39% of “other” voters held that view, compared to 33% overall and just 8% among Conservatives. This finding is particularly interesting because there is no such clear division between voters in Labour’s equivalent measure – 34% of Conservative, 37% of Labour, and 34% of Liberal Democrat voters believe Labour most stands up for the working class. If a Labour core vote strategy is to be pursued, this is the kind of result that would reinforce the belief that focusing class can be effective.

There are also detailed findings which should cause Labour some concern. Overall, 30% feel Labour stands up most for the working class, but that figure drops to 23% in Social Class D & E, and 16% of DE respondents felt Labour stands up most strongly for the upper class (compared to 11% overall).

Interestingly, the ICM poll shows that substantially more people see the Tories as standing up for either the middle classes, or everyone equally, than hold that opinion about Labour (58% versus 47%). If previous research is correct in showing an increasing tendency to self-report as middle class, it is this division between the parties – not the question of the upper classes – which could be most significant.

More tellingly, of course, Labour’s share of the vote declined by 2 points in this poll, to just 29%. If this is what happens when – as Julian Glover believes – the Tories are losing the battle on class – one can only wonder what apocalyptic fate awaits the Labour party if the Tories begin to win the argument.

Somebody set us up the bomb, or Making a #TwitterArrest

File this one under “Things not to say on Twitter”.

At 0408 on January 6th, Paul Chambers greeted news that his travel plans were being disrupted by tweeting:

Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky-high!!

The offending tweet...now deleted

Silly? Yes. An over-reaction? Definitely. A criminal offence? Er…

South Yorkshire Police certainly seem to think so. They arrested Chambers under the Terrorism Act on Wednesday, held him for held him seven hours, deleted his tweet, confiscated his laptop and iPhone, then bailed him to appear on 11 February.

Needless to say, the reaction on Twitter has been one of amused disbelief, with the hashtag #TwitterArrest now in use. Blogging reaction has been largely one of disbelief; Dungeekin’s take on the situation on his blog is fairly typical.

Quite what the police could charge Chambers with is unclear. Bomb hoaxes are criminal offences (s.51(2), Criminal Law Act 1977), but the offence is quite specific:

51. Bomb hoaxes.
…
(2) A person who communicates any information which he knows or believes to be false to another person with the intention of inducing in him or any other person a false belief that a bomb or other thing liable to explode or ignite is present in any place or location whatever is guilty of an offence.
(3) For a person to be guilty of an offence under subsection…(2) above it is not necessary for him to have any particular person in mind as the person in whom he intends to induce the belief mentioned in that subsection.

Any charging decision is going to turn on the question of intent. Chambers unquestionably communicated information he knew to be false (that he was going to blow up Robin Hood airport) to others (his Twitter followers, and the world at large), but did he do so with the intention of inducing those people to believe a bomb was going to go off? Even with the paragraph (3) saving, it will be difficult for the police to show that Chambers had that intent.

Chambers own account of the interrogation gives an indication of the thinking behind the arrest:

I had to explain Twitter to them in its entirety because they’d never heard of it…Then they asked all about my home life, and how work was going, and other personal things.
The lead investigator kept asking, “Do you understand why this is happening?” and saying, “It is the world we live in”.

While it’s encouraging that the police seem to have grasped the idea that a bomb hoax might be cry for help by someone going through difficult circumstances, it would be nice if they’d also grasped the idea that a glib comment made on a conversational medium might not be a bomb threat.

This isn’t the first time that UK police and prosecutors have gotten in a tizzy over glib comments on conversational mediums. In 2005, Angela Sceats, a 19 year old Australian student went on trial for making a hoax bomb threat. Her mistake? Sending a text to a friend from a delayed train to Stansted which read:

“…call the police and say there is a bomb on board…”

Unfortunately, the recipient – her flatmate – immediately dialled 999, leading to Sceat’s arrest, a security alert at Stansted, and the cancellation of several flights.

According to the prosecution, Sceat had hoped that the bomb threat would delay a plane she feared she was going to miss. Her flatmate had apparently replied “Serious?”, to which Sceat responded:

Absolutely. Hurry up. Do it from the phone box outside. Put on an accent. Tell there is a man with a gun to your head telling you to make the phone call.

The jury acquitted Sceat – although the Judge then made her pay her own legal costs! – and it’s difficult to see how they could have done otherwise.

Sceat’s 2005 trial took place just weeks after the July 7th bombings in London. If the prosecution couldn’t secure a conviction in that case – with a credible explanation of what the defendant stood to gain by making the threat – at that time, you have wonder what chance they have in 2010.

Several people on Twitter have observed, Chambers’ “offence” seems less serious than the specific death threats posted online by a police officer last year – which did not lead to an arrest (ht @unslugged, among others).

It’s true that however stupid the police reaction has been – and we’ve yet to see if the CPS are in a similarly silly mood – Chambers own conduct is questionable. But that’s not criminal. I can’t put it better than this:

Chambers has now protected his tweets – which seems like a wise move in the circumstances.

UPDATED: The Guardian has now picked up the story, and are reporting that Chambers tweetstream was locked at the time. Not true:

Google Cache from 11 January

I could only pull the graphic higher up because his tweet wasn’t protected, and as the Google cache shows, on 11 January it wasn’t locked – allowing anyone who wanted to to see his tweet. (ht to @piombo on Twitter for pointing out the cached copy)

Flickr the front page! or An Independent breach of copyright?

UPDATED 201001182239: The Independent has apparently seen sense. The British Journal of Photography is reporting that Jimmy Leach told them “…he has apologised to Zabulis ‘for our errors, which were not malicious in intent.’” Peter Zabulis’ invoice for £100 will now be paid, and I’m sure the Independent (and the FCO’s soon-to-be Head of Digital Engagement!) will want to close the book on this. In fairness to both the Indy and Leach, the speed with which they responded does them credit – but the fact it took adverse public comment to make them respond is still regrettable.

ORIGINAL POST:

It’s been a bad time for the Independent recently

Dealing with serious financial problems, up for sale to a Russian oligarch (who’s rumoured to want to turn it into a freesheet), and worst of all under threat of imminent Rod Liddle.

Still, there’s always ways to make things worse – like acquiring a reputation for copyright theft.

It must have seemed like a good idea at the time, especially for a publication needing to watch the pennies: Use the API from online photo-sharing site Flickr to add topical slideshows to your website, at no cost to the paper.

But in what may be a glaring example of RTFM, the Independent apparently failed to filter the resulting slideshow to remove photos which were “All rights reserved”.

The offending slideshow

Flickr user Peter Zabulis was surprised to find one of his photographs featured on the Independent’s website, given he had marked it “All rights reserved”. His profile makes clear he’s a former freelance photographer, and says:

If you would like either a digital copy or an actual print of any of my prints than send me a message, please do not use any of my images without my prior permission.

Curiously, the page he found his photo on no-longer features a Flickr slideshow but here’s what it looked like:

Zabulis duly e-mailed the Independent, pointing out the problem:

I notice you’re using one of my images without any acknowledgement (or permission) on your website, the link is as follows,
http://www.independent.co.uk/news/uk/home-news/snow- in-the-uk-se…
The image is on my Flickr site at the following address and is marked as ©All rights reserved.
http://www.flickr.com/photos/petezab/4243266763/
I’m assuming this is an oversight; I am quite happy for you to use my image but this is, naturally, subject to the appropriate payment rate. I look forward to your response in due course.

It was at this point that what may have been a minor technical mistake (albeit one that exposed the Independent to some cost) was turned into a more serious problem. The Independent responded:

We took a stream from Flickr which is, as you know, a photo-sharing website. The legal assumption, therefore, is that you were not asserting your copyright in that arena. We did not take the photo from Flickr, nor present it as anything other than as it is shown there.
I do no consider, therefore, that any copyright has been breached or any payment due.

By this point, anybody familiar with IP law is wincing (although everyone familiar with corporate-executive digital media types is probably grinning wryly). A couple more messages followed – including Zabulis helpfully quoting a large chunk of the Flickr API Terms of Service – before the Independent finally came back with:

I don’t think there is much I can add. We only included what you had already done and what was publicly available on Flickr and streamed it for less than a day, using the API for its purpose. We didn’t change anything you had done or any notices you had on your photos. No one could access the photos other than through the Flickr site. I am therefore puzzled about what you think we may have done wrong or if anything what your loss or claim would be.

I think it best if we wait to hear from you when you have decided what you feel is your claim and I will consider it and if necessary get legal advice.

On the basis of this, I’m considering writing to the Independent and offering to run refresher courses on copyright…

Zabulis had already made it clear that if he didn’t get a satisfactory response – i.e. payment for the use of his image – by 15 January, he would go public. He gave the Independent a final opportunity to comply (apparently to no response) and then posted the details and the full exchange on his Flickr page.

Sadly for the Independent, it doesn’t look like they’ve a leg to stand on here. The Flickr API’s Terms of Service are perfectly clear on this point:

a. You shall:

1. Comply with any requirements or restrictions imposed on usage of the photos by their respective owners. Remember, Flickr doesn’t own the images – Flickr users do. Although the Flickr APIs can be used to provide you with access to Flickr user photos, neither Flickr’s provision of the Flickr APIs to you nor your use of the Flickr APIs override the photo owners’ requirements and restrictions, which may include “all rights reserved” notices (attached to each photo by default when uploaded to Flickr), Creative Commons licenses or other terms and conditions that may be agreed upon between you and the owners. In ALL cases, you are solely responsible for making use of Flickr photos in compliance with the photo owners’ requirements or restrictions. If you use Flickr photos for a commercial purpose, the photos must be marked with a Creative Commons license that allows for such use, unless otherwise agreed upon between you and the owner. You can read more about this here: http://www.creativecommons.org or http://www.flickr.com/creativecommons.
2. Comply with any other terms and conditions a user has attached to his or her photo. For example, if a user marks a photo as “private” after using your service, your application must reflect those changes as soon as reasonably possible. If your application has any cached copies of photos that have become “private,” you must remove as soon as reasonably possible.

Emphasis added

It’s not as if the Independent could rely on an exception from copyright restrictions – fair dealing (there is no “fair use” in UK law) does not apply to photographs – and they can’t plead that this is not a known issue.

In fairness to the Independent, I know from personal experience of advising on the commercial use of Creative Commons licensed images that people often fail to grasp the concepts involved, but what has made a possible mistake into a problem is the way that they responded – by trying to brazen or bluff out the situation, they’ve now attracted a adverse publicity.

There is a lesson here: picture use fees are cheap. Adverse publicity is free!

And finally, an interesting codicil. According to PeteZab, the response from the Independent was from Jimmy Leach, the Independent’s Editorial Director of Digital. Leach is due to join the Foreign and Commonwealth Office in February as their Head of Digital Engagement. As the FCO helpfully tells us:

His previous roles have included Head of Digital Communications for Prime Ministers Tony Blair and Gordon Brown…

It all starts to become clear…

Charon QC Podcast – featuring me.

Mike Semple Piggot, author of the Charon QC blog and editor of Insite Law Magazine, kindly asked me to take part in this week’s Charon Podcast, a review of the week’s legal news

We talked about the ECtHR decision on s.44, John Hemming MP’s dispute with Withers LLP, Marco Pierre-White’s dispute with Withers LLP, the Chilcott Iraq Inquiry (and its Dutch counterpart), televising trials, and trials without juries.

You can listen to the podcast here.

More Parliamentary Privilege, or What Withers Wanted?

John Hemming, MP for Birmingham Yardley, got his debate.

There’s little new emerged since yesterday’s blog, save for Hemming using Parliamentary Privilege to confirm that Jeremy Knight-Adams is Withers LLP’s client in this matter, and making (or repeating?) claims about the Swan Development and its delays.

The response from other MPs was a little disappointing, with only a couple of Conservative MPs observing that Parliamentary Privilege protected only speech in the chamber (one doing so forcefully and making a party political point about misleading leaflets from the Liberal Democrats).

Unsurprisingly, the motion – referring the matter to the Committee on Standards and Privileges – was passed without dissent.

The debate strongly confirmed my view that John Hemming is in the wrong here, and that Withers’ hand has been forced. That said, Hemming’s comments about and allegations against their client are now in the public domain, and freely reportable.

There is a problem if John Hemming could give an undertaking not to repeat allegations (to avoid a lawsuit), but remain free to repeat them in Parliament without sanction. It does not defeat the purpose of Parliamentary Privilege, but does debase it.

I would love to read the letter which Withers LLP will no doubt be sending to Hemming following today, or better yet eavesdrop on the next telephone call between Withers and their client.

Roll on the Committee hearing!

Parliamentary Privilege, or What’s Whithers Want?

Following Prime Minister’s Questions today, Speaker Bercow made an unusual announcement:

The hon. Member for Birmingham, Yardley (John Hemming) has drawn my attention to an e-mail he received from Withers LLP, a firm of solicitors, which could in his view amount to a contempt of the House by seeking to intimidate a Member in his parliamentary conduct.

I have decided that this is a matter to which I should allow precedence. Therefore, under the rules set out at pages 167 to 168 of “Erskine May”, the hon. Gentleman may table a motion for debate at the commencement of public business tomorrow. It will appear on the Order Paper after any statements and before the topical debate on Afghanistan.

I shall arrange for the text of the e-mail to be published in the Official Report.

All very mysterious, and the best the BBC could do was reprint his statement. We had to wait a while, but the e-mail is now available from Hansard’s ‘Today in the Chamber’.

Apparently, Withers are acting for a landowner who has objected to a compulsory purchase order for a development in Yardley (in Hemming’s constituency). Hemming issued a leaflet locally in which he strongly criticised the delays to the scheme, but did not name the landowner. Withers’ client says the language of the leaflet was defamatory of him.

The relevant bits of Withers letter are as follows:

Sent: Tuesday, August 04, 2009 5:51 PM

…

It is abundantly clear that the offending text referred to, and would have been understood by those reading it to refer to, our client…Even though he was not specifically named, he was clearly identifiable to the thousands of people to whom you distributed your defamatory and maliciously false leaflet.

You were clearly wrong to say that our client purchased his plots with the intention of delaying the Tesco development, as you now admit. Moreover, we do not agree that a landowner objecting to a CPO of his land and who has made very serious alternative proposals for redevelopment can he be guilty of “spoiling tactics” and this defamatory and maliciously false allegation is strongly objected to by our client.

In order to settle this matter we, therefore, require an apology in respect of both the serious allegations plus payment of our client’s costs, a substantial payment to a charity of his choice and an undertaking not to repeat the allegations or any similar allegations, particularly in Parliament.

Your threat to make a statement in the House of Commons referring to our client’s alleged “spoiling tactics” in this and other situations and that our client’s threatened proceedings amount to “bullying and an attempt to gag opponents” is tantamount to blackmail. These allegations are untrue as our client is only trying to put right a serious wrong to his reputation. We note that you would only make these allegations under the cover of parliamentary privilege. My client objects very strongly to you doing this and would ensure, via other sources, that the House of Commons were fully appraised of the true situation and not misled.

Emphasis added

In September 2009 Hemming was forced to issue an apology to landowner Jeremy Knight-Adams over a leaflet which Hemming had sent out regarding a development in his constituency. It’s not clear whether Knight-Adams is also Withers client, and notably the BBC story on Bercow’s announcement does not name the client. Obviously the timing of the letter (4 August) and the apology are suggestive.

Hemming, who appears to be in the wrong and may potentially be liable to pay damages, now has the opportunity to grandstand on questions of parliamentary privilege. Unlike Carter Ruck’s spectacular own goals over the Trafigura fiasco, it does appear that Withers hand was forced by Hemming – but the debate tomorrow risks turning a relatively local problem for their client into a potentially national one.

I think some serious questions need to be asked of Hemming as to why he waited until now to raise this letter – given when it was sent!

More to follow on this, I think!

The legality of stop and search

UPDATE: 20100112-1700

• Henry Porter in the Guardian takes a similar view on the case, and points out the Government’s attempts to ignore the earlier ruling on DNA sample retention (S & Marper v UK). Coincidentally, the Guardian also reports that Kent Police intend to admit unlawful stops and search (under a different piece of legislation, PACE s.1) were conducted during protests at the Kingsnorth power station in 2008.
• Here’s a disappointing blog from Douglas Carswell, who evidently finds it difficult to reconcile his desire to cut UK ties with international institutions with the total lack of backbone his colleagues displayed on this issue when the Terrorism Bill.
• The independent reviewer of terrorism legislation, Lord Carlile, who has a good record on this issue, thinks the ruling will mean a change in the law is needed.

In a long awaited decision, the European Court of Human Rights ruled today that anti-terrorist powers to stop and search violate the European Convention on Human Rights (Read the Court’s press release for a summary. Full judgement available from HUDOC).

Most embarrassingly for the UK Government, the Court held that the stop and search power fell down because it breached that most fundamental principle of English law – the Rule of Law.

Much will be written about this, both by the press and academics (probably including some of my former tutors!) but here are some initial thoughts.

Facts

The case arose from stops and searches of Kevin Gillan and Pennie Quinton at a demonstration outside an arms fair in London’s Docklands in 2003. Gillan was a protestor; Quinton was a photo-journalist.

The power used to stop and search them is based in the Terrorism Act 2000, s.44 of which allows a senior police officer to temporarily authorise stops and search within a defined area. These stops differ from normal stops and searches under the Police and Criminal Evidence Act 1984 (PACE) in that they do not require “reasonable suspicion”. It is effectively and essentially a power to conduct random searches.

Whilst the s.44 authorisation is supposed to be temporary (up to 28 days), and limited to a defined area, the entire Metropolitan Police area had been covered, and the power had been continuously renewed (and continues to be). Many other police forces behave in the same way.

Gillan and Quinton pursued a case before the English courts, with the House of Lords finally ruling against them in 2006 (full judgement here).

[This article (PDF) by Parishil Patel of 39 Essex Street provides a useful reminder of the legal position when this case came before the House of Lords.]

They then took their case to the European Court of Human Rights, claiming violations of four articles of the European Convention on Human Rights: Articles 5 (right to liberty), 8 (right to respect for private life), 10 (right to freedom of expression), and 11 (right to free association).

Reasoning

The Court found a violation of Article 8, and in line with its usual procedure did not proceed to consider the other potential violations. However, it gave a strong indication that it believed there had been a breach of Article 5.

The breach of Article 8 arose from the fact that the stop and search was a clear interference with the privacy of the person searched. and this was not “in accordance with law”. This did not simply mean (as the UK Government argued) that the power to stop and search was authorised by domestic law. To be “in accordance with law”, the power had to accord with the Rule of Law. It could not be unfettered, and sufficient safeguards had to existed to ensure it was properly applied.

Statistical evidence on the number of stops taking place was considered. Taking account of the extremely broad use of the power, and its effective permanence, the Court held that sufficient safeguards did not exist, and that as such the s.44 power was contrary to the Rule of Law.

The Court did not consider the breach of Article 8 was particularly serious, and awarded no damages (the decision itself was sufficient remedy). c.€35,000 were awarded for legal costs.

Comment

The case is a serious slap in the face for the UK Government’s counter-terrorism strategy (which has heavily focused on extending police powers and powers of detention). It comes on top of the UK’s own courts ruling against the control orders regime and expressing grave concerns about SIAC’s procedures.

By not ruling on the question of Article 5, 10, and 11 violations the Court leaves open the possibility of further breaches of the Convention in due course. Measures to bring the s.44 powers into compliance with Article 8 will still fall to be tested for compliance with the other bases argued by Gillan and Quinton. The Court’s strong indication that Article 5 was being breached suggests that stop and search will now be held to breach Article 5, unless properly justified.

The reasoning is also a riposte to the House of Lords, and in particular Lords Bingham, Hope and Brown. They appeared to doubt that stop and search could breach Article 8, and they have been told in no uncertain terms that it will, subject only to such breaches being justified in limited circumstances.

Given developments in House of Lords jurisprudence since their ruling in this case in 2006, it is likely that a different view would be taken if the matter came before the UK Supreme Court (which has now replaced the House of Lords’ judicial functions). This may have implications for the last major decision on the substance of control orders (as opposed to the procedure for implementing them).

The case also offers clear political opportunities – Labour has rather lashed its colours to the mast on anti-terrorist policy, leaving both Conservatives and Liberal Democrats the opportunity to welcome this decision (it is worth remembering that the Labour party reversed previous opposition to the renewal of the old Prevention of Terrorism Act in 1996, prior to its election in 1997).

Film Review: Avatar

Mark Kermode christened the film “Smurf-ahontas”. The name is well chosen, and if you liked that particular Disney film you will also like this. If you enjoyed Ferngully (which appears to have been a major, if not the primary, inspiration for the film’s plot) then you will love it.

I didn’t.

My main question is this: where is the $230 million apparently spent making this film? It certainly wasn’t on the screen, where I saw a middle of the road family movie using one or two interesting ideas to tell a pedestrian (and frankly old-fashioned) story using good computer graphics.

Perhaps I simply come a different generation to James Cameron (and those critics who have lauded this film as some kind of game changer), but I’m failing to see how what I saw at the cinema is anything more than a normal evolutionary step in the use of computer graphics. If you’d shown me this footage as on-the-fly rendered output I would have been blown away. If I’d seen it as cut-scene imagery in a console game I would have been impressed. As it was, I was left wondering what the fuss has been about.

As for the “3D” about which so much has been talked, I found it only really effective (query whether it was only properly present) in the non-CG sequences. In the CG segments, 3D seemed to be limited to jabbing things out of the screen (Mark Kermode’s “pointy-pointy” syndrome) and occasional drifting objects. An early scene aboard the inter-stellar transport in which Sully is being wakened from cryo-sleep was very impressive, creating a noticeable feeling of vertigo as the camera looked down/up/across a zero gravity bay lined on all faces with cryo-sleep chambers. There was nothing remotely as immersive in any of the subsequent sequences, although one or two of the scenes with floating ash or embers were interesting.

Some of the acting is good; Stephen Lang (in excellent, scenery-fragging form as the film’s big bad, Col. Quaritch) and Michelle Rodriguez both stand out, but the latter is badly wasted. Others were not so good – ironically, Sigourney Weaver seemed to have delivered her performance by tele-presence – and some were down right dreadful. Giovanni Ribisi, an actor I’ve always liked, seemed to be in a permanent half-daze as the mining company’s local chief executive.

As for the putative leads, Sam Worthington and Zoe Saldana, it’s difficult to know what of the characters seen on screen is them and what is not. If Worthington’s performance in the non-CG segments is anything to go by, most of the emotion and expression their characters showed in the CG sequences must have required significant help from the computer graphics team.

Midway through the film, I found myself puzzling over the evolutionary process that the film’s various creatures have gone through [Most of the life in the film has six legs, not four, yet the Na'avi have four (two arms, two legs). Moreover, most of the "lower" animals on display show bilaterally symmetrical tendrils which can be used by the Na'avi to "link" with then, but the Na'avi's corresponding organ is a single tendral running down their backs. The Na'avi are also the only creatures we see which appear to have hair, on their heads and the tips of their tails] and as a general rule, when you find yourself picking apart a fictional biosphere you are not immersed in or engaged by the film’s story.

Suspension of disbelief is, after all, a vital element in film-making. Speculative fiction often demands that little extra from its audience in this regard. Ironically, leaving biology aside, I found myself unable to believe Avatar because its vision of the future was so laughably and demonstrably pedestrian.

The film’s central MacGuffin – the titular Avatar – is a case in point. Cameron’s much vaunted “vision” is of a biological waldo glove. It seems like the choice of a man who does not know his science, never mind his science fiction.

[Anyone who has read Richard Morgan's Takeshi Kovacs novels will be left wondering why on earth such an old fashioned approach was taken. We can only hope that this film, with its poverty of ideas, does not harm the prospects for film adaptations of Morgan's novels.]

We are never told how the avatars are linked back to the very-contemporary looking brain scanners in which their operators are contained, but some form of quantum entanglement is the only way in which the films other plot devices (an area of strong EM flux which disrupts electronics, instantaneous high bandwidth communication between operator and avatar, etc.) could be accommodated. The use of quantum entanglement, let alone the reusable and apparently inexhaustible use of QE which the film assumes, would pre-suppose major developments in other areas of technology (such as quantum computing, scanning technology, and materials science) none of which are seen.

The rest of the technology is distinctly old fashioned. Aircraft come from the 1990s drawing board, while the spacecraft include a SSTO space shuttle that owes much to Boeing’s X-48 and an inter-stellar transport that looks like a derivative of the Antares from Defying Gravity. Battles are fought using machine guns and missiles, with power-suit mechs (refugees from Cameron’s 1986 film ‘Aliens’) the only minimally futuristic weapon on display. Where were the directed energy weapons (shortly to enter service with the US military), EM railguns (in late stage R&D), or any of the extensive repetoire of non-lethal weaponry already in wide use?

And where the hell were the drones?

We, today, live in a world where an ongoing low intensity war is being fought between semi-autonomous and remotely operated aerial drones and Islamic terrorists. We are asked to believe that in 140 years science will advance to the point at which we can grow mindless human-alien hybrids which can be remotely operated, but we will unable to field anything as tactically useful as a Reaper UCAV.

A ridiculous (if pivotal) sequence in the film where a massive SSTO space shuttle is used as a low level bomber is a pathetically painful attempt to draw a parallel with the US military’s use of MOABs and “daisy-cutters” in recent conflicts. Let’s not even touch on the degree to which the tactics employed in the film were absurd.

[Two words: Orbital. Bombardment.]

Essays could be written about the narrative and factual holes in that one sequence alone, but it was about par for the course with the film’s general surfeit of “message”. That “message” is delivered with a superficiality that makes it about as interesting as the theology of the right wing evangelical conservatives it seems aimed at.

My lowest moment was not dreadful dialogue (of which there’s a great deal) or a gaping flaw in the world created for the film, or even bad acting. It was an absence. It was the moment when I realised that Cameron, having rendered a modern version of Robert Duvall’s ‘Ride of the Valkyries’/”…smell of napalm in the morning” sequence from Apocalypse Now, was either failing to realise this, or refusing to so much as wink at the fact.

Worst of all, appreciating that congruity, indeed celebrating it, would be entirely in character for Col. Quaritch, so failing to acknowledge it jarred horribly – and spoke to a serious and fundamental failing of either humour or cinematic literacy on the part of the director (who, let it be noted, was also responsible for the score).

In summary, Avatar is by no means a great film. It would be a perfectly reasonable one had cost tens of millions of dollars, and was been touted as this year’s summer blockbuster. However, it cost $230 million dollars, and is touted as a quantum leap in film making, and by that measure it is a dreadful film.

Given that the only two interesting characters in the film are killed towards the end, I despair of the idea that there is to be a sequel – unless it involves 30 minutes of gorgeously rendered 3D orbital sequences, while the Na’avi are all but eradicated with mass-drivers, followed by 60 minutes of bleak, post-apocalyptic scenes as the few remaining 8ft high smurfs make their way through a desolate landscape towards no particular destination.

On second thoughts, I shall just watch 2001 and The Road back to back.

This super-tax has failed, or Call this reporting, Guardian?

Treanor's piece is the Guardian's lead story

It seems that Alistair Darling’s super tax on bank bonuses may not be having quite the effect desired.

The super tax was meant to drive restraint by banks, but the Guardian reports today that it is making little difference to the size of bank bonus pots.

Ironically, despite failing in its stated objective, this means that the super tax is a success as a fiscal measure: it will raise c.£2Bn, rather than the £0.55Bn originally projected.

Or will it?

I’ve been reading the Guardian for twenty-odd years, and I can forgive it most things. Even Toynbee. But sometimes I really wonder what the hell is going on with it.

The article, by Guardian Deputy City Editor, Jill Treanor, is a dreadful piece of journalism. Described as an “Exclusive”, and splashed across the front page, there is little of substance in it, and less that is new.

We are told that banks are “…expected…” to pay out £40Bn in bonuses and salaries, but it is not clear who expects this or why. Next we are told that unnamed “…City sources…” believe some of the banks will absorb the super tax themselves, but given no indication of the provenance of those sources, or why we should believe them.

An entire paragraph is devoted to a lengthy quote from a Liberal Democrat spokesman, offering us the delightful soundbite, “…global greed by banks when global governance has failed…” and then says:

These last few investment banks left standing have state-backed licences to print money so they must pay supertax on their superprofits, not hold taxpayers to ransom.

I suspect Lord Oakeshot hasn’t quite gotten the idea. Yes – they must pay a super tax. That’s the point. It’s an article about them having to pay it!

Was Vince Cable not available?

Next we’re told that “…bankers are hoping their payments will not be reduced because of the 50% tax on bonuses…” (and in other news, turkeys are voting against Christmas) before Treanor finally bothers to try to justify her salary with some facts.

Unfortunately, her facts are American. They relate to Goldman Sachs, JP Morgan, and Morgan Stanley. The best she can do to tie this back to the UK is to observe that these banks’

…bonus policies will be watched closely by their European rivals, particularly Royal Bank of Scotland…which has a large investment banking business and must have its bonus payments approved by the government.

After all of that, it turns out that Treanor has written, and the Guardian has published, a front page article about American bank bonuses – and that whilst RBS might like to pay similar bonuses, it will need the Government’s sanction to do so.

Just to put the icing on the cake, the penultimate paragraph reads as follows:

The figures that the banks report as “compensation” include a number of costs including salary and benefits which are paid throughout the year, as well as the one-off cost of bonuses.

Translation: That enormous £40Bn number I stuck in my headline? Er…that’s not actually real, ‘cos some of it is really salary, health insurance, gym memberships, etc. etc.

This is a front page piece, on a major broadsheet newspaper, written by their Deputy City Editor. On the evidence, she should be writing for the Sun.

Harriet Harman’s Fine, or Does this look right?

(Obvious disclaimer: This is not legal advice. This is a personal opinion. If you are accused of a road traffic offence, you should seek independent legal advice from a qualified professional. Go here to find a solicitor.)

Harriet Harman’s troubled relationship with road traffic law continues, with a guilty plea to a charge of driving without due care and attention.

In 2003, she was banned from driving for 7 days and fined £400 for driving at 99mph on the M4. At the time, she was Solicitor General – deputy chief legal advisor to the Government.

In 2007, she received a £60 fixed penalty notice for driving at 50mph in a 40mph zone – specifically a temporary speed limit for roadworks on the A14. Harman failed to pay the fine for five months (the normal deadline is 28 days), was summonsed to appear before Ipswich Magistrates Court, and only paid the fine on the morning of the hearing. Despite this, the CPS chose to drop the case – leaving her with the fine and 6 penalty points.

Her latest charges arose from an accident on 3 July 2009. Manoeuvring out from between two parked cars whilst making a constituency visit, Harman hit one of them. Witnesses claimed at the time – and the prosecutor said in Court – that she was talking on her mobile phone at the time.

A police investigation followed, in large part because Harman left the scene, allegedly telling witnesses:

“I’m Harriet Harman – you know where you can get hold of me.”

The CPS did not pursue charges of leaving the scene of an accident without exchanging particulars or failing to report an accident to the police, but decided there was sufficient evidence to charge driving without due care and attention, and driving while using a mobile phone.

When the case came to court, the charge of driving while using a mobile phone was dropped, and Harman pled guilty to driving without due care and attention. She was fined (£350) and given 3 penalty points.

Which to me seems a bit lenient.

Not because the Magistrates should have made an example of her, mind you. There’ll be plenty of people keen to see a prominent Labour MP and minister up in front of the bench. There will also, unfortunately, be plenty who are pleased to see a prominent female politician – especially one who is currently Minister for Women and Equality – pulled down a little.

No, my opinion that it looks lenient is a professional one – as a solicitor, I would have expected a more severe penalty to be imposed in the reported circumstances.

All you need to do to understand why is to consider the sentencing guidelines.

When calculating fines, the Sentencing Guidelines use “Bands”, which differ from the “Levels” set out in statute. Levels set absolute maximum fines, whilst Bands fix ranges within which particular sentences should fall. There are three Bands – A to C – which correspond to different rungs of seriousness within each offence.

The lowest rung for driving without due care and attention is based on a “Momentary lapse of concentration or misjudgement at low speed”, and the middle rung is “Loss of control due to speed, mishandling or insufficient attention to road conditions, or carelessly turning right across on-coming traffic”. The Top rung of “Overtaking manoeuvre at speed resulting in collision of vehicles, or driving bordering on the dangerous” is clearly inapplicable here, but given the fact that Harriet Harman was apparently talking on a mobile phone at the time, the middle rung (“Loss of control due to…insufficent attention to road conditions”) might apply.

As fines as meant to be proportionate to an offender’s means (so that a wealthy individual receives a proportionately greater fine than someone with little or no income), each Band is expressed in terms of a percentage of the offender’s weekly income after tax and NI. A “Monetary lapse…” would result in a Band A fine (25-75% of weekly income), whilst “Loss of control due to…insufficient attention to road conditions” would result in a Band B fine (75% to 125% of weekly income).

Having identified the applicable Band, the magistrate has then to consider any factors which increase or decrease culpability, or increase the harm done by the offence, and reflect these in the sentence. The Sentencing guidelines specifically identify “Carrying out other tasks whilst driving” (e.g. conducting a conversation on a mobile phone, as alleged by the prosecutor to the court) as a factor increasing culpability for this offence. In addition, previous relevant convictions are factors for all offences, and as noted above, Harman has a previous conviction in 2003 for speeding (penalty notices, such as the one she received in 2007, aren’t relevant).

At this stage, the magistrate has to take account of offender mitigation. This can include things like remorse, and early admissions of guilt (for example at a police interview). It’s not clear whether there was any offender mitigation in this case, and it is difficult to see how there could be any – given that in November, when the CPS announced there was sufficent evidence to prosecute, Harman’s spokeswoman said that the minister:

“…strongly refutes the allegations and will deny the charges.”

Only once offender mitigation has been consider should a discount for a guilty plea be applied. Again, it is relevant that in November Harman was apparently denying the charges. The maximum reduction of one-third should only be applied where the offender indicated a willingness to plead guilty at the first reasonable opportunity. Pleading guilty once a trial date is set attracts a discount of just one-quarter, whilst a guilty plea “at the door of the court” should attract a discount of only one-tenth. There was no indication last night that Harman was planning to plead guilty, although an indication to that effect might already have been made to the CPS.

Working through this calculation, the leniency of the penalty become clear. Harman appears  to have received a fine lower than the starting point (50% of weekly income), even assuming full credit reduction for a guilty plea (one-third).

Put it another way: Assuming Harman earns a notional £125,000 a year (probably somewhat low), she has a weekly income after tax and NI of at least £1,500. Based on the Band A starting point of 50% of weekly income, and a full credit reduction for a guilty plea of one-third, this indicates a fine of £500 – some 30% more than was actually imposed.

It’s possible that the 2003 conviction was not treated as relevant due to its age. It is even possible that a reduction in culpability was applied on the basis of the low speed of the accident, but it would seem curious to apply such a reduction at the same time as discounting the alleged mobile phone use. The £350 fine imposed strongly suggests no uplift for that or her previous conviction for speeding.

In summary, a £350 fine and 3 penalty points appears significantly more lenient than might be expected – not because she’s a politician, or because she’s minister, or because she’s a she, but simply on the basis of the Sentencing Guidelines for the offence she admitted.

It would be interesting to know the full reasoning behind the sentencing decision in this case, if only to dispel the appearance of leniency.