Big Brother Watch

One Year On: The Coalition and Civil Liberties

Big Brother Watch has today (11th May) released a research paper outlining the progress the Coalition Government has made on civil liberties issues during its first year in office.

The paper concludes that, while real progress has been made, many of the Coalition's promises to roll back the power of the state remain unfulfilled.

Click here to download the report

Commenting on the report, Big Brother Watch Director Daniel Hamilton said:

"The Coalition has some real achievements to speak off. 

"Ministers should be congratulated for taking steps to scrap ID cards and remove the profiles of the one million innocent people held on the national DNA database.   They should also be praised for doing away with the ContactPoint database of children’s details and reforming the criminal record check regime.

"They do, however, have more work to do. 

"Police stop and search powers remain in place, Control Orders remain virtually unreformed and there has been no opt-out from the European Arrest Warrant.  When it comes to E-Borders, the Summary Care Record and Intercept Modernisation Programme, they have continued to implement the previous government’s policies – warts and all." 

Insurance company deploys covert surveillance to investigate claim

After a devastating motorcycle crash left Mark Noble in a wheelchair, he was grateful to receive £3.4 million to rebuild his life. However, his insurance company were loath to pay out such a sum, and when they received a tip off that he had recovered some use of his legs, they decided to use a team of private investigators to spy on him from an animal shelter near Mr. Noble’s house. They erected a covert camera from a 50 foot mast in an effort to prove he had exaggerated his injuries for financial gain.

The methods of Direct Line were exposed after a judge threw their claim out of court. Mr Justice Field said:

“Mr Noble was determined to walk unaided. He did not dishonestly conceal from the court or the expert witnesses his then true state of disability, or dishonestly emphasise his disability.”

The injuries occurred when his motorcycle was involved in a collision in 2003. Through hard work and rehabilitation, he recovered some use of his legs over time. After seeing him walk unaided, a neighbour contacted the insurance firm to tip them off. After leaving court, Mr. Noble said:

“There isn’t a day that has passed in the last seven-and-a-half years since the accident when I haven’t felt the effects. I am leading a life of painkillers and antibiotics.”

The fact that private firms are using covert surveillance in such a manner raises serious questions of just how far they should be allowed to go. Is it acceptable for them to film into people’s bedrooms while ‘investigating claims’? The list of organisations, both public and private, spying on people who aren’t aware of it seems to grow at a remarkable rate. Firms such as DNR Solutions claim to offer a ‘professional, lawful and ethical service’, but the monitoring of private citizens seems morally bankrupt.

TfL story updated

The TfL post which generated considerable discussion and traffic yesterday has been updated with a response from TfL.

By Alex Deane

Transport for London breaks the law

Over at Adrian Short's blog, a shocking story from someone who, it seems, has every sympathy for TfL.

Short submitted an easy-to-answer Freedom of Information request to TfL about usage of Boris Bikes (he is a big fan and, having helped to promote them, wanted to plug their success).

But...

if I want to get a response to my FOI request from TfL I am asked to enter into a contract with them whose terms include:

    "2.1.2 [You shall] only use the Transport Data in accordance with these Terms and Conditions and the Syndication Developer Guidelines, and not use such information in any way that causes detriment to TfL or brings TfL into disrepute. The rights granted to You under these Terms and Conditions are limited to accessing and displaying or otherwise making available the Transport Data for the purposes stated by You in Your registration."

So not only is TfL’s contract explicitly asking me to state my motive as a precondition of access, it also constrains me from using the information for any other purpose and arguably prevents me from using that information to criticise TfL, thereby causing it “detriment” or bringing it into “disrepute”. If I don’t agree to this they can deny access altogether and if I subsequently break the agreement in their view they can revoke access. This is a funny kind of free information.

That is absolutely disgraceful. No public authority has the right to withhold data on the basis that it might be used to the detriment of that authority. The data doesn't "belong" to the authority - it belongs to us, the public, who paid both for the services about which it is collated and for the collation. Part of the point of the Freedom of Information Act is that it might reveal something to the detriment of the Authority in question - that's the purpose of facilitating openness and scrutiny in the first place. Without that capacity, if the data can only be used for positive purposes, then those submitting queries are simply unpaid press officers for the Authority concerned.

We at Big Brother Watch are extremely concerned by this development. We use FoI for our research - whether it be into the number of CCTV cameras controlled by councils, the ability of officials to enter private property, monitoring microchips being inserted into millions of dustbins, breaches of privacy in medical records, the retention of DNA samples from innocent people on the state database, covert surveillance by local councils, CCTV cars operating on our streets, or money spent on surveillance cameras by local authorities, all of our reports have depended on the Freedom of Information Act to compel Authorities to disclose information about their activities. Wherever you stand on the issues I've just listed, and the issues which might form the subject of future research we would hope to do using the same legislation, presumably you agree that there should be such discussion, per se. After all, they're spending our money and their behaviour governs the way we live, so we should know about it.

By and large I'm very pleased to say that most authorities comply with their obligations under the Act when responding to us (and we happily name and shame those that don't). But if TfL behaves likes this and can get away with it, then others will follow. Our research will become more difficult to conduct, or simply impossible. So will that of other organisations that hope to hold government to account. That's why this is so serious. We do (he said immodestly) enjoy some success in the media in doing reactive stories based on news emerging elsewhere, but the real purpose of any organisation like ours must be to carry out proper, original research. Behaviour like TfL's makes this very difficult. So - this is a call to arms. Please link to this blog post or to Adrian's original write-up on Facebook, on Twitter, on any blog to which you might have access. If you care about the future of Freedom of Information Act - or about the future of information, or the future of freedom - then it's up to you.

By Alex Deane

Hat tip: Dick Puddlecote

*UPDATE*

Transport for London has contacted BBW. A TfL spokesperson said:

“Transport for London takes its obligations under the Freedom of Information Act (FOI)  extremely seriously and we provided a response to this FOI within 20 working days making clear that we would be publishing the remaining data on our website shortly and have since done so.  TfL is recognised within the developer community to be one of the most forward thinking public sector organisations in relation to making our data available and have set up a developers’ area on our website providing a host of information.  This move was universally welcomed in the developer community.  The terms and conditions on the developers area relate to reuse of our data and does not inhibit right of access.   Access and re-use are two separate things and it is normal practice to monitor re-use of IPR or copyrighted information when providing information in response to an FOI request. The reason this information is provided on the website is to provide value for money to London taxpayers and passengers. Saving information onto hard discs and sending securely through the post for one person is less cost efficient than making the same data available on the web for a large number of people.”

Alex Deane comments: It seems to me that this hardly answers the suggestion that TfL attempt to fetter the uses to which the data might be put, as a condition of releasing it, something they have no right to do. Indeed, if anything, it confirms it.

Clegg's speech: a waste of time

I attended Nick Clegg's speech this morning, and discussed it on Victoria Derbyshire's show on Radio 5 Live today. Over at Public Service I have written an article which puts the argument more fully. In case you're interested, I thought I'd reproduce it here:

Perhaps against our better judgment, I and a number of other civil libertarians trudged through the rain to listen to Nick Clegg's speech at the Institute of Government today. What a waste of time it was.

One appreciates that today is the Deputy Prime Minister's birthday, but there's still no excuse for giving a speech so entirely without substance as this. Effectively, this was the governmental equivalent of the boy who cried "wolf" – he called a press conference, but had nothing to say. As I said with praise at the time, the mood music on offer when the coalition was formed was extremely encouraging – but now, fully seven months on, it is profoundly depressing for anyone who cares about freedom to find all-but exactly the same music on offer, with no substantive additions at all.

Mr Clegg spent a great deal of time talking about the expansion of Freedom of Information, which although hardly revolutionary is significant and welcome, and on libel and defamation reform, on which there was some substance. The trouble there is that that latter issue falls squarely in Ken Clarke's patch, not Clegg's, but – his desparate team must have thought – so what? The DPM desperately needed something substantive to say. And he'd obviously been denied any meat – at all – on the issues everyone was there for, i.e. our profoundly illiberal anti-terror legislation, under which hundreds of thousands of people are stopped and searched at random without a single terror-related arrest, people are kept under detention for a month before they're even charged, and individuals can be put on control orders indefinitely. All of this, he said, fell under the purview of the Home Secretary, and he wouldn't presume to say anything about it – peculiar, one might think, for the man supposedly in charge of the Freedom Bill, especially on the Control Orders front.

The case for action on this is plain, and not only because the Liberal Democrats were so clear and principled on the issue before the election. Control Orders are completely immoral. If you're a victim of this pernicious form of house arrest, not only are you denied sight of the evidence against you, you're not even told the nature of the accusation. So there's simply no way to defend yourself from it. When the Government can restrict liberty like this on a whim, it is not enough, on the one hand, to speak in head-shaking, deep-toned, pseudo-profound terms about the "grave threat" we face, and on the other offer assurances that the police and security services "know what they're doing" (just ask Jean-Charles De Menezes or Ian Tomlinson what they'd make of such assertions). At times like these, faced with an objectively less significant threat than this country faced throughout the 1970s, the kneejerk reaction on show from the last government is truly the greatest threat posed to our free society.

Such a threat is far from merely theoretical. Blame my barristerial background, perhaps, but I'm old-fashioned enough to believe in the presumption of innocence, and in trying people accused of crimes in courts, then finding them innocent or guilty. Such basic principles were gravely harmed by the last government, and once such bright line principles are breached then the freedoms of all of us are threatened.

Though he talks a good game, Clegg has hitherto done and is doing precisely nothing to reverse this illiberality. There were lofty words on offer on covert surveillance for absurd things and on our DNA database, the largest per capita in the world, with the details of more than an innocent people on it. There was even a single line about limiting the power of representatives of the state to enter private property.It was all rather familiar [for BBW followers...]. But on absolutely none of it was there any specificity. So one fears that the delays, reviews and empty speeches (co-ordinated with a suspiciously well-timed parade of supposedly impartial grandees coming out against Control Orders, and a remarkably coincidental escalation in the terror level we are told we face) are taking place as a prelude to substituting effectively the same kinds of regime on all of these issues. This is why, for example, one views Clegg's preferred formula, "Control Orders cannot survive in their current form", with such suspicion. We are very likely, I fear, to see a cosmetic change offered as a sop to the Liberal Democrats, with no real genuine action at all.

I do not allege that Clegg is actually happy with this. Perhaps he is making all manner of uncomfortable compromises. But is he actually right to do so? Of course the Lib Dems are enjoying the trappings of power, but Mr Clegg has to ask himself – is he truly the Deputy Prime Minister, or not? If he is, then this kind of delay by others on his fundamental manifesto pledges, leading to his excuse-riddled inaction, is simply inexcusable. If he's not… then what's he doing in the Coalition?

By Alex Deane

*PC Pro scoop* - the ICO colluded with Google in the course of their "investigation" into the Wi-Fi scandal

Over at PC Pro, an unbelievable story: the Information Commissioner’s Office and Google "teamed up" on their response to Rob Halfon MP's complaint about the search giant's Wi-Fi scandal.

PC Pro obtained documents using the Freedom of Information Act which support this explosive allegation of collusion between "watchdog" and data snatcher.

As readers of this site will know well by now, Google was caught scraping private data from unsecured Wi-Fi connections in May as their cars trundled around the country, but initially said no personal information was collected.

The ICO "investigated" the issue in July, agreeing with that assertion; had it been up to the ICO, the whole scandal would have ended then and there, on an untrue basis that not even Google now maintains to be the case. But in October both Google and their pals at the ICO had to admit they were wrong after other data watchdogs abroad, who actually had an interest in doing some work, uncovered the unsurprising fact that email addresses, passwords and URLs had in fact been picked up.

Given that admission, Tory MP and friend of BBW Robert Halfon asked questions about the investigation in Parliament. Over to PC Pro:

After Google confessed the scraped data held more personal information than it first admitted, the ICO's group manager for business and industry, Dave Evans, sent an email to a Google employee with the subject line “guess what this might be about”.

Evans asked the Google employee, whose name has been redacted, if they were free for a “quick chat about the Wi-Fi business”.

“We are having an internal meeting next week about our next steps and obviously in light of Rob Halfon MP’s continued misrepresentation of the issue, the quicker we get something done the better,” Evans said.

The exchange was revealed in a Freedom of Information Act request by PC Pro. However, the ICO refused to hand over details of its Google investigation, claiming the information could hinder other data watchdogs’ on-going cases.

In response, Halfon told PC Pro that he still believes the ICO should have been tougher on Google. "I've had a very amicable meeting with the ICO, but I still think the organisation is falling short in its investigation of Google."

Which I think we can agree is pretty restrained in light of the ICO's cosy chat about Rob with Google, over whom they're supposed to be watching...

After Google admitted collecting personal data, the ICO declared the incident a “serious” breach of the Data Protection Act. The watchdog required Google to sign an “undertaking notice,” promising to delete the data, submit to an audit and improve its data practises.

But the documents obtained by PC Pro show that the ICO let Google submit changes to the undertaking, notably asking the watchdog to shrink down the scope of the audit:

“That draft scope was however extremely wide and one Google would definitely not be comfortable with without considerable refinement and discussion,” wrote a Google employee.

Google later explained that the company was worried about the precedent the audit might set in other countries.

The two organisations debated the timeframe, with the ICO preferring the audit happen within six months, while Google appeared to favour a year. In the end, the pair split the difference and agreed on nine months.

How chummy.

The documents also show ICO employees didn’t initially believe investigating the issue was "actual work":

“Apologies for taking a while to get back to you with yet more questions, but restructuring in the office and other (actual) work has delayed my response somewhat,” Evans wrote in May to a Google employee, two months before the watchdog looked at a sample of the collected data.

And there's no need to take my word for any of this. You can see the two collections of emails can be viewed in PDF format over at PC Pro (to whom, massive kudos for a first class bit of investigation).

For some time I have been maintaining that the ICO is an apologist for the worst offender in the field rather than a policeman of it. Well, here's the proof, in writing.

By Alex Deane

View from America: We must protect the jury system

There is a budding movement in the states as a defence against laws which convict citizens for victimless crimes and other judicial improprieties. The Florida state organizer for FIJA (Fully Informed Jury Association), James Cox, is originally from Great Britain and a strong advocate of individual rights. I had the privilege of meeting him at the Florida Liberty Summit where he subsequently unveiled his plans to combat the judicial status quo by asserting his rights as an activist and a FIJA organiser.

FIJA is a national non-profit educational organization, which informs individuals about their rights, powers and duties as jurors. FIJA seeks to distribute information to jurors which they are not likely to be told in court.

FIJA believes that "Liberty and Justice for All" will not return to America until individuals are fully informed of - and utilising - their power as jurors. The Founders knew how important juries are and stressed it accordingly. The jury is mentioned four times in the Constitution and the Bill of Rights [Article 3 - section 2 of the US Constitution and Amendments 5,6 and 7 of the Bill of Rights.]

Just how much more abusively can airport security treat fliers, before there is real action? One airport tries to find out...

A woman is suing the US Government over an incident in which

airport staff allegedly pulled down her top and joked about her breasts in public view.The 23-year-old traveller, from Amarillo, US, is suing the US Government for the emotional distressed she says the Transportation Security Administration (TSA) agents caused.

'The woman says she was singled out for "extended search procedures" while preparing to board a plane to Amarillo in May 2008.“As the TSA agent was frisking plaintiff, the agent pulled the plaintiff’s blouse completely down, exposing plaintiffs’ breasts to everyone in the area,” the lawsuit said.

Turns out I don't want to know the way to Amarillo. And it wasn't just one or two bad eggs, it seems. The lawsuit claims that

other employees laughed and made jokes about the incident "for an extended period of time".The distraught woman left the screening area to be consoled but when she re-entered the boarding area employees allegedly started joking about the matter."One male TSA employee expressed to the plaintiff that he wished he would have been there when she came through the first time and that 'he would just have to watch the video." 

We'll watch what happens with the case with interest, and report back.

By Alex Deane

Jury trials must be defended

Louise Casey, the Government's victims' commissioner, has called for the scrapping of the right to trial by jury trial for lesser offences that "clog up the courts", to save money. She also points out that victims of serious crime have to wait for longer to give evidence in the Crown Court as a result.

She is no doubt right in her claim that almost 70,000 cases which could be heard by magistrates makes up more than 40% of the crown court's business every year, which costs more money than trials in the lower court. But she apparently fails to appreciate that hearing such cases isn't just a "nuisance" for the Crown Court - it's part of our system's essential functions.

The right to trial by a jury of one's peers is one of the cornerstones of the British criminal justice system and it has been the basis for fair and transparent justice for hundreds of years. Any attempt to limit jury trials must be resisted.

Calls to limit trial by jury are really made for two reasons – trials by Magistrates are cheaper, and conviction is more likely. Neither is a good reason to change the trial process.

Her alternative, superficially more attractive argument, is also totally false:

"We should not view the right to a jury trial as being so sacrosanct that its exercise should be at the cost of victims of serious crimes."

It's a false dichotomy. This is actually an argument for greater resources in the court system, and is no argument against jury trials at all. And ultimately, even if her parallel is right, a fair trial is sacrosanct. Once you start tinkering with it, it will prove very hard to stop.

By Alex Deane

Information Commissioner fails to act against Google

The Information Commissioner's office has just issued a statement confirming they will not be taking (what they term as) "knee jerk" action against Google for their harvesting of the personal data of thousands of people.

According to the Press Association, the ICO is "waiting for the result of overseas inquiries before deciding whether to consider using its enforcement powers" and could yet issue a "stop notice" forbidding Google from collecting such data in the future.  

This lack of action from the ICO follows the regrettable decision of the Metropolitan Police last week not to pursue a criminal case against Google.

Their failure to take decisive is nothing short of a disgrace. If they're going to wait until results from abroad, then what is the point of having an ICO of our own?  The Commissioner has been an apologist for the worst offender in his sphere of responsibility, not a policeman of it.

What kind of a message does it send out about the effectiveness of the ICO and their commitment to personal privacy when a company like Google is able to harvest the personal information of thousands of people and get off scot-free?

By Daniel Hamilton

Book launch this evening: ‘Fight Terror, Defend Freedom’ by Dominic Raab MP

This evening will see the launch of civil liberties campaign group Big Brother Watch’s new publication, ‘Fight Terror, Defend Freedom’ by Dominic Raab MP.
 
The launch of the book will take place between 5:00pm and 6:00pm today in the Thatcher Room in Portcullis House, Houses of Parliament.  
 
Mr Raab, who was an international lawyer prior to his election to Parliament, will introduce his publication, followed by a panel discussion including former Shadow Home Secretary David Davis MP, Centre for Technology Policy Research Jerry Fishenden and Big Brother Watch Director Alex Deane.   
 
Commenting on the launch of the publication Raab said:

“Today’s publication of the National Security Strategy, highlights the flaws in the last government’s approach to counter-terrorism. Too much time, money and effort was wasted on ‘sound byte’ security. Too many of Labour’s measures, like ID cards and prolonged detention without charge, were unnecessary or irrelevant to our security. 

 “The government has a golden opportunity to break with this flawed approach. We should be defending our freedoms, like free speech and the presumption of innocence. At the same time, the justice system is an underused weapon in the fight against terrorism. We should be strengthening our capacity to prosecute terrorists – not least by lifting the ban on using intercept as evidence.” 

Alex Deane, Director of Big Brother Watch said: 

“The case for action is now irresistible.  Dominic Raab’s publication shows the injustices being done every day in this country.  Stop and search and control orders are being reviewed – why?  Why review something when you know it’s wrong?“ 

Click here to download a copy of the booklet.

If the police want to be in court less, perhaps, rather than changing the rules about bringing legal action against them, they might change their behaviour..?

Extraordinary stuff emerging this morning about Sir Paul Stephenson, Commissioner of the Metropolitan Police. He wants to make it harder for members of the public to bring legal action against the police force.

The power to bring legal action against the police is an important tool in the arsenal of the citizenry, protecting us from the abuse of power by those entrusted with it and ensuring that the state does not overstep its bounds. It stands, furthermore, as an important symbol of the nature of the relationship we have with those who police us: we are not solely accountable to them; they are also accountable to us.

Furthermore, I think that there's a pretty obvious problem with his logic. If you think that legal action is being brought against you too often, perhaps the problem isn't with the system, but rather with.... (*drumroll*)... you.

Let us hope that Theresa May tells Sir Paul where to shove it.

There is a broader issue behind the suggestion, which I think is important. This was once a country in which it was felt, broadly, that the policeman is your friend. I don't think that that's true any more.

By Alex Deane

Related post over at Conservative Home: do you trust the police?

Taking the biscuit

The Big Brother Watch team is well used to receiving reports of odd and extraordinary rulings from education-establishment busybodies but this one, quite literally, takes the biscuit.

Kathleen Lavery, a married mother of three, has been forced to quit her job as a primary school dinner lady in the Northern Ireland town of Enniskillen following the stress of an internal disciplinary procedure instigated after she gave a young child a biscuit.

Mrs Lavery was informed by the school that “her actions could be interpreted by some as grooming a child for sexual purposes”, a preposterous allegation which has led to rumours and innuendo about her personal life.  

The Chairman of the Northern Ireland Assembly’s Education committee Mervyn Storey commented the investigation was "political correctness gone too far".  He’s right.

Read the full story, c/o of the Telegraph, here.

Update: A BBW supporter has informed us that common sense has now prevailed and Mrs Lavery has been reinstated to her post.

By Daniel Hamilton

The Child Support Agency + surveillance = credit card debt

With levels of both government and personal debt at dangerous levels, one would have thought that the Child Support Agency – a body which prides itself on bringing “financial stability” to the homes of children whose parents live apart – would do all it could to encourage parents to behave in a fiscally responsible manner.

This emphasis on fiscal responsibility does not, however, extend as the sleepy south-coast town of Poole.

Following a reassessment of the level of child support payments he must make, 49 year old father Stephen Bailey has been ordered to make an additional contribution of £300 towards his daughter’s upkeep.

While willing to make the additional payment at the earliest opportunity, Bailey lacked the sufficient funds in his current account to do so.

“No problem”, a representative of the CSA informed him, “you have £617 left on your credit card.  Pay up!".

Bailey later discovered that the CSA has an established policy of using credit referencing agencies in order to delve into the financial matters of absent parents.

Nobody would argue that steps must be taken to ensure delinquent parents must pay their fair share for their children’s upbringing. What is, however, profoundly wrong is for the CSA to abuse their privileged access to personal financial data in order to bully individuals into racking up irresponsible credit card debts.

The CSA, of course, has form in this area having been criticised by a thirteen year old girl late last year for bankrupting her far-from-absent father.  Read Mr Bailey’s full story on the Bournemouth Daily Echo website.

By Daniel Hamilton

Does the Human Rights Act really protect our freedoms?

Francis Hoar is a barrister specialising in criminal law

The recent, sad and untimely death of Lord Bingham, KG, one of this country's finest jurists, calls for a reflection on the importance of the rule of law, about which he wrote so recently. Most importantly, what lessons can we learn from three decades in which Lord Bingham sat as a judge?

It is right to speak with pride of the legacy of Britain's common law system. Its principles are the foundation of legal system throughout the world protecting the individual against the State. The common law experience shows the merit of laws derived not from the codification of abstract principles but through the resolution of real conflicts and disputes. Yet anyone who watched the BBC's brilliant Garrow's Law will have had an insight into how little protection was trial by jury in a world without a fair police force, thorough investigation and  strict rules of evidence and disclosure.  As we all know, the experiences of the Birmingham Six and Guildford Four demonstrated how inadequate protection against such abuses lived on into the late 20th century.

The recent general election again brought into the fore debate about the effects of the Human Rights Act 1998 ('the HRA') and the European Convention on Human Rights ('the ECHR') it incorporated. As a criminal barrister, though, I would rather start with one of the finest pieces of legislation of the 20th century, the Police and Criminal Evidence Act 1984 ('PACE'). It is through this Act that suspects' interviews must be tape recorded, identification parades held and evidence obtained through oppression excluded. These parts of the criminal justice process may not appear particularly important to a layman but they are critical. Fine principles are toothless without carefully drafted rules (whether from statute or case law) to ensure a process that appears fair isn't corrupted at critical stages, leading to injustice at best but at worst the imprisonment of the innocent for years, even decades.

Call the President a pr*ck, get barred from the USA for life

Back in early May, I did a lot of media work about attempts to impose an ASBO on a boy (coincidentally, represented by my old firm) who liked to wear his trousers around the mid-thigh area, exposing his pants.

I viewed that story like this:

1) he's an idiot

2) but the state shouldn't have anything to do with punishing him

3) the correct response is simply for us to form our own views about him (see (1)).

My take on Luke Angel, the boy who e-mailed the President and called him a Pr*ck and is now banned from entering the USA, is just the same.

Plainly it's a walloping overreaction. What does it really say about the USA that their Commander in Chief is so thin-skinned that a foreigner who insults him gets barred from the country? What does it say about a country when its migration laws are used to dole out punitive punishments for naughty boys?

The correct response would have been to ignore him. But if they simply couldn't hold themselves back, and the remarkable and shocking thing that this young man did simply had to be responded to, they should have said, "he's a bit of an idiot". Because he is. But they shouldn't have banned him from the country, a response normally reserved for those who are likely to commit serious crimes or constitute a grave threat to national security. Because he's neither.

By Alex Deane

I am going to blow up Robin Hood Airport

The man charged with a criminal offence for posting "I am going to blow up Robin Hood airport" on Twitter has been convicted.

The judgement lacks common sense. Someone joking about terrorism on Twitter might be an idiot but he’s clearly not a terrorist, and treating him like one undermines faith in the law; it's a wildly over the top, authoritarian response to the current situation.

This absurd judgement is enough to make me want to blow up Robin Hood airport.

By Alex Deane

An escalation in EU surveillance powers

In our election manifesto, Big Brother Watch calls for 'a commitment to exercise the British opt-out of the European Arrest Warrant on 1st June 2014'.

Our reason for including this as one of the 30 key pledges, is that we are increasingly concerned about foreign countries being able to hold sway over our liberty and privacy, seemingly without much accountability. As the Gary McKinnon case showed - in cases of extradition, more often than not the person and the issue get ignored and the case becomes a political football.

So we are very concerned by this morning's revelations about a potential increase in the powers afforded by both the European Arrest Warrant and European Evidence Warrant; as the Daily Telegraph explains:

The European Union has put forward a proposal for a continent-wide search warrant, which could be issued in any state, and which would be binding on all police forces.

Under the proposals, authorities in countries such as Poland would be given the power to demand that British police seize the bank account details of a suspect living in this country.

Warrants could also be issued which would force police to intercept phone calls, set up CCTV surveillance, monitor bank accounts, and even demand body samples such as fingerprints or DNA.

This European Commission Green Paper proposes going much further than the European Arrest Warrant and is in essence, an expansion of Ripa powers to every state in the EU.

It would even allow magistrates or judges in one EU state to authorise searches of a person's property in another state, and seizure of evidence.

This is a very dangerous escalation in EU surveillance powers that needs to be stopped - and the privacy implications properly discussed - before it is too late. Tragically, the minutes of a parliamentary committee show that BBW's old bête noire, Home office minister Meg Hillier, has backed the new proposal, saying:

"We would in principle support a new and comprehensive instrument based on mutual recognition that covers all types of evidence."

By Dylan Sharpe

The gruesome reality of ANPR

Earlier this year I wrote about leaked documents that suggested that the police were using the ANPR (automatic numberplate recognition) CCTV network to target innocent members of the public for fines and arrests, simply to meet government targets.

Now documents released by the police have revealed the full, gruesome extent of the ANPR system.

From the Sunday Times:

The ANPR network has expanded unchecked by parliament since police first decided to develop a national system in 2006. It is now linked to more than 10,000 CCTV cameras discreetly placed on motorways, main roads and in petrol stations. It has also been integrated with the cameras originally set up in 2003 to enforce the congestion charge in London.

Software being developed for the system will eventually allow police to track the movements of up to 100m vehicles at any time — more than double the number currently on the road. The database can also be “mined” to track the past movements of specific vehicles

New police figures show that the number of images stored from vehicles in the Milton Keynes area alone has risen from almost 1.8m in 2008 to 8.9m last year.

Acpo said that between 10m and 14m images were being stored nationally each day.

The article also says that Liberty are to launch the first ever legal challenge to this nationwide surveillance network - it can't come soon enough.

We are being tracked from the moment we leave the house, to the moment we return. This sort of sophisticated and intrusive surveillance is more reminicent of Soviet Russia than Twenty-First Century Britain.

The state has already made its mind up and we are all potential criminals.

By Dylan Sharpe

A disgraceful judgement

Earlier this month we highlighted the tragic case of Jim Railton - the auctioneer from Alnwick who had been arrested for putting a 19th Century wooden cabinet containing birds eggs up for sale at his auction house.

Jim is a parish councillor and a law-abiding man who, because of this ridiculous episode, has now had his DNA added to the national database and gained a criminal record.

As we said at the time; the authorities could have had a quiet word, perhaps even cautioned him - but instead (egged on by the heinous RSPB) Jim was hauled in front of a magistrates court.

Today the court passed its judgement (from the BBC):

A Northumberland auctioneer has been fined £1,000 for trying to sell an Edwardian chest of drawers containing 100-year-old bird eggs.

Jim Railton, who said he had no idea he was breaking the law and claimed he would have only made £15 profit from the sale, has branded the fine "harsh".

The 57-year-old admitted at Alnwick Magistrates' Court one count of exposing for sale wild birds eggs. 

This fine is an absolute disgrace. Jim Railton is a law-abiding man who has been awfully treated by both the RSPB and Northumbria Police.

Instead of wasting time and money pursuing this non-crime, the police should have been out hunting real criminals.

Now an innocent man has had to hand over more than £1,000, had his DNA taken and been given a criminal record.

A very sad state of affairs.

By Dylan Sharpe

Powers of entry to private property - Lord Selsdon leads the way

Lord Selsdon's Bill limiting powers of entry by bureaucrats to private property is progressing. in the Lords - it is but the latest of his many admirable efforts to restrict the remarkably wide-ranging powers available to many officials up and down the country for a multiplicity of reasons. Big Brother Watch is proud to support him in his work and I am on the steering committee he's setting up to assist with the Bill and the aftermath.

You'll remember our recent research and event on this issue (which the great Lord S attended!).

We'll keep you posted on the progress of the Bill.

By Alex Deane

To arms!

You probably haven't seen this story before, but you've seen a dozen like it - overzealous, over-the-top prosecution of law-abiding person by authorities which chase politically correct agendas rather than target criminals.

Jim Railton is an auctioneer. He was given a lot to sell - a little wooden cabinet with some 19th century eggs in it. It was valued at £30. He put it up for sale.

He was arrested and treated like a criminal - he is now charged with two offences relating to the sale of bird eggs under the Wildlife and Countryside Act 1981 (an Act some 90 years younger than the eggs...). As Jim says,

"in retrospect, we should have just smashed the eggs. They are antique birds eggs, and all of common species, and had old paper copperplate hand-written labels on them.  It was a little oak chest, which we judged to be circa 1900.

We sell butterflies, shells, taxidermy – in fact just the type of things that come from people’s attics.  To be arrested for offering to sell this little chest seems absurd, and a complete waste of police time.  They have interviewed me twice, taken my fingerprints, swabbed me for DNA, had RSPB specialist inspectors visit Berwick to look at the eggs..."

Name and shame time - ridiculous attitude from the RSPB, who aggressively pursued this and caused the prosecution to come about. Even worse from Northumbria Police, who really ought to know better. Let's presume for a moment that they were right that this is an issue (which, of course, it's not, but play along...) - consider all the steps they could have taken before getting to this stage: (a) a friendly telephone call pointing out he'd unintentionally breached this rule; (b) a letter setting out a warning; (c) an in-person visit from a constable (we're already in OTT territory); (d) forbidding the sale; (e) summoning him for interview. But no; our masters really want to get this guy - because he's a law-abiding normal person who has strayed over a line - i.e. the favourite target for the authorities in modern Britain.

In the circumstances, Jim is understandably having a think about what to do next - get it all over with, or fight these ridiculous charges. Big Brother Watch has talked with him about assisting him in this unpleasantness which is of course disrupting his business and personal life; we begin by letting you know about it and calling for your help. For starters, you might like to visit their website and, if in the neighbourhood, support the business...

We are proud to support Jim in this ridiculous case. We have had some success with cases in the past and this is a prime example of the kind of overbearing, politically correct absurdity we were created to fight.

By Alex Deane

Blogger evicted from court whilst print journalist remains

Many people now obtain their news from the internet. This method of communication has allowed a remarkable explosion of free speech, of providers of information (usually providing content which can be obtained for free) and a muliplicity of choice in what one reads. It is to be applauded.

That's not how the authorities feel in some parts of this country, it seems. Simon Perry of VentnorBlog, a well-established news blog on the Isle of Wight, was thrown out of a coroner’s court on Tuesday (you can read his account here).

Name and shame time: acting on behalf of the Coroner, John Matthews, Coroner officer Richard Leedham said that he did not wish him to be in the court – as a journalist or as a member of the public.

But the Isle of Wight County Press was allowed to stay.

Leedham told Journalism.co.uk that the court "would not be making a comment, but that a statement had been made by the coroner after VentnorBlog had left the room." Well, how helpful! What was it?!

The case concerns the death of a woman on the Island in September 2008; the coroner court case has been postponed twice. VB wrote that it had been “led to believe that circumstances surrounding her death may be of public interest”.

VB apparently gathers that the exclusion was due to their coverage of a past case, which the court - whilst taking no formal action at all - had not liked. Well, so what?  An adverse take by a newspaper to an Old Bailey decision doesn't see that title excluded from the Central Criminal Court - why should a blog be treated differently?

As it happens, Perry is a member of the National Union of Journalists, but I don't think that that matters. Absent particular, specific, exceptional circumstances, the principle is the same, for journalists or the public - justice should not only be done, it should be seen to be done. We have open justice in this country.

The daughter of the woman concerned said she was glad the VB was ejected, and wished that no media were able to watch the case. I sympathise with her for her loss and on an emotional level understand her point of view but I'm afraid that objectively her opinions don't matter one bit. Many people would rather news providers were excluded from covering things of public interest - it would be a disaster for open, civil society if that desire held any weight.

As one of VB’s followers said,  “Ventnor blog seems our one source of reliable info on the Island.” Perhaps that's what is disliked...

Perry said,

access to a coroner’s inquest is a basic and important right for the public and press. Without it there are no checks on people’s deaths. As no notes are published from the inquest, the only way that it can be understood and reported is by people / press attending.

I have worked in the court system for some time and I know how important it is for people to have access to proceedings, to find out what is going on in our justice system. On the evidence available it's my view that this decision is a disgrace and I hope that VB does not let the matter lie. Cue the NUJ, perhaps..?

By Alex Deane

Waving a hammer lands woman in court

...and the taxpayer with a £20,000 bill.

As reported in the Daily Telegraph:

Beryl Welch, 61, was charged with affray after scolding four scouts aged 11 to 13 who were clambering up trees at a scout camp next to her garden in Cosgrove, Bucks.

After her pleas were ignored and fearing the trees were being vandalised, she got a claw hammer from her house and angrily waved it at the youngsters. 

But following a two-day trial, a jury of six men and six women cleared Mrs Welch of affray and found her guilty of the lesser charge of threatening behaviour.

Judge Charles Wide QC gave Mrs Welch a 12-month conditional discharge and criticised the prosecution and the CPS for bringing the case to trial.

He said: ''To have the Crown Court and the taxpayer dealing with a case like this is quite beyond me.

''How could anyone have thought it appropriate to charge affray in a case like this? How could anyone have thought a jury trial was appropriate, whether or not a woman threatened a scout with a hammer?"

It is no surprise that the court has thrown this case out. This woman is not a criminal and should never have been treated like one.

Waving the hammer was a mistake; but the time and money spent on this case, as well as the anguish no doubt felt by the woman involved, are a sad indictment of our legal system.

By Dylan Sharpe

Did a US school use webcams in laptops to spy on students at school and at home?

This one needs to be taken with a good pinch of the proverbial for the time being as it's based on the hitherto unsubstantiated claims made by students seeking compensation, but a remarkable story - laptops issued to students by a Philadelphia high school have webcams which can apparently be covertly activated by the schools' administrators.

It is believed that said administrators have used this facility to spy on students and even their families. The issue came to light when the claimant's child was apparently disciplined for "improper behavior in his home" and the Vice Principal used a photo taken by the webcam as evidence against him.

Here are the court papers filed by the claimants - they make quite remarkable reading.

If these claims are true, the ramifications for privacy everywhere are huge - and very bad.

By Alex Deane

Hat tip: Marchamont

Guaranteeing freedoms and liberties for people you don't like is essential if you want them yourself

The Telegraph's Con Coughlin wrote a piece last week in which he stated that when British judges upheld the rule of law in the Binyam Mohammed case, they revealed that they were Taliban sympathisers and would be equally to blame with Osama Bin Laden if London is bombed again (if you look at his article, you will see that I am not exaggerating). I wrote a response on Conservative Home, in which I thought you might be interested.

The exchange between us provoked responses in the Spectator, the Guardian, the Wall Street Journal and a further piece from Coughlin himself.

Suffice it to say, I stand by the position I've already expressed - that

I want us to defend a society in which we believe in innocence until proven guilty, freedom of speech, even for those with whom we disagree, and, perhaps controversially to your mind, not torturing people...

For these purposes, I don't care if he was serving with the Taliban. That service against our country would mean many things, including rendering him a legitimate target for warfare in the theatre of war, but it does not render him a legitimate target for torture, because nobody is. There are certain things that no civilised state should do, no matter how severe the provocation. Torture is one of them. It is the lot of free societies to fight with one hand tied behind our backs against the thugs who oppose our values. These are the values which make us different from them and giving them up grants them victory even as you torture them. For this reason, if we caught him we shouldn't even torture someone like Osama Bin Laden, let alone someone released without charge after several years of imprisonment.

And that's the point, isn't it? Mohamed hasn't been convicted of anything. Coughlin keeps questioning the account Mohamed has given of his time in Afghanistan, as if the "Con Coughlin reckons you done it" standard ought to apply in the justice system rather than the rule of law and the presumption of innocence.

I learned in my time at the Bar that it is precisely when the odds are stacked against a defendant that he most needs the benefit of a fair justice system - that it is when the evidence is apparently strongest that the rule of law is most important. Megarry J said in John v Rees [1970] that the path of the law is strewn with examples of open and shut cases whcih, somehow, were not; of unnswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained... Coughlin is not interested in those notions - of testing evidence by due process, of a fair trial acting as a buffer between the wrath of the people and the individual. He wants to have his cake and eat it - to avoid any opportunity for Mohamed to present his defence properly in a court of law, and still say that he is certain of his guilt. It is important to point out what Coughlin is for when he is against fair trial. It is not hyperbolic, but accurate, to say that Coughlin's is an argument for the rule of the mob.

Coughlin goes on to insist in his response piece that he believes in a fair trial for "innocent people". Which rather defeats the point to my mind. I believe that suspected and indeed guilty terrorists should receive fair trials. I believe that they should receive exactly the same legal treatment as thee and me. I accept that these are difficult issues, and that there is a threat posed to us and our way of life by Al Qaeda, but I believe that it is precisely when it is hard to live by our principles that we should adhere to them - that these are the tests for which they were intended, and that it they were solely for good and easy times then they plainly weren't worth much after all (and in any case, as I have argued elsewhere, that threat is objectively less than that posed by the IRA in the past and certainly fails to justify changing our liberties and freedoms to anything like the degree seen in the UK).

The only way that habeas corpus, trial by jury, freedom from torture and so on are guaranteed for you is to insist that any and everyone in the United Kingdom gets exactly the same treatment that we would expect to receive ourselves. As soon as the powers that be are allowed to select who gets these rights, as soon as they are not rights but privileges, then we’re due for a recital of First, they came...

Postscript: You'll see that Coughlin, attacked by others since, has mounted yet another defence of himself over at the Telegraph. Not waving, but drowning...

By Alex Deane

A little tip for drivers

If (as happens to many people) you are sent a parking fine more than six months after the date of the alleged infraction, it is unlawful. Don't pay it.

By Alex Deane

Hat tip: a kindly former colleague in the law

Is there NOTHING for which they won't fine you?

Over at the Daily Record, a remarkable story - a man is facing a criminal trial after he was "caught" blowing his nose behind the wheel of his car.

Michael Mancini was given a £60 fixed penalty notice after a policeman decided he was "not in control of his vehicle" when he wiped his nose with a tissue.

The policeman who handed out the ticket was [name and shame of the day] PC Stuart Gray - the same berk who issued a £50 fixed penalty to a man who accidentally dropped a £10 note in the street.

Mancini said that he had "made sure it was safe" to blow his nose before taking his hands off the wheel - he was in stationary traffic and had put his handbrake on when he committed the alleged offence in October last year. He refused to pay the fine and now faces a trial later this year.

 

As I've said elsewhere, British society is becoming so illiberal it's as if normal life is becoming unlawful.

 

By Alex Deane

John Gaunt's case is an important test for freedom of speech

John Gaunt of talk radio fame is in court today for calling a local councillor a Nazi.

I believe in freedom of speech, for everyone, about everything.  Contentious issues are always likely to upset some people, but it is important that contentious issues are discussed.  So freedom of speech comes with the corollary that it is likely that some people will be offended. As per Toby Young. People in our society now, it seems to me, delight in the status of being offended, as if it gives them some sort of moral upper hand, the inviolable high ground in any dispute, rather than suggesting - as it does most of the time - that they're a bit thin-skinned. But even if they're genuinely upset and offended, I think that in almost all cases that's just part of the vicissitudes of life, and that we should get on with things rather than pandering to such concerns - because freedom of speech is too important a principle to be hostage to their feelings. 

I regret the chilling effect that will be felt in publishing and broadcasting even if Gaunt wins his case - and the prospect of him losing is an appalling prospect for those who cherish free speech in this country.  So we here at Big Brother Watch are rooting for John today.

As Shami Chakrabarti (whom I've recommended as an appointee to the Lords under the Tories over at Con Home) puts it - we fought the real Nazis so that we could be free.

So - sorry if you were miffed, Mr Councillor, but I'm with Gaunty on this one.

By Alex Deane

UPDATE: Gaunt wins round 1.  Good.

Privacy International deserves your support

Our friends at Privacy International are taking Virgin to the European Commission over their file snooping software.

I've expressed my doubts about the Virgin approach to privacy previously and you will see from this BBC report that PI are entirely in the right.

Big Brother Watch will be thinking about ways we can help in the fight against internet surveillance in the weeks and months to come. If you care about your privacy online, head over to PI and drop them a line.

By Alex Deane

I'm glad that Munir Hussain has been released

I was very glad to see that Munir Hussain has been released from prison, with the Court of Appeal shortening and suspending the sentence he was given after attacking intruders who broke into his home, tied up his family and held them at knifepoint (I've written about the case previously on this site).

Mr Hussain is calling for a change in the law to favour victims of burglary and home intrusion who act as he did in defence of their families, homes and property and I hope that he gets it. We ought to be entitled to defend ourselves in our own homes, and to know that the state will back us and not the criminal intruder when we do so.

Certainly, the issue is going to appear more on the political agenda as the election nears and there are powerful supporters of Hussain's position. Metropolitan Police Commissioner Sir Paul Stephenson commended those who "get stuck into thugs" and his comments were welcomed by Dominic Grieve who has been backing "have a go heroes" for some time.

By Alex Deane

We should allow cameras to cover court proceedings

Sky's John Ryley has announced that, after the forthcoming election, his organisation will be campaigning for television cameras to be allowed into our courts. 

Big Brother Watch is in total agreement with him. To make some obvious points (the first being an out-and-out cliché of course)

• Justice must not only be done, but must be seen to be done – faith in the legal system depends in part on seeing justice meted out fairly, particularly in this time of decline of faith in institutions

• As a reflection of the system of open justice we rightly allow members of the public to watch trials and court proceedings – cameras in the courts are just a reflection of that – there’s no possible logical justification for saying it’s fine for 20 people who can cram themselves into a gallery can watch, but the rest of us who can’t fit in can’t

• Existing provisions can be made for exclusion and/or anonymity where required

• People should be better informed of the workings of the justice system and there’s no better way to inform them about it than to show them.  The idea that our courts will be “dumbed down” by exposure to soundbite coverage needs to be weighed against the opportunity offered by TV cameras and coverage to actually show and explain the complexity of the system (and in any case, we get “soundbite” coverage already, only without the footage of the courtroom!).

• Cases will often be of public interest – why shouldn’t we be able to see what happens?  The burden should be on those wishing to keep these things secret, given that.

• The best evidence is preferred in court cases: it is perverse that the same doesn’t apply in allowing the reporting of what happens in courts – the best evidence of what happens is footage of actual events and arguments, not interpretation or glossing by others.

I say all that having practised for some time in criminal law, with some experience of the mechanics of reporting from court, filled public galleries, the resentment of families at being excluded by small seating areas, etcetera.  These things matter.  Sky's position is right and their campaign is right - we will do what we can to assist.

By Alex Deane

Trial without jury

Four men accused of involvement in a £1.75 million hold-up at a Heathrow warehouse in February 2004 will be tried by a judge alone after the Court of Appeal ruled there was a danger of jury tampering.

On the one hand it is good that these men will face what will hopefully now be an effective trial, without the possibility of jury tampering.  But on the other hand, and I think more importantly, it is terrible that we have had to modify our justice system in the face of thuggery rather than find ways to circumvent such dangers without giving up the fundamental principle of trial by jury.

Most obviously, the jury could have been sequestered in a hotel or "safe house". After all, this is not a complex fraud case that would go on for many months. Even if it was to take a long time, I'd still think that sequestration was merited.  Jury service is an important civic duty, for which sacrifices are more than merited.

By Alex Deane

Hat tip: MS

Judge imprisons a man despite openly expressing his own doubts about the conviction

Now that our CCTV report has been published, I am catching up on various stories from the past few weeks.  One that you may have already seen is this, over at the Times.

Philip Bowles, a businessman, has been imprisoned for an apparent failure to pay over £1 million in VAT. So far, so fair enough.  But the plot thickens.

Bowles lived with his assets frozen for three years, reliant on legal aid to help him fund his defence.  In those three years, access to his firm's records (vital to establish the defence) was hampered by this, and also by the fact that the firm was in administration.  So a vital report from a forensic accountancy investigation into his affairs, compiled gratis by a neutral accountancy firm, was not ready until after he was convicted on one of the three counts his faced.

The report concluded that, rather than having cheated the Revenue, Bowles had in fact overpaid.

Whilst the document was not available for the trial, was available by the time that it came to sentence this man.  His QC submitted that this vital new evidence, unseen by the jury, was so significant that the Court of Appeal ought to hear about it before Bowles was sentenced.  This is without precedent, but it must be right, mustn't it?  The material was relevant and probative and ought to have been seen by the jury in the course of the trial.  It is expert, neutral evidence, pointing directly to the innocence of the convicted man.  It has emerged late through no fault of the defendant's.

For those reasons, as you can read about over at the Times, the Judge openly expressed concerns about putting a man “in a place where he should not be if he is not guilty”, saying “I am loath to let this matter drag on but equally I am loath to put a man in prison if he shouldn’t be there."  And yet he nevertheless went on to sentence Bowles to custody, and he is now in prison.  The Judge, acting - I must stress - entirely in accordance with established rules, protocols, procedures and precedent, sentenced him to imprisonment, pending his now-inevitable appeal.

Behind the eye-catching headline about the judge's doubts, this may at first glance seem to be a narrow or technical question about when and how one can appeal one's conviction and/or sentence.  But it's one that has enormous ramifications for the individual in such a position - indeed, it has meant the difference for this man (who has no previous convictions) between being at liberty and being in prison.  As he spends Christmas behind bars, to him and his family that distinction will not seem narrow or technical at all.

Until his case is heard in the Court of Appeal, this 60 year old businessman with no previous convictions will be incarcerated at our expense rather than out and earning and supporting his family.  One must ask, in the circumstances - to what end?

I in no way mean to take a cheap crack at the justice system in which I have worked for some years but it seems to me that a legal system that lacks the flexibility properly to reflect the discovery or production of significant new evidence is a system in which the relationship between the state and its rigid procedures and the individual is unbalanced.  It is a system in which the very serious power to deny an individual his liberty is not fettered by appropriate caution and governed by good sense as it properly should be.  It is a system in need of reform.

By Alex Deane

Tiger Woods hands out injunctions

Tiger "suddenly it's all gone so terribly wrong" Woods has injuncted the British press to stop talking about his love life.

So good job - that's that barn door shut.  But the horse had not only already bolted, it had slipped out of town and is living under an assumed identity in Walton-on-the-Naze.

First of all, what real good could it possibly do, even from his perspective?  Does he think we won't hear the scurrilous rumours anyway?  Does he think that the commentary online, shorn of the relatively restraining influence of mainstream commentary, will be less tawdry and sensationalist?

Secondly, we've written before about restraining the press from reporting things, in the Carter Ruck context.- about how Britain's libel laws are harming journalism.  Here's it's slightly different, admittedly, as what's being injuncted is titillating rather than serious.  but there's an important point about the nature of freedom of speech to be made, and furthermore where this story lies on the titillating / serious scale is a judgment that I have made.  As long as you're happy having what constitutes your news decided for you by me, that's fine.  If you're not, then it's probably not fine.  The fact that I don't care about the goings-on in the life of Tiger "suddenly it's all gone so terribly wrong" Woods hardly means that nobody does, does it?  Nor are they necessarily interested in the story only from a cheap and titillating perspective.

Because there are people who will genuinely wish to know about his life, viewing him as an erstwhile role model they had looked up to, and viewing his pecadilloes, if true, as being symptoms of rank hypocrisy which rob him of that status.  His carefully manufactured, wholesome image might be thought to be punctured by these "revelations" and a discussion of such things interests some people.  Why shouldn't they be able to discuss them?  He chose to live in this way when it raked in millions - they might say - why can't we discuss it now that it's not quite so rosy? 

The extent to which serious journalism seeps into info-tainment is also something one should consider.  Scurrilous suggestions about Michael Jackson eventually led to criminal trial processes (albeit not a conviction, a fact perhaps connected with large out-of-court settlements).  Cheap slurs against Jeremy Thorpe, former leader of the Liberal Party, led to his trial for attempted murder.  John Profumo and Christine Keeler.  Multiple celebrities and drug trials/convictions: Robert Downey Junior. Pete Doherty. Matthew McConaughey.  And so on.  Viewed from that perspective, it is very hard to decide where "serious" journalism ends and trash begins.

All in all - my instinct is against any incursion of free speech.  Whilst I realise and appreciate that that right is not absolute, it is nevertheless very important in a free society and the threshold must be set very high to breach it.  Tiger "suddenly it's all gone so terribly wrong" Woods' I don't like the way they're talking about me hardly comes near satisfying that.

By Alex Deane

Imprisonment looming for man who does the right thing

Paul Clarke, an ex-soldier, found a gun dumped in a bag in his garden.  He took it to the police station.  Those, it seems, are entirely agreed facts.  Nevertheless he was arrested, prosecuted and has now been convicted under the strict liability rules of the Firearms Act.

The story has been widely discussed in in the blogosphere recent days. It is, it seems to me, a remarkably depressing example of the failings of our legal system. In the spirit of PMQs I would simply make the following points:

WRONG: policeman who arrests him

RESULT: employed by the state.

WRONG: prosecutor who charges him

RESULT: employed by the state.

WRONG: judge who directs jury to convict him

RESULT: employed by the state.

In fact, the only variation is this:

RIGHT: honest man finds gun and hands it in to the authorities.

RESULT: imprisoned by the state.

By Alex Deane

Our support for Vanessa Kelly

As we discussed yesterday, and as has been widely reported, a brave young woman named Vanessa Kelly has refused to pay a £75 fixed penalty notice (FPN) she was given for throwing bread to the ducks in her local park.

Vanessa and I have spoken at some length and she has made it clear that she has no intention of paying this ridiculous fine.

We are proud to support Vanessa and, if the Council does not back down and apologise as it should, then we will pay for the lawyers and the rest of it.

Some of our readers have told us that this action is typical of Sandwell Council. But even if one does not know this particular Council's track record, the story is in a way unsurprising, being typical as it is of the latest creeping incursion into our liberties, being but the latest example of excessive control by authority which we soon come to expect. And that expectation can change our behaviour - change our lives.

We all know that feeling, all too well.  It has a chilling effect on all human relations in this country, as we constantly feel that little fear - what if the Big Brother bureaucrat, the health and safety fool, comes knocking?

With this case, Big Brother Watch hopes to begin the fight back. 

A fight which is of course not only against the petty bureaucrats at Sandwell, but against the whole culture of highhanded, unaccountable, overbearing authority they represent.

My dream, my highest hope for this organisation, is to turn that fear around - so that in a few years' time, when about to wake the grandfather from his bed and take him to the police station for supposedly swearing, or on the verge of filling out that illiberal FPN, the jobsworths feel the chilling effect themselves - what if Big Brother Watch is watching?

By Alex Deane

Britain's libel laws are killing investigative journalism

This is our first guest post.

Willard Foxton has been a journalist for 6 years. He has published stories in papers around the world, and has covered everything from quaint welsh literary festivals to the Israel-Lebanon war. He recently presented the BBC's flagship documentary on the Madoff Scandal, "The Madoff Hustle".

My name is Willard Foxton, and I've recently lost my job.

I know what you're thinking: that's hardly unusual in this day and age. But keep reading, because I lost my job as a result of an injustice which threatens our democracy - Britain's appalling libel laws.

Until this month, I was the editor of the magazine arm of Chambers and Partners. You may not have heard of them unless you're a lawyer, but if you were a lawyer, you'd be impressed. Chambers and Partners ("Chambers") is a publisher which produces impeccably researched books and magazines on lawyers and the law.

When I started, the publisher told me he wanted me to revamp and relaunch Chambers' flagship magazine, Client Report. It had been a fairly dry quarterly magazine publishing surveys, but they wanted something more exciting, more investigative - a magazine exposing the great deeds and great misdeeds of the legal profession.

So Chambers Report was born. An investigative, bi-monthly title, with a specific focus on actually investigating things, rather than rearranging the words in law firm press releases. For a while this was all going brilliantly - for example, the magazine ran an in-depth exposé of a scumbag called Andrew Nulty who had become Britain's highest earning lawyer by stealing money from Miners dying of lung disease.

He was exposed, so hooray, triumph, joy - the villain fled the country, and to the best of my knowledge is now sunning himself on a heavily guarded yacht off the Spanish coast. So, there we were, doing good, exposing the truth, generally doing what journalists are supposed to do. And because our magazine was bankrolled by a highly respected millionaire publisher, rather than thin lipped, bloodless accountants who only care about the bottom line, I had the freedom to send my staff off to investigate all kinds of shenanigans that no-one else would touch, because of the fear of libel. We were looking into the solicitor's links with Trafigura, investigating shocking levels of sexism at city firms and probing the closely guarded secrets of the libel lawyers themselves.

Libel, for those who aren't law students, lawyers, or Guardian readers with Twitter accounts, is a type of law which says you can't say untrue things about people, and if you do, you have to pretty much crush them under a ton of money to make up for it. Well, that's what it's supposed to do. However, in the last 15 years or so, powerful people have started using Britain's archaic and creaking libel system to stop anyone saying anything about them, true or not. I was the victim of this law.

For those not working in the slowly dying print industry, libel is the big bad nightmare of most of the publishing companies we have left. The dull money men fear and hate libel in the UK - it is incredibly expensive to defend a libel action, and absolutely catastrophically expensive if you lose.

The best defence to libel is for the story to be absolutely true. So true it is all but irrefutable. So true, that only a frothing madman would sue you. This is the way I was taught at the BBC, and I brought the ethic with me to the new job.

The essence of the story is this - a large British law firm expanded lavishly in the Middle East, and this expansion had gone catastrophically wrong. We wanted to tell the world about what had gone wrong, and why it had happened.

The story wasn't written by me, it was written by one of my staff. However, I passed it fit for publication, as I felt it was an important story worth publishing. We fact-checked it extensively, included no single sourced stuff - we only used things which had been confirmed by senior people at the firm, mid-level people at the firm, and the firm's clients. We were sure it was all true.

We called up the firm in question, and asked them bare-facedly, "is all of this stuff true?" - and they harrumphed, and then a very senior figure in the firm grudgingly admitted that yes, it was all true. This is what in journalism is called "The Reynolds Defence" - we had asked the parties concerned if it was true, and they'd said it was. This makes your position much stronger in libel terms, as, well, if they say it's true, then you're set. We didn't receive a writ from the firm. This was because they accepted that the story was entirely true.

Still, there was one more thing that we could have done. There was one person who was universally blamed for a large part of the disaster. His superiors, his colleagues, his clients, even other practitioners in the region all confirmed that most of this was his fault. We had interviewed him, and surprise, surprise, his story was the only one which didn't fit the overall pattern. We had quotes about his involvement in every aspect of the disaster - from massively ambitious hiring policies, to scuppering multi-million dollar deals through ineptitude.

So, in those circumstances, I decided not to Reynolds this guy. We had a ton of evidence - and with lawyers it's become standard practice not to inform. Why? If we did inform him, the likely result would be an injunction, preventing us from printing, and another magazine stealing our story. As a bi-monthly magazine, whose primary competition was weekly, we constantly lived in fear of being scooped by our rivals.

I have since checked with the National Union of Journalists, and several libel lawyers  - all of whom I agreed I did the right thing, on both ethical and legal grounds, by not informing this individual. The smart among you will have by now realised that the Reynolds defence is all but unusable in situations like this - what for years has been a defence for libel has now become yet another weapon in the hands of the rich, powerful and unscrupulous. If you don't tell them, you are more open to libel law - if you do tell them, you story will probably be injunctioned out of existence.

However, in this case, the evidence was so strong (right down to senior people referring off the record to this individual as "the worst person we have ever hired"), I felt totally confident that we were safe.

I was wrong. Really, really quite wrong.

We received not only a libel writ from this individual, but also a list of pretty insane demands - which essentially added up to us republishing the article blaming everyone but him and flagging up a number of awards he had won. He also sent us a warning that in the United Arab Emirates, where he is based, slandering individuals of his status is a crime. A crime punishable by 2 years imprisonment and probably, we joked in the office, several hundred lashes.

Well, apart from the fact that Dubai was off my list of holiday destinations, we didn't have much to worry about. Because the story was absolutely true. 100% true. We had tons of interviews on tape. We had told the truth about someone. He could take it to court, and we would almost certainly win.

But there's the problem. To successfully defend my article, I would probably have had to have put my career on hold for a couple of years, and it will cost me (or my publisher) perhaps £25,000, I am advised, because if he lost, it would be almost impossible for a UK court to coerce my costs from him. And if I lost, then it will cost me roughly £500,000. Fighting and winning is bad enough; fighting and losing would be disastrous, even for a major publisher.

It's not just the publisher who could get sued either - because of the state of our libel laws, our distributors, our internet host, everyone even connected to us or the toxic-but-true article could be sued.

My employer, faced with this quandary, and the not-at-all-concerning prospect of lashings in a public square, decided to shut me down, moving back to dry, uncontroversial surveys, and fire me. He sat me down in his office, told me he respected me as a journalist - respected me so much, in fact that he wants me to keep writing for his publishing firm - but said that libel scared him far too much to take risks.

So there you go. A rich man in the emirates launches a libel writ against a UK publication for writing true things, and the publication bottles it. I lost my job; the journalist who wrote the story received a written warning about his conduct. Why? Because we uncovered and exposed the truth.

I think this story is illustrative of what our system of libel law does: it's not so much that critical stories can’t be written, but that they won’t be written twice. For most journalists (and their employers) the potential for a libel case is a powerful deterrent to criticism: the pieces aren’t worth the hassle. Most writers won’t take the risk of their jobs. Most publishers won't take the risk of losing the money.

And with libel laws like ours, who can blame them?

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A victory for free speech. But still...

As told over at Con Home, Carter Ruck mounted a pernicious attempt to gag reporting on Parliamentary proceedings but have been defeated. This, to understate things, is good. 

However, we ought to take a moment to reflect on that a clear principle definitively established in 1771 was, for a little time, breached in our country today. That it failed does nothing to undo the fact that we live in an environment in which some people see nothing wrong with trying to do so. 

Furthermore, notwithstanding its swift abandonment, some fool in our judiciary must have approved this Order. In our recent event with Douglas Murray, I defended our judiciary on the basis that, given that it is not overtly corrupt and not overtly incompetent, it ranks in the top few in the world.  In light of decisions such as these, one starts to wonder.

By Alex Deane

Restraining Orders

Today, an important shift in the balance of power between the individual and the state will take place.  More people should know about it.

Section 12 of the Domestic Violence, Crime and Victims Act 2004 comes into force.  The section amends section 5 the Protection from Harassment Act 1997 – the section that provides for restraining orders.

Yesterday, restraining orders could only be given to those convicted of an offence of harassment.  From now onwards, any person convicted or acquitted of any offence can be made subject of a restraining order, notwithstanding their acquittal.

So as of today, someone could tell a series of spurious and harmful lies about you to the police; you would be investigated and charged, whilst protesting your innocence; your case would proceed to court where you would, one hopes, be vindicated and acquitted on all charges – but then, in an important and deeply worrying shift of the burden of proof, the court could still restrain your liberty.  Because, presumably, the court reckons you might be up to no good, despite having just acquitted you.

That’s not the right legal test in this country.  The state, with all the powers available to it, has to prove a case beyond reasonable doubt.  It can either meet that standard or it can’t.  This new law is a transparent attempt to sidestep that ancient and proper hurdle to convicting people of criminal offences.

Do bear in mind when considering the seriousness of this that breaching a restraining order can be punished with up to 5 years’ imprisonment.

By Alex Deane