Monthly Archives: July 2010
Mansfield approaches the matter from the point of view of the Israeli/Palestinian conflict, but this is a blinkered and mistaken approach. While the attempts to arrest Tzipi Livni may be the proximate cause of these proposals, the political motivation is undeniably broader.
This is really about sparing the blushes of the government of the day by protecting representatives and former representatives of friendly governments. Similar legal issues could and would arise around Dutch (Srebenica), French (Rwanda), and Russian (Chechnya and Georgia, particularly) politicians. As the views of Philip Alston (UN Special Rapporteur on extrajudicial, summary or arbitrary executions) make clear, US military and political leaders – from President Obama and former Presidents Bush and Clinton down – could be exposed to liability in connection with the use of targeted strikes, notably by drone aircraft.
(Relatedly, here’s the guest post I wrote about drone warfare for FACT’s MyWar blog, which briefly considered those issues.)
While I disagree with Rozenberg’s conclusion, I’ve much more time for his argument than that of Mansfield. That said, he relies on some questionable assumptions about guidelines which have yet to be written, and expressly allows the will of the government of the day (as embodied by the Attorney General) as a reason for an arrest warrant being denied. The latter issue is particularly worrying – he argues the DPP should, in considering whether a prosecution could be successful, be allowed to consider whether the Attorney General would give his consent to one being commenced.
Why should the AG’s possible future conduct be considered in this way at the arrest stage, rather than the existing power for the AG to refuse consent for a prosecution? One obvious, if entirely cynical, answer is that it ensures that no proper investigation of the allegations will take place. An arrest warrant is issued on a prima facie case (a point not every opponent of the Tzipi Livni arrest warrant appeared to understand), which has then to be investigated.
Investigation may well bring to light evidence which rebutts the prima facie case, but it if it doesn’t the Attorney General will have to decide to give or withhold consent. He, and his government, would be accountable for this decision, and would face justified criticism if they were to prevent a case with a real prospect of success from proceeding.
The political consequences of preventing a trial from proceeding for political reasons are not theoretical, as the last Labour Government is only too well aware. When the BAe Systems prosecution was halted, after pressure from the government of Saudi Arabia, Nick Clegg had this to say:
This ruling is a legal licence for international blackmail. The rule of law in Britain now seems to depend on the whims of foreign governments.
If the government is to restore its tarnished global reputation there must be an independent inquiry into its role in dropping the decision to prosecute.
I wonder what Mr. Clegg will have to say the first time the DPP refuses permission for an arrest warrant, based on the government’s unwillingness to see a prosecution proceed?
I’ve commented on Rozenberg’s piece here.
A minister finally made it to the despatch box yesterday to defend the CPS, when the Attorney General, Dominic Grieve, made a statement to the House of Commons. It was a statement containing little of any substance, and to my mind he dodged the two most important questions posed to him by MPs.
I think it’s worth quoting much of what was said; if you prefer a more
macerated digested account, check out the Guardian report.
The first goes the question of the time taken by the CPS to make its decision, something I’ve commented on before. Grieve was asked about this twice, once by Emily Thornberry, and once by Diane Abbott. Thornberry’s question was simply ignored (although given she was pursuing that peculiar MP’s trick of asking six questions at once, it’s perhaps understandable!):
Emily Thornberry: Does the right hon. and learned Gentleman believe that if a member of the public had launched an unprovoked attack on a police officer that was immediately followed by the officer’s death, and if that incident was on film, a pathologist of highly dubious professionalism would have been appointed to investigate and that pathologist would have been allowed to throw away samples that could have proved the link between the assault and the death? Does he also agree that it would be highly unlikely, even if one were to leave aside the evidence in connection to the manslaughter, that there would be no action on the assault?
We have all seen the film. The man was clearly assaulted. We have also, have we not, read Nat Cary’s evidence in which he says that there is an area of bruising consistent with being hit with a baton? As Nat Cary says, if that is not ABH, what is? How can the CPS have taken 15 months to come to no conclusion? It is not going to take any action. I suggest that that would not have happened if the tables had been turned and this shows that there is no equality before the law. If the right hon. and learned Gentleman agrees, what is he going to do about it?
The Attorney-General: I should say at the outset that I think that the first part of the hon. Lady’s question is based on a slightly false premise. The appointment of a pathologist is a matter for the coroner, not for the CPS. The first pathologist appointed in this case was appointed by the coroner-he has the power to do that. The hon. Lady will be aware from what was said by the DPP and from what I said a moment ago that much flows from that appointment. It is clear that a report was produced that provided an indication to lead to further reports that looked as though it might lead to showing a causal connection between the assault and the death but that subsequently a further factual statement from the pathologist first appointed by the coroner entirely undermined the basis on which any further expert view could be taken of the case by other pathologists. That is at the root of the problem.
As for the hon. Lady’s suggestion that in some way this case would have been treated differently had it involved the death of a police officer, I have no reason to think that that is the case. It is right to say that when the matter was first drawn to the attention of Her Majesty’s coroner, it might not have been apparent at that stage-because the video evidence had not become available-that this was not a sudden death on the fringe of the G20 demonstration rather than something that was intimately linked to it, as became clear when the video evidence became available.
Having ignored the issue of the delay once, he was given another opportunity to respond by Diane Abbott:
Ms Diane Abbott (Hackney North and Stoke Newington) (Lab): Does the Attorney-General agree that a key element in upholding the rule of law is people’s confidence in the rule of law? Does he also agree that a number of issues associated with this case have tended to undermine that confidence both for the tragic Tomlinson family and for the community as a whole? The question of the pathologist’s competence has been touched on, but there is also the chequered history of the policeman involved-at one point, he was actually discharged from the Metropolitan Police Service. There is also the question of the length of time it took the CPS to finish the inquiry, which has meant that no prosecution of any kind may be brought. Does the right hon. and learned Gentleman agree that all of us in the House who are committed to upholding the rule of law have reason to be concerned about what has happened in this case?
Grieve looked like he was going to dodge the issue again, responding only to Abbott’s first point, and moving on to a question from Sir Alan Beith, but to his credit he did come back to it:
I did not fully respond to the point put by the hon. Member for Hackney North and Stoke Newington (Ms Abbott) about the timing. I simply say this: there was an IPCC inquiry first of all, which took some months. By the time the Crown Prosecution Service got the material in this case, time had already gone on a fair bit. In those circumstances, I do not take the view from what I have seen that the CPS was in any way dilatory in trying to bring this matter to a conclusion.
Not an explanation, or even an excuse. Indeed, Grieve’s statement that “…there was an IPCC inquiry first of all, which took some months” borders on the misleading; as I noted over the weekend, the IPCC sent their file to the CPS a little over four months after Ian Tomlinson died; there were two months remaining before the deadline to charge common assault.
Grieve’s perfectly correct to say that it would be wrong to charge common assault when manslaughter would be more appropriate, but even if we were to accept that the CPS was incapable of completing its file review within two months – and I find that suggestion bizarre – the fact that it took full 11 months from the IPCC passing the file over requires explanation.
The second important question which was raised was the appointment of the pathologist. Some MPs didn’t entirely seem to get the point here – notably Maria Eagle, who said:
However, is it not the case that the decision of medical authorities to charge Dr Patel, the first pathologist, with 26 counts of misconduct is materially important? The public will find it difficult to understand how the opinion of a doctor facing 26 charges of misconduct before the General Medical Council can in effect muddy the evidential waters in this very serious case to such an extent that a prosecution cannot proceed in a case where the public interest is not served, as I think the right hon. and learned Gentleman would probably agree, by such a decision.
My understanding is that Patel faced these charges after the Ian Tomlinson autopsy had been conducted, leaving Eagle essentially standing up and declaring “Post hoc ergo propter hoc!”. There had been questions raised about his conduct in other cases, as Julian Lewis noted
Dr Julian Lewis (New Forest East) (Con): Does my right hon. and learned Friend accept that the CPS might have acted with complete propriety but that its actions have nothing to do with the delivery of justice in this case? Does he understand that to allow the findings of a pathologist who has previously found a victim of the Camden ripper in 2002 to have died of natural causes resulting from heart disease to trump the considered verdicts of two other pathologists is far from satisfactory? Is he more understanding than I am of the fact that the Director of Public Prosecutions can take the view that the findings amount to an irreconcilable disagreement between experts rather than between two experts and one incompetent who ought to be disregarded?
What Lewis and others realised – but Eagle didn’t seem to – is that it’s not the charges Patel faced after the event that are the problem; the coroner’s decision to appoint Patel at all is. Mark Pritchard focused in on this and on Patel’s alleged relationship with the police force:
Mark Pritchard (The Wrekin) (Con): Is it not time that coroners were issued with new guidance that they should not appoint pathologists when there is a direct and/or present relationship with the police force they are investigating?
The Attorney-General: My hon. Friend raises an interesting question. Normally, as I understand it, that is a matter for the discretion of the coroner. It may be that one of the matters arising from this case that needs to be considered is how pathologists are appointed by coroners in all cases.
Sir Alan Beith raised a similar point:
Sir Alan Beith (Berwick-upon-Tweed) (LD): Does the Attorney-General accept that, whatever may be the normal practice, there was nothing to prevent the CPS from bringing a simple assault charge while other matters continued to be investigated? Does he also recognise that the urgency of creating a system of genuinely independent medical examiners, as recommended after the Shipman case and by the Justice Committee, is confirmed by aspects of this case?
Grieve didn’t respond to the question about independent medical examiners, and he should – it goes to the heart of the evidential problems in this case. The question of how the coroner came to appoint Patel – despite previous questions about his judgement in other cases – is an interesting one. One MP felt that the coroner’s suitability had also been undermined by his conduct towards the IPCC:
Steve McCabe (Birmingham, Selly Oak) (Lab): Is it true that the coroner, Professor Paul Matthews, refused to allow two IPCC investigators to attend the first post-mortem and failed to advise Mr Tomlinson’s family about their rights in relation to the second post-mortem? If so, how can any of us have any confidence in his ability to conduct an inquest that will have such a crucial bearing on any future decision by the CPS?
The Attorney-General: As to the latter point about the family, I am not in a position to comment. As to the first, on whether the coroner insisted that a post- mortem go ahead with Dr Patel only, I think that I am in a position to confirm that that is what he did.
I doubt this is the last we’ll be hearing about that issue.
My original question remains unanswered – why couldn’t the CPS conclude its review of the IPCC file within the two month deadline for bringing charges of common assault, and why did it take a total of eleven months to reach a charging decision?
My post on the CPS’ decision not to bring charges over the death of Ian Tomlinson focused on the manner in which the CPS dealt with the case, particularly with the length of time it took to reach it’s decision. Other lawyers have been offering their opinions over the weekend, notably Charon QC and Jack of Kent.
To what extent is the officer’s past relevant? His previous alleged misconduct might be admissible before a jury but it has to be relevant. Does it tend to show a disposition to act in a particular way? It seems impossible to say without knowing the details. I make the same observation about the casual assumption that the pathologist’s view must be flawed because he is facing criticism for unrelated matters.
If these points are irrelevant, then many of the calls for prosecution seem to do nothing more than rely on a wish to see things a particular way – or the view that ‘he did it before so he must have done it this time’ – rather than the objective examination of the evidence which is generally agreed to be necessary before making serious accusations against someone. There is a whiff of hypocrisy here as the ability to take previous conduct into account is often said to be a bad thing. If anyone is adopting the view that it is ok to use it when the accused is a police officer, they ought to stop.
They both offer quite lengthy comments on the subject, and it’s well worth a look – especially since there’s been precious little considered comment in support (or, at least, not in opposition) to the CPS charging decision.
Meanwhile, Jack of Kent offers a case for the prosecution – literally: he sets out a detailed argument that the CPS were wrong to reject charges of misconduct in public office, arguing that all of the elements appear to be present, and the CPS’ reasoning is “…misleading and unconvincing”. This is an important contribution, given that much of the focus is (naturally) on the failure to pursue the officer for an offence of violence. A failure to deal with the important context – that these are offences by a uniformed police officer – can have the same corrosive effect on public trust in the police force that I argued yesterday the CPS could suffer as a result of its failure to explain the delay in its decision making.
This bit of George Monbiot’s column today is pretty well spot on:
Hundreds of thousands of us have now seen the footage of the newspaper-seller shambling peacefully home from work. We’ve seen how, without warning or provocation, PC Simon Harwood attacked him from behind, hitting him with a baton then shoving him to the ground. We know that the officer had unlawfully removed his badge, and that his face was obscured by a balaclava. We know that, a few minutes afterwards, Ian Tomlinson collapsed and died. We also know that the Metropolitan police lied about his death to the media and to Tomlinson’s family.
This is a moment in which the pomp and majesty of the law falls away to reveal a squalid little stitch-up. In years to come you will hear Keir Starmer’s decision mentioned alongside the Widgery report, the Hutton report and the failure to prosecute the killers of Blair Peach and Jean Charles de Menezes. The Tomlinson whitewash will be seen as one of British officialdom’s most notorious swindles.
Ian Tomlinson ruling: we must all fight this whitewash
The CPS’s decision not to prosecute for manslaughter is hard, but at least understandable (read their published explanation here). A substantive dispute about medical evidence may reduce the likelihood of successful prosecution, and make a lower charge more realistic. The same cannot be said of its decision not to prosecute for assault occasioning actual bodily harm, where the available facts suggest that the CPS has usurped a jury’s right to test the credibility of the respective medical experts.
As for the fact that the CPS cannot prosecute for common assault – solely because of the time it is has taken to reaching its decision – this raises substantive questions about its conduct in this matter.
Personally, I find the general manner in which the CPS has behaved astonishing, more for the lingering air of institutional incompetence than for any whiff conspiracy. Frankly, the CPS just doesn’t seem smart enough to manage conspiracy.
By way of example, the Guardian reports that the lawyer who reviewed the circumstances surrounding Ian Tomlinson’s death (separately identified in the CPS statement as Stephen O’Doherty, a Deputy Director of the CPS Special Crime Division) also reviewed the police killing of Jean Charles de Menezes.
I’m sure nobody is going to make that a feature of future conspiracy theories.
Are we really saying that nobody in the CPS hierarchy has the basic common sense to see that this might not be a good idea? Did the Director of Public Prosecutions himself not pause to wonder if it might be best to give the file to someone else?
And what of the time taken to reach a charging decision? Ian Tomlinson died on 1 April 2009, and the Independent Police Complaints Commission passed the results of its enquiry to the CPS on 4 August. That was just four months after Tomlinson died, and well within the deadline for charging officers with common assault.
How, then, did it take the CPS eleven months to review the evidence?
Their statement makes it painfully obvious they know this is a problem, but also makes it clear they offer no credible excuse:
The CPS is aware that comment has been made about the time taken to reach a decision. We understand the anxiety that this has caused to the family of Mr Tomlinson and the DPP discussed it with them. He is satisfied that the CPS acted as quickly as was consistent with the thorough and careful review of the evidence that was necessary. The review entailed not only the painstaking exercise of mapping the movements of all concerned, over many hours, but also the extensive exercise of seeking to resolve the complex and difficult areas of disagreement between the medical experts.
This is no explanation for the delay, and one must be given. The Director of Public Prosecutions, Keir Starmer, must account for that delay, in detail and in public. It is woefully inadequate for him to simply offer asserted assurances about the situation. At best, the delay exposes a serious flaw in the charging decision process and procedural criminal law – if the time necessary to review files means certain charges cannot be brought – and at worst it suggests that the CPS machinery is fundamentally broken.
No, strike that – at worst, the delay could seriously undermine public confidence in the CPS by giving the appearance that senior state employees deliberately allowed the deadline to time out in order to avoid charging a police officer. I don’t believe that is the case, but I have no doubt that many do – just this week I’ve already encountered people who believe exactly that.
This failure to offer (or apparently to properly understand the need for) a detailed and public explanation of the delay is an indictment of the institutional competence of the CPS, and of its senior management.
George Monbiot suggests that a fund be established for a private prosecution. What the CPS statement makes abundantly clear is that prosecution of the officer concerned for assault occasioning actual bodily harm is entirely possible, and that the CPS decision not to pursue that charge is based not on a lack of evidential support, nor really upon the dispute in the medical evidence, but upon the fact that the CPS generally charges such incidents as common assault, not ABH. A private prosecution has no such constraints.
What happens next as regards the CPS will determine whether George Monbiot is right, and this becomes yet another in a litany of state failures to deal with police misconduct. A private prosecution will do nothing to remediate the self-inflicted damage the CPS has wrought. Any repair must now be imposed from outside.
The Home Secretary should, as a matter of urgency, direct an independent review of the process leading to the charging decision, with particular regard to the length of time taken. That review should publish a detailed timeline, showing the public exactly how the CPS spent eleven months reviewing the matter.
This is what that the Director of Public Prosecutions could and should have done when he released his statement. That he did not do so is sufficient grounds to suggest he should now consider his position.
A video artwork I happened across:
“1945-1998″ is a presentation of the 2053 nuclear explosions during that period, using a graphical and aural style that recalls an old arcade game – the use of differing notes for the nuclear powers creating a particularly nostalgic tonal collage.
I’ve not come across Isao Hashimoto before, and Google didn’t throw up a homepage, but apparently he’s the curator of a museum in Hakone, Japan. If anyone knows of one for the artist himself, do put a link in the comments.
Here’s a scenario you get fairly regularly when you’re an inhouse lawyer: something nasty is being said about the company/brand/director and Something Must Be Done. How you deal with it is an acid test; do you scurry away and draw up a letter of claim in your best legalese, or do you calmly explain that threatening legal action is probably not a good idea?
Whether you’ve heard of Tangent Labs is a way of separating the political geek goats from the sheep, but if you’ve ever been on a Labour Party site you’ve probably come across something they’ve designed and built.
My views about their products are a matter of record. This is from March:
When I commented on the Political Scrapbook story, I referred to Labour’s favourite digital agency, Tangent Labs, who have been responsible for monstrosities such as this (which is vastly improved from its state at launch) and this. If such sites were free, that would be one thing – but Labour paid handsomely for them.
Someone else who’s apparently less than enamoured of their work is Luke Bozier, a Labour supporting communications consultant, who took the time to give a more detailed comment on the subject earlier today, explaining why he felt the Labour party’s relationship with Tangent Labs resulted in an array of very similar, and not very attractive, sites.
For his trouble, he reports, he
“…received an email from Tangent PLC’s executive director threatening potential legal action for my Tweet earlier suggesting that Gordon’s Brown website wasn’t very well designed.”
This is far from being the first time that a company most people have never heard of decided it was important to stop people saying nasty things about them online.
Someone at Tangent Labs needs to find themselves a web browser, navigate over to Google, and enter the words “Trafigura” and “Twitter”. As a filter, they might like to try “reputational disaster”.
Once that mounting sense of existential dread has nicely established itself, they might want to pop over to Twitter itself, and check out #OffTangent.
And for the record, Tangent Labs peeps, that #OffTangent stuff?
That’s the good news.
People are also using #ThatWebsiteIsSoPissPoorItCouldHaveComeFromTangentLabs.
As a general rule, when you’ve supplanting the BBC News redesign as the current gold standard for craply designed websites, you may have cocked up.
Other people are blogging it, creating more online records of the situation, and of the negative feeling it’s generating. Not a great situation for a web design company to be in: you have to think a lot of potential customers are going to check you out online.
This afternoon is rapidly turning into a masterclass in how not to protect your brand.
Legal threats: leave them to the lawyers. We’ll tell you when they’re a bad idea.
We’ll have to wait for the detailed judgement to be sure (and the ICJ’s website has been unreachable all afternoon) but the headline comment is clear enough:
Announcing the decision, the court of justice president, Hisashi Owada, said international law contains no “prohibition on declarations of independence”.
Kosovo’s independence is legal, UN court rules
There’s a strong correlation between countries that don’t recognise Kosovan independence and countries that claim bits of other people’s land.
I’m looking at you Argentina. And Spain. And China. And India. And…
You get the picture.
It’s all about the self-interest; Greece and Cyprus haven’t recognised Kosovo for fear of the impact on their ability to enforce the status quo ante on the island of Cyprus (hence Turkey and the Turkish Republic of Northern Cyprus’ decision to recognise Kosovo. Perversely, both Israel and Palestine refuse to.)
It may be more difficult to fathom the decision of Australia, the UK, and the USA to recognise Kosovan independence – given all three have, to differing degrees, a problem with geographically cohesive minorities.
Recognising the ability of individual, cohesive groups of people to secede from states is, after all, tantamount to recognising that states are nothing but groups of individuals. Just as there is no such thing as society – unless you mean agglomeration of the mutually interdependent relations between individuals – there’s really no such thing as “the nation-state”, just people who happen to live in a particular location and consent (albeit often passively) to a particular system of laws. If, as has happened in Kosovo, people withdraw their consent, why should an abstract entity be entitled to force them to remain under its control?
If you’re one of those who likes to believe in the nation-state, and believe it has some objective reality, you probably also support concepts like territorial integrity and sovereignty, and believe that even if a cohesive group want to secede, they aren’t entitled to, without the consent of the secedee. It’s not an argument I’ve ever understood. I mean, I follow it, but it rests on a fundamental assumption that I cannot accept – the independent existence of states, separate from their people.
If, on the other hand, you believe in people, sentient beings who should have to freely consent to be governed by a particular system of laws, you probably recognise concepts like “territorial integrity” and “national sovereignty” for what they are – attempts by the parasitic memeplex known as “the nation-state” to avoid its deprecation and eventual extinction (Personally I think entities like the European Union have the potential to be excellent treatments for this particular type of parasite – kind of memotherapy).
All of which makes it frankly remarkable that the ICJ should rule in Kosovo’s favour. The devil, as ever, is in the detail, but today may yet prove to have been one of the most significant events in international law for many years.
The Raoul Moat affair: the absurbist gift that keeps giving.
At the height of the hunt last week, someone suggested that Northumbria police should swallow their pride and call in the A-Team. My response was simple – never mind the A-Team; send for Ray Mears.
Who better to track a low-rent Rambo in the English countryside? With Britain’s leading exponent of bushcraft on the case, surely Moat couldn’t remain at large for long?
Turns out Northumbria Police were way ahead of me: they’d already called Ray Mears in.
Gods help their leadership team if he suggested searching that storm drain…
Dammit, I should be too old, too mature, too well brought up to be amused by what is ultimately just a knob joke, once removed.
“Reckitt Benckiser to buy SSL for £2.5Bn” may not seem like comedy gold, but Reckitts make the bizarre cleaning product Cillit Bang, and SSL Durex brand condoms.
“Cillit Bang buys Durex”: that’s natively funny.
The lines almost write themselves – from the considered (“I’m just going to put this one out there: vaginal gel found to reduce HIV; next day Cillit Bang buys Durex”) to the surreal (“I’m Barry Scott. BANG and your virginity is gone!”).
There’s probably a serious point to be made about the dangers of cross talk within brand portfolios, especially when an increasing number of conglomerates (Unilever and Reckitt Benckiser among them) have started to promote their own identity as a unifying brand alongside that of their products, but I much prefer a trivial one (courtesy of a colleague):
Reckitt Benckiser own Lemsip.
Reckitt Benckiser are buying Durex.
You do the math.
Seeds of Earth
I don’t know why, but there’s something wrong with this book; somehow it just doesn’t work.
Seeds of Earth, the first of a space opera trilogy, focuses on a lost human colony that re-establishes contact with Earth only to find itself in the middle of a interstellar power struggle. Luckily, they share the planet with a race of small hairy bipeds who live on a forest moon…thankfully, the Ewok comparisons end there.
Ancient resurgent evil, secrets of a fallen civilisation, political intrigue between humans and their sponsor race, did I forget anything? Oh, yes – Scots in space (Cobley is another scion of the Glasgow Science Fiction Writers Circle) and evil AIs. As that summary suggests, the plot’s a pick-n-mix of space opera tropes, and the characters are similarly plucked straight from central casting – ageing revolutionary, unorthodox researcher, grief-addled father. For all that, it is competently written and some of the ideas being played with are interesting, even if there is nothing novel or interesting about the way they’re used.
Overall, I was left unsatisfied, and not in the way I was by the abrupt, violent end to Iain M Banks’ Matter. One of the cover reviews called the book “A complex, finely detailed thriller-cum-space opera”, although it’s worth noting the actual quote was “When the remnants of humanity and their alien allies recontact the settlers, the scene is set for a complex, finely detailed thriller-cum-space opera.“. That pretty much sums it up for me: the scene was set, but what followed didn’t deliver. I’d read the second novel in the series, but only because I bought it at the same time.