Tuesday, February 18, 2014 

The hope or possibility of release returns.

Say what you like about judges, and many, especially the tabloid press often do (as an aside, it's worth noting a certain Brian Leveson, in his role as President of the Queen's Bench division, was one of the presiding judges in this case), there are times when they are remarkably ingenious. Almost everyone thought the appeal court would accept the reasoning of the European Court of Human Rights' Grand Chamber, and duly find that those given whole life sentences must have some sort of body to which they could apply to have their sentence reviewed after a defined period of time. The Conservatives certainly did, floating the option of allowing judges to impose American style hundreds of years sentences, which could then be reviewed without release being any real possibility.  It seemed a great, typically Tory ploy: adhering to the ruling, if not the spirit of it, in much the same way as parliament has attempted to defy the court over giving the vote to some prisoners.

One indication that perhaps the government knew some sort of compromise was forthcoming, or had some faith in the case it was due to make to the appeal court, was that it suddenly seem to drop the above proposal, almost as quickly as it had raised it. The appeal court's rejection of the ECHR's ruling is based on what it says is a misinterpretation of the current laws: the grand chamber failed to take properly into account what section 30 of the 1997 Crime (Sentences) Act allows. Although previously it has only been used to release prisoners who are terminally ill, it can allow release in other circumstances on compassionate grounds also. The judges can't say what these circumstances might be, except that they will have to be exceptional given the fact a whole life term was considered necessary in the first place, but it still amounts to the "hope or the possibility of release" required, and to compatibility with Article 3.

Whether this is evidence of the perceived new attitude among some judges to the ECHR, no longer taking direction from Strasbourg as unquestionable, is more difficult to tell.  What it has done is both gotten ministers out of a problem, and given them a new one.  Had the appeal court agreed with the ECHR the easiest and best solution would have been to reintroduce the old system where whole life terms were reviewed after 25 years, only giving the power to the parole board or a judge rather than to a politician as was previously the case.  Instead the onus has been put back on the justice secretary, who now faces not just the likes of Ronnie Biggs applying for compassionate release on the grounds of ill-health, but the most notorious murderers and serial killers asking for the same, if that is they can point towards exceptional circumstances that have arisen since they were sentenced.  Nor will it be possible to simply dismiss such requests out of hand when the ECHR will be watching, even if it might well be a while before any such attempts to test out section 30 are made.

This itself depends on whether or not the ECHR accepts the appeal court's reasoning, should another appeal to Strasbourg be made.  It could for instance suggest that still more clarity is needed around section 30, precisely why it reached its decision in the first place, saying the appeal court hasn't in its view disproved its own analysis.  The other thing the ruling has done though, as Joshua Rozenberg notes, is to somewhat take the wind out of Chris Grayling's sails over the upcoming Tory manifesto plan for the reforming/dumping the convention.  No longer able to point to the court saying we can't lock up the worst of the worst for life, although it never said anything of the sort in the first place as both the appeal court and the QC for the government accepted, it leaves just the Abu Qatada palaver and votes for prisoners as the main grievances. A strong enough case for the Pavlovian anti-Europe Tories and tabloids certainly, but not for anyone who bothers to take an interest.  Judicial lawmaking or not, the appeal court's ruling could yet have far wider political consequences.

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Wednesday, July 10, 2013 

The usual posturing on the ECHR.

If nothing else, the ruling by the European Court of Human Rights' grand chamber that those sentenced to whole life terms must have at the least a slight hope of one day being freed, has thrown up an somewhat heartening statistical comparison.  We might lock up far more people than most of the rest of Europe, with 83,902 in prison or immigration centres last week (a figure that doesn't include those in either maximum, medium, or low secure mental health wards) but only 49 of those will definitively never be released.  Obviously, some of those given life terms with a minimum period they must serve before being able to apply for parole will also never be released, while others will die in prison, but it can't be said that judges lightly pass sentences that deny the convicted any chance of reform and rehabilitation.

It's understandable then that some have been angered by the ECHR ruling, unusual in that the grand chamber disagreed with the judgement handed down by the court itself, which found against Douglas Vinter, Jeremy Bamber and Peter Moore.  Politicians and commentators alike have made the point that in abolishing capital punishment, the compromise was that life sentences that meant life for the most serious offences would be the replacement.  In actuality though, it was only back in 2003 that all discretion was removed with the passing of that year's Criminal Justice Act, when the power to increase the minimum term of life sentences was rightly taken out of the hands of politicians.  With it also went the appeal after 25 years that those sentenced to whole life terms could make.  Oddly however, those who are considered terminally ill or incapacitated still make their appeal for release on compassionate grounds to the justice secretary, hence the controversy over the release of both Ronnie Biggs (still alive, although definitely incapacitated) and al-Megrahi (dead).  The system is also different across the UK: Scotland doesn't have whole life tariffs, while Northern Ireland still has the 25-year system.

The very existence of the whole life sentence poses problems which have never been fundamentally answered.  When there is no hope of release, there is little reason for the prisoner to cooperate with the system except to make what life they have slightly easier for themselves, and in turn, the prison officers.  We saw this just last month with Ian Brady's appeal to the mental health tribunal: whether he genuinely wants to return to prison in order to starve himself to death only he really knows.  What he definitely likes doing is challenging the system, which is what his "hunger strike" protest has long been about.  It's also possible it can have even grimmer side-effects: we can't know whether Dale Cregan's motivation for killing two police officers having already murdered two members of a local crime family was, as he said when he gave himself up, for the hassle the police had caused his family, or that he knew full well the net was closing in and he was likely to spend the rest of his life in prison anyway.

As Joshua Rozenberg points out, it wouldn't take much for the government to meet the court's ruling, whether it amended the 1997 act that provides for compassionate release, or established a system through which whole life terms could be reviewed either by the parole board or a judge after 25 years. It seems extremely unlikely that any of those currently on a whole life tariff would be deemed suitable for release, precisely because they have been used so sparingly. The real issues are two-fold: that a whole life term doesn't seem like one if there is the possibility of release, however remote, the same problem there is with the life sentence which really means life on licence rather than actual life in prison; and that this is in the view of some, another example of the ECHR interfering in laws that should be left to the discretion of member states.

However much it does go against decent liberal sensibilities, that there is always the possibility of redemption and reform, there are some cases where life has to mean life.  That doesn't mean there shouldn't be a system where even the hardest cases should be reviewed, but getting the message across that this won't mean the most depraved criminals could still walk free after 25 years is going to be incredibly difficult if not impossible.  This said, the idea this is going to be legislated on swiftly is laughable: it's now 8 years since the ECHR first ruled that some prisoners should get the vote, and as yet there still hasn't been an act facilitating it.

Instead we will get plenty of posturing.  Chris Grayling we're told wants further reform of the ECHR rather than the exit, while Theresa May apparently wants us out.  It doesn't matter that however often scrapping the human rights act is discussed or leaving the ECHR is proposed, we never hear specifically what it is about the convention that makes it beyond the pale.  We hear complaints about the right to a family life preventing the deportation of criminals as well as the whole Abu Qatada fandango, when the reality is that the objection is to the way judges, both British and at the ECHR interpret the law.  Getting rid of the HRA and replacing it with a "British" bill of rights which will almost certainly contain the exact same protections is not going to change things without the legislation being so specific as to be discriminatory itself.  Unless the Tories win a majority in 2015, and they're certainly not on course for one at the moment, we might eventually get round to putting back in place a system that until very recently wasn't regarded as beyond the pale.

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Tuesday, October 16, 2012 

The hacker and the hacked off.

At times, it's nice to be reassured that, despite everything going on in the world, whether it be our politicians telling us unless we give away all our hard won employment rights we'll be back in the economic dark ages, men jumping from the edge of space and not splattering themselves over a wide area, or one-trick ponies still being cheered on for performing their one trick, much is exactly the same as it has always been and it seems destined to stay that way.

Take the case of Gary McKinnon, for instance.  If you put aside for a moment the quite brilliant campaign ran in his favour, so successful that it drew in support from across the political spectrum, it seems an open and shut case.  McKinnon did hack into almost a hundred separate computers operated by various arms of the American state, although mainly military ones.  He has never denied doing so.  It's likely that their security was appalling lax rather than McKinnon was some kind of master hacker, and it's also dubious that he caused anywhere near the amount of damage they claimed that he did, which supposedly cost $700,000 to put right.  At worst, he seems likely to have put a few computers offline for about a day, until their operating systems were repaired, as one of the key claims made against him was that he deleted key system files, and might have also, as the US prosecutors claim, temporarily rendered over 300 US Navy computers inoperable in the aftermath of 9/11.

Nonetheless, the Crown Prosecution Service repeatedly decided that since the investigation into McKinnon's activities had begun in the US, and most if not all of the evidence of McKinnon's wrongdoing had been collected in the US, with most if not all of the witnesses also based there, it made perfect sense for the case to be tried there too.  It's also highly doubtful whether, if convicted, he would have been sentenced to anything like the lengthy term his campaign often referred to.  A plea bargain which McKinnon rejected would have resulted in a three year sentence, with the possibility that the majority if not the whole term could have been served in the UK.

All of which brings back memories of the "Natwest Three", those other oppressed innocents, all of whom are now back free in the UK despite the many hysterical claims about the treatment they would also face in the US.  McKinnon's case is different, firstly in that by any reasonable yardstick his is not as serious, as he didn't break any law to personally enrich himself (nor did he cause any significant damage to the US), and secondly in that no one denies he does have Asperger's syndrome.  It's also now clear that his mental health has suffered to such an extent that his extradition to the US could well result in his suicide, as five eminent psychiatrists have all found.  Theresa May is therefore quite right to decide that his deportation has the potential to breach his article 3 rights to protection from inhuman or degrading treatment or punishment.

Understandably then, the relatives of both Bahar Ahmad and Talha Ahsan, who also has Asperger's syndrome, are more than a little miffed, and wondering whether they were always at a disadvantage.  Barely 2 weeks after their deportation to the US, and someone who has effectively admitted his guilt and unlike Ahmad hasn't spent the last 8 years of legal process in prison has been saved on what looks suspiciously political grounds.   

The charges against Ahmad in particular have long been controversial.  While Ahmad admits to having operated Azzam.com, one of the earliest English language websites to become well-known for supporting various jihads across the globe, whether he was breaking any British law at the time seems dubious in the extreme.  Indeed, like with McKinnon, the Crown Prosecution Service found that there was insufficient evidence for him to be tried here, the difference being that the US only applied to extradite Ahmad after the CPS had decided not to bring charges.  The charges he now faces there also include "conspiring to kill people in another country", which seems to refer to his possession of details of the passing of the US Fifth Fleet through the Strait of Hormuz, and money laundering.

Ahmad is undoubtedly not as vulnerable as McKinnon, but that doesn't begin to justify the difference in treatment they've received.  Regardless of the truth of what happened when Ahmad was arrested, having received £60,000 in compensation courtesy of the Metropolitan police for the numerous injuries he suffered, only for a court to acquit the officers accused of inflicting them when it emerged that an MI5 bug in Ahmad's house picked up none of the shouting Ahmad claimed had taken place (the jury were not told of the payout by the Met), it seems bizarre that the government is prepared to stand up to the US for one British citizen with a campaign behind him and not for a couple of others when their case is highly similar.

May's decision to invoke the Human Rights Act in this case also brings into focus the government's determination to deport Abu Qatada to Jordan to face trial there in spite of the ruling by the European Court of Human Rights that the evidence against Qatada was almost certainly the product of torture.  Currently appealing once again to the Special Immigration Appeals Committee, we've learned that the evidence against Qatada in one of the plots he's accused of being involved in "is a bit thin", and that ministers sought a pardon for Qatada only for this to be rejected by the Jordanians.  More astonishingly, it seems one of the witnesses called for the prosecution accepts that the evidence against Qatada since struck out by Jordan was obtained through torture, meaning we were perfectly happy with sending someone back to an authoritarian state to face what would have been an unfair trial.

And with her move today, May seems determined to ensure nothing quite like this happens again.  From now on it will for the High Court to decide on appeals against extradition under the HRA, and not a minister.  While that removes any possibility of decisions being made on the basis of politics rather than the facts of the case, the introduction of a "forum bar" allowing the courts to block deportations if it would be fairer for trials to be held here seems to conflict with the difficulties the CPS will have with prosecuting cases when much of the evidence has been collected overseas and the witnesses live abroad.  Also a cause for concern is May's apparent intention to limit legal aid in such cases, especially worrying when it seems as though the government now accepts Qatada was justified in claiming he wouldn't face a fair trial in Jordan.

We also shouldn't rejoice much in the fact that May had to rely on the very act she and the Conservatives want to scrap to block McKinnon's deportation.  Those determined to repeal legislation which their friends in the press have for so long derided as only protecting criminals and terrorists have never let the facts get in the way before, and are unlikely to do so now.  A British Bill of Rights will, they'll tell us, protect us in the same way while ensuring that never again will we be taken for a ride.  Perhaps Babar Ahmad's family can testify as to how that feels.

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10/16/2012 10:50:00 pm | | | links to this post

Wednesday, February 15, 2012 

On the rights and hypocrisies of both Abu Qatada and The Sun.

Maajid Nawaz from the inconsistent Quilliam Foundation makes a good point over at the Graun when he says that by approaching the Abu Qatada story from a different angle, it in fact portrays our legal system in a very positive light. Here is someone accused by the most outspoken media sources of wanting every single one of us infidels dead, and yet we're doing our damnedest to secure from Jordan guarantees that he won't face evidence from torture should he be sent back there, in order to a satisfy a court that other European countries in similar circumstances have simply ignored. Rather than it being an outrage that we're letting someone described as a real threat walk the streets, even if it's only for 2 hours a day, it shows that we're not willing to sacrifice the very values that made our society strong in the first place for the sake of a little extra supposed security. As he says, one of the government's own (ridiculously broad) definitions of extremism covers those who attempt to "undermine the rule of law".

Less convincing is his following argument for how we we could limit Qatada's influence, that by highlighting his use of "manmade law" to maintain his status in this country we could undermine his credibility amongst the jihadists that regard any such complicity as heresy. As Nawaz undoubtedly knows, there is also a school of thought within extreme Salafi circles that considers it perfectly permissible to go against their traditional values, as long as through such actions the end result is a blow against the prevailing system they seek to destroy. This isn't to say that Qatada is an adherent to this takfirist way of doing things, even if has, as has been alleged, links to al-Qaida, who have decided on numerous occasions that killing Muslims is acceptable if the ends justify the means. More likely is that he simply doesn't want to go back to Jordan on the perfectly rational basis that it's far more unpleasant in prison there than it is here. Nonetheless, the concept of those who wish us harm using the very protections they themselves don't believe in against us is far easier to understand and complain bitterly about than the supposed damage his hypocrisy might do to his image as a respected extremist sheikh.

Which brings us, however tenuously, to the Sun. The Graun is reporting that "senior journalists" at the paper are considering launching legal action against News Corp's Management and Standards Committee for a potential breach of the Human Rights Act, as previous rulings have found that Article 10 gives sources similar protection to that of hacks themselves. This doesn't necessarily mean that in every instance newspapers wouldn't be forced to hand over material provided to them by sources if it was demanded by a court: the Grand Chamber of the ECHR found that such an order could still be justified "by an overriding requirement in the public interest". Whether this would cover the instances where the MSC has handed such information to the police is dubious, especially if it's true as the Guardian is now reporting that the Sun was keeping some of those leaking material to them on retainers worth thousands of pounds a year.

It could though be worth bringing a case, as Geoffrey Robertson suggested today in (where else?) the Times. Like with Qatada relying on laws he doesn't personally believe in to keep him in this country, so it seems that the same Sun journalists who have been condemning the HRA for years on the orders of their editors may well turn to it in an attempt to stop the Plod from breaking their doors down at six in the morning. While we could then describe this as a example of typical tabloid hypocrisy and humbuggery, we should instead perhaps take our cue from Nawaz: it simply shows that however much they complain about it, the Human Rights Act and the European Convention on which it's based protect both the best and worst in our society equally, just as it should be.

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2/15/2012 11:03:00 pm | | | links to this post

Thursday, August 25, 2011 

In which I admit to talking crap redux.

One of the not so great spectacles of the last few months has been seeing those who should know better and those who have no shame variously passing judgement on Dominique Strauss-Kahn. It's one of those cases where you can safely say that individuals on all sides share guilt: those in France, whether they be the philosopher buffoon Bernard-Henri Levy who sprang to DSK's offence in the way only a puffed up windbag can, or the others who assumed guilt based on DSK's only now reported serial womanising. Unfortunately, we can't even feel desperately sorry for Nafissatou Diallo: besides her lack of reliability as a witness based on dishonesty over her past, she was advised abysmally, as exemplified by the exclusive interviews she gave which only undermined her case yet further. In an ideal world, she would have had her day in court and a jury would have decided whose version of events to believe based on all the evidence. This is not an ideal world.

Deciding who's guilty and who isn't based on media reporting, or worse, on someone's past record, is daft. In the spirit of DSK then and in the second sort of mea culpa of the week, the acquittal of Learco Chindamo is welcome and refreshing news. Chindamo had not only been charged with the robbery of a man at a cashpoint, only four months after being released on parole, having served 14 years for the murder of the headteacher Philip Lawrence, it was also alleged he had intimidated the man by referring to the murder, something which suggested all those who had testified as to his changed, remorseful nature had been misled. OK, I didn't pass judgement based on his arrest, having believed such accounts, but all the same I felt the need to draw further attention to it before justice was done.

In a way, it does in fact show just how the justice system works when someone sentenced to life and released is then accused of a further crime: Chindamo has spent the entire time since he was arrested back in prison, and three previous trials collapsed for various reasons before he was finally acquitted yesterday, when it's unlikely the Crown Prosecution Service would have felt it was in the public interest for such expense and time to be spent trying a relatively minor crime had it involved those without such serious prior convictions. He will now have to go in front of the parole board again before he can be released, something unlikely to be a formality. As Frances Lawrence said, it can only be hoped that he has a happier, calmer and more productive future ahead of him.

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8/25/2011 11:59:00 pm | | | links to this post

Friday, May 20, 2011 

A new starting point on injunctions.

It would certainly be nice if following today's excellent report by the committee on super-injunctions (PDF), the media finally drop the entirely misleading claim that injunctions which anonymise the claimant(s) are anything approaching the equivalent of the orders sought by Trafigura and John Terry, both of which were subsequently overturned. As they point out, as far as they're aware only two "super-injunctions" have been issued post-Terry, the first of which involving Howard Donald of Take That was set aside on appeal, while the second was only in place for seven days to prevent the alleged blackmailer from being able to get their information out before they could be held in contempt of court for doing so.

As was expected, there's very little in the report to cheer the tabloids hoping for some sort of admission that the current situation is unsustainable and that parliament should legislate to decide where the balance between privacy and freedom of expression should generally lie. Interestingly, the one potential sop to the more concerned sections of the media which has been reported, that super-injunctions were once granted far too readily or too often doesn't itself seem to appear in the report, suggesting this was intimated by Lord Neuberger or Lord Judge at the press conference.

The recommendations the report does make are sensible and should be easy to put in place. It's long been absurd that no proper records have been kept of just how many such injunctions have been issued, making it incredibly difficult to ascertain whether there really has been a massive growth in the number of gagging orders applied for. Collecting the data and issuing an annual report will help to dispel claims that "justice" is increasingly being carried out in secret. Similarly, standardising the procedure to be followed when a "interim non-disclosure order" is sought in the future should help streamline the process, as well as ensure that third parties, almost always media organisations, know about the hearing and have a chance to challenge it from the outset.

The one potential difficulty with the latter is that, as we've seen, certain sections of the media cannot necessarily be trusted to keep the details of the cases secret after they've been gagged, let alone before the injunction has even been issued. This is admittedly not helped when judges are making such difficult borderline decisions, like that involving Fred Goodwin, where the line between the public's right to know he was having an affair at the time of the banking crisis with the possible knock-on effect it may have had on his work and his right to privacy is so narrow and fraught. Justice must be open and seen to be done, but it doesn't have to involve kowtowing to a press that continues to want to impose its own unbelievably hypocritical version of morality on a nation for the sake of their sales. We have long deserved a better debate on all of this, and today's report will hopefully provide a new starting point.

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5/20/2011 02:05:00 pm | | | links to this post

Monday, May 16, 2011 

Anything else going on apart from...?

"It's been a week where you sit there thinking, is there anything else going on in this country apart from a bunch of z-list celebrities having sex with each other?"

So asked Ian Hislop, in what was to be the last episode of Have I Got News for You to feature Angus Deayton as host. It was also the same week in which Ulrika Jonsson said that she had been sexually assaulted by a well-known television presenter, who was inadvertently named by Matthew Wright shortly afterwards. The past week has seen a very similar situation, albeit it slightly hampered by how we're not supposed to know who some of those z-list celebrities are.

If nothing else, you have to hand it to the tabloid press: it often accuses the supposedly more serious-minded broadcasters and papers of hypocrisy on the grounds that they more or less duplicate their coverage, albeit under the guise of poking fun or discussing the potential implications for press freedom. There's been no such back-biting this time, for the reason that they've been amazingly successful in turning what have been only the latest incremental development in privacy principles into an issue of freedom of speech so vital that the prime minister has intervened on more than one occasion to declare his unease. Under the banner of "super-injunctions", almost none of which the recently issued orders have actually been, they've campaigned vigorously for their right to print more or less what they like about prominent individuals and what they might have been up to, invoking morality, censorship, democracy and almost anything else they think might win more supporters to their cause. Helped along by social networks and the difficulty of removing information once it's out in the wild on the internet, as well as a growing feeling, especially among those who live their lives online and hide very little about themselves from anyone who cares enough to look, almost no actual attention has been paid to the details of the cases themselves, the way the tabloids have personally fought the injunctions, or indeed to just how open they've been about why they really want to return the the height of "bonk" journalism as practised back in the late 80s.

Indeed, just how limited the general debate has been was showcased on Newsnight on Friday, where Hugh Grant and Charlotte Harris faced off against Helen Wood and Fraser Nelson. Grant, fresh from bugging a News of the World journalist, came across exactly you suspect as the tabloids would like: outraged that anyone should know absolutely anything about him without his express permission. Much as I find the argument that if you don't want to end up on the front page of a newspaper you shouldn't sleep with prostitutes to be self-serving in the extreme, Grant did his best to prove it, arrogant throughout while attempting at times to play the victim, demanding Nelson to condemn certain practices which he had never condoned. Charlotte Harris, who must be much more convincing in court than she has been in any of her innumerable television appearances, gave her questionable and limited legal analysis, while Fraser Nelson, who despite always looking incredibly pleased with himself seemed to be ignorant of many of the details of the recent cases. Then there was Wood, called on just twice during the entire programme, who looked distinctly uncomfortable throughout.

She wasn't helped by a quite incredible second report from Kate Williams, which happily alleged that injunctions were returning us to the Victorian era where rich men could do as they please and the women were left voiceless, as it galloped through over a century of sexual history in a couple of minutes. Solipsistic doesn't quite adequately describe it, and poor old Helen was so confused that she clearly hadn't quite grasped what the sexual revolution was when asked whether it had worked for her. Considering she was on Newsnight talking about working as a high class escort, and indeed has been paid a considerable sum having sold her story vis-a-vis Wayne Rooney, even if she can't identify another "high profile" male she performed sex acts on, it's hardly resulted in her penury and exclusion from society, referred to as a tart and hooker in the same press she made a deal with or not.

Just how potentially misled we've been by the self-serving reports in the tabloids, gobbled up and regurgitated whole by the rest of the media is demonstrated by the interim judgement in the case involving Imogen Thomas and the anonymous, although widely named footballer. Contrary to Thomas's (literal) sob story of how her name's been run through the mud despite not ever wanting to sell her story, Mr Justice Eady relates the footballer's side of events. According to him, the whole thing appears to have been a set-up between her and the Sun, where she demanded to meet the player on two separate occasions at different hotels, both times asking for money with the obvious implicit threat being that otherwise she'd sell her story. Each time it seems the paper was waiting to take pictures of their arrivals: if the player paid up, then she got her money and the paper still had the story with no evidence that Thomas herself had been involved; if he didn't, then she would presumably have been reimbursed by the Sun. The footballer additionally says that rather than the six-month long relationship Thomas claims, they had only met three times between September and December last year. While that hasn't been contradicted by Thomas's representatives, she did later deny that she'd either asked for money or had "caused" the Sun's initial report last month.

While Eady is only presenting the case as it currently stands before any trial, the footballer's side of the story is all too plausible. It also fits with the pattern that rather than most of the injunctions being issued after individuals getting wind of a story or being contacted prior to publication, there is often also an element of blackmail involved, as there was in the controversial ruling where Eady issued a contra mundum injunction, as well as in that involving Zac Goldsmith. Eady, clearly at pains, goes on to point out despite much of the comment that the current process has been built around two major rulings by the House of the Lords, with four even more recent cases where the Lords refused permission to appeal (paragraph 21). Moreover, as he writes, in cases where blackmail is either alleged or where it looks to have conceivably been involved, anonymity has been previously given as a "matter of public policy". It's only now, when all the details have not even begun to be made public that this has been questioned.

Damningly, as Eady goes on, the Sun's representatives didn't even attempt to argue that any story would be in the public interest. Instead they simply claimed that Thomas's rights to freedom of expression under Article 10 of the European Convention on Human Rights were being denied by the footballer's "reasonable expectation of privacy". Worth quoting in full are the two final paragraphs of his ruling:

On the evidence before me, as at 14 and 20 April, I formed the view that the Claimant would be "likely" to obtain a permanent injunction at trial, if the matter goes that far. As I have said, it remains uncontradicted. The information is such that he is still entitled to a "reasonable expectation of privacy" and no countervailing argument has been advanced to suggest that the Article 10 rights of the Defendants, or indeed of anyone else, should prevail. There is certainly no suggestion of any legitimate public interest in publishing such material.

Moreover, in so far as Ms Thomas wishes to exercise her Article 10 right by selling her life story, she is entitled to do so, but only subject to the qualification that she is not thereby relieved of any obligation of confidence she may owe, or free to intrude upon the privacy rights of others: see e.g. McKennitt v Ash, cited above, at [28]-[32] and [50]-[51]. In so far as there are any conflicts of evidence or of recollection between her and the Claimant, it will be for the court to resolve them at the appropriate time. I will discuss with counsel whether it would be appropriate to order a speedy trial for that purpose.

This more than rebuts Thomas's claim afterward that she was being denied the opportunity to defend herself: if she wishes at length to contradict the footballer's version of events, then she can and hopefully will, albeit without naming him.

If this latest ruling were the exception to the rule, then the campaign waged over the past few weeks would be worthy of support. As previously argued, some injunctions have been questionable in their sweeping nature, but far too often as the Guardian pointed out they've been confused with our libel laws, which are currently under review. Despite having emitted such sound and fury, in many of the cases the tabloids don't even pretend that the public interest will be genuinely served by their serving up of the celebrity shags of the week; instead they make the highly dubious argument that it's such sensationalism and gossip that has enabled them to provide other journalism and campaigns which have benefited the wider public. Deprived of them, they'd wither on the vine and die, especially now as the internet has so eaten into their market.

Even in this time of declining circulations, the Mail sells over 2 million copies a day while the Sun clocks in at just under 3 million. Neither have suffered the massive falls of their competitors, and both will continue to be printed for a long time to come. They might fear the effect of kiss 'n' tells being completely choked off, yet even under the most extreme reading of Eady's latest ruling it seems laughable that every z-list celeb will be lining up for an injunction to cover up their dalliances. As morally (and hypocritically) outraged as the tabloid editors and long-time hacks undoubtedly are by the turn of events, it's cover as much over the phone-hacking scandal as it is an attempt to provoke David Cameron into doing something about it. What's more, the ultimate victory has been in making everyone delve into this world of who's shagging who, to make those of us who'd rather just let them get on with it have to dive into the depths of the "privacy" debate. Where Orwell once wrote of the decline of the English murder, so too they want to forestall the decline of the English affair, and they'll try everything in their power to do so.

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5/16/2011 11:59:00 pm | | | links to this post

Tuesday, May 10, 2011 

Injunction hysteria and the failure of Max Mosley.

It's difficult to shake the feeling that this week's latest outburst of injunction outrage on the behalf of the tabloids and certain sections of what was once the broadsheet press wasn't so much to do with the mysterious InjunctionSuper tweeter (twatterer?), although they provided the excuse to clear the front pages, and much more to do with the fear that Max Mosley would triumph with his case at the European Court of Human Rights. Having so firmly established that philanderers and blackguards are effectively subverting democracy itself by stopping the popular press from reporting on their exploits, had Mosley won we would now be drowning in a veritable sea of anti-European, anti-liberal, anti-'uman rites venom, the death knell of the British media as we currently know it all having been all but sounded by an unelected elite sitting in judgement from afar.

Happily, and just to confound the caricature of the judges in Strasbourg as often depicted as interfering, foreign lunatics and incompetents, they quite rightly decided that Mosley's Article 8 rights had not been breached by this country lacking a mechanism through which newspapers must inform prior to publication those individuals they plan to run an expose or similar about. This wasn't because in Mosley's personal case there hadn't been a quite despicable breach of privacy, it was more that the circumstances were something approaching unique. As Justice Eady made clear in his ruling back in 2008, the supposed "Nazi element" of Mosley's spanking orgy was a construct aimed at giving the story a public interest defence, even while he accepted that the paper's editor and Neville Thurlbeck thought there was such a flavour, not least because they saw what they wanted to see. Had the paper simply gone with the spanking story and informed Mosley prior to going to press, an injunction would almost certainly have been granted had he taken legal action. Relying instead as the paper did on the story being totally in the public interest as it exposed the son of the fascist leader Oswald Mosley involved in sadomasochism with Nazi overtones, the ECHR's reasoning is that even if there had been a stricture where the press have to inform those they intend to write about he would have been unlikely to fall under its terms.

The Guardian, which while not exactly rallying to the side of the tabloids has been quietly concerned over the recent supposed spike in injunctions, made a third-party submission to the court which made the obvious argument against just such a requirement as Mosley was asking for: that rather than covering only cases where personal privacy was involved, it would apply across the board. While it's mainly standard journalistic practice to inform individuals or companies that they're about to have a report on them published, not least to give them an opportunity to comment, the Trafigura scandal makes plain just how some will seek to have the most destructive, illegal behaviour swept under the carpet. The ECHR in its conclusion made clear that what Mosley was asking for has the potential to have a "chilling effect" on the right to freedom of expression. Along with doubts over just how effective it would be and how such a "public interest" mechanism would work, there was really no other option than for the court to make clear Article 8 does not demand a legally binding pre-notification requirement.

There is no doubting however just how successful the tabloids have been in turning their woes into a matter of seeming immediate national importance. Away from the very few number of cases where the granting of an injunction has been questionable, or where the terms have been arguably far too broad, most have just been typical tabloid tales where the person involved is as much being humiliated and embarrassed because of their fame rather than down to the heinousness of their actions.

Take for example the supposed "world famous" actor, who if he is who we're led to believe I had never heard of before (he's not Ewan McGregor, despite initial rumours) and his dalliance with Helen Wood, the sex worker who did a number on Wayne Rooney. One of his pleasures apparently, again for the reason that we don't unequivocally know, involved a dildo being "used" on him. Such a detail, while not exactly out of the ordinary, is the kind of fact that people remember and snigger about. It is the sort of thing that leads to children and relations being bullied and similarly humiliated. This person is not any kind of direct role model to children, as the tabloids claim footballers and other prominent stars are, nor does he make money out of selling his image as such. He's simply a man who because of his acting work is considered fair game and is grist to the mill. As prostitution itself is not illegal (soliciting is) he's committed no crime other than one of stupidity. There is no public interest in him being exposed in such a way, yet we apparently "know" about it regardless of the injunction.

Let's not pretend either that Twitter, blogging, social networking or the internet on their own make such injunctions and potentially a privacy law untenable and unenforceable, as has been claimed. The rumours about the applicants all have to begin somewhere, and it's more than fair to say that the newspapers themselves have been getting incredibly close to breaching them on their own, dropping almost excessive hints in some cases. Private Eye, which always faces both ways when it comes to the tabloids and their obsession with the sex lives of the rich and the famous ran a "lookalike" in its last issue in which Wayne Rooney was compared with the man alluded to above. Elsewhere it all but named the footballer involved with Imogen Thomas, while reiterating how the papers had covered the injunction involving the TV man who had an affair with a co-star, described more than once as "shameless".

What is apparent is that even if they end up not being able to publish a story which might shift a few extra papers, the tabloids seem to be determined that it gets out there somehow. As some predict, this latest outbreak of belly-aching about how unfair it is not to be able to ruin lives will probably peter out. No one seriously expects the government, even this one, to legislate, not least because it would have to almost certainly draw up some privacy protections which the tabloids would complain bitterly about even while removing the wider threat to their profit model. Judges will continue to cop the flak for making nuanced decisions which politicians are too cowardly to get involved with. Who though could possibly blame them when we have such a wonderful, law-abiding media?

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5/10/2011 11:59:00 pm | | | links to this post

Thursday, April 21, 2011 

Playing the victim in the privacy wars.

Whenever the tabloids start to play the victim, it ought to be apparent that there's something far more vital at stake than the freedom of the press: that other enduring freedom, to make money out of the misery of other people. If you've been cynical enough to think there might be something else afoot that's encouraged the so-called popular press to spend much of this week complaining bitterly about how they're not being allowed to continue to focus on shag 'n' tell journalism to the detriment of everything else, then you'd be right. Even if the phone-hacking scandal hasn't (yet) touched any other newspaper than the ever egregious News of the Screws, they know full well that the longer it rumbles on the more likely the same celebrities and politicos now demanding recompense from Murdoch's minions will turn their attention onto them. Why else after all would they have done so much to either ignore or play down the NotW's sad troubles with the Metropolitan police if they didn't themselves know there would be be similar discoveries if their own email records were exposed to the same intimate attention? It certainly isn't the old Fleet Street spirit of solidarity, of dog not eating dog, which has always been something of a myth.

Anything then to deflect from how so much of tabloid journalism is currently under scrutiny. Politically wise or not, considering the potential for revenge to be taken in the most damaging of ways, Ed Miliband's call for an independent review of the Press Complaints Commission and newspaper practices once the police investigation into the Screws has finished was both brave and welcome. It must have also been alarming to tabloid editors and their owners, not so much because they fear such an inquiry taking place, something doubtful to happen when the levels of mutual sycophancy between themselves and David Cameron are still high, more because it's a sign of just how precarious their craft is becoming that any front line politician feels bold enough to call for something they would have usually not touched with the proverbial ten-foot barge pole.

The resurrection of the issue of super-injunctions for mostly specious reasons should be reasonably apparent due to how the cases the tabloids are complaining about are err, not super-injunctions, otherwise they wouldn't be able to complain about them at all, as they're meant to ban the press from even mentioning they've been gagged. Instead the courts have recently favoured the slightly subtler form of injunction which allows the media to make clear that they've been stopped from printing a story, and even to go into some of the relevant details which could potentially identify those involved. Hence we know a married footballer has stopped the press from splashing on his affair with the fragrant Imogen Thomas, a former Big Brother contestant who's made her living since appearing on the show by exposing her plastic breasts for money, while a "world famous" actor who paid for some sort of sexual activity with the equally lovely Helen Wood, an escort universally known in the gutter press as ROONEY TART/HOOKER for her past dalliance with the Manchester United striker has also been saved from the ignominy of having his poor taste in sex workers revealed.

Justifications for informing the world that famous people tend to be just as human as the rest of us range from the moralistic, such as Paul Dacre's notable attack on Mr Justice Eady for stopping newspapers reporting on the "unimaginable depravity" of the likes of Max Mosley, to how it enables superstars to continue to present themselves as role models to the young while profiting from it through marketing deals, all the way along to the usual press freedom arguments. Others still are now pointing to how unfair it is on the women involved that they can't either protect themselves or sell their stories, as if the likes of Imogen Thomas or Wood are somehow damaged further having usually informed the media in the first place. Excepting Wood, it also ignores their own responsibility for involvement in the affair, even if their identities don't always stay hidden. In a recent case the News of the World had intended to claim that a television presenter had been sacked after the fellow host she had conducted an affair with had requested the break up of their partnership, only for her to support the seeking of the injunction.

It would be much easier to respect the principle of "publish and be damned" if the stories the media does manage to get into the papers were reported accurately. Not content with the already sensational likes of Mosley conducting spanking sessions with dominatrices, the Screws had to sex it up further (arguably to give it something resembling a public interest defence) to Mosley having a Nazi orgy. The John Terry saga of last year took on a rather different air when the quietly determined Vanessa Perroncel managed to extract apologies from both Sunday newspapers involved, more than suggesting that the claims of an affair between the two were inaccurate. Terry has since been restored to the England captaincy, the role he lost after the tabloids called for him to lose it following his "infidelity".

This isn't to suggest there aren't potential problems ahead should the law be more contentiously interpreted by judges. A judgement published yesterday by Justice Eady seems to go a step further than anything so far: in a case he describes as an example of "straightforward and blatant blackmail", he imposed a contra mundum injunction, forbidding not just the national but worldwide media from identifying those involved. These have only formerly been issued in cases where those seeking them were not just at risk of having their right to privacy under the European Convention of Human Rights breached, but their article 2 and 3 rights also; John Venables and Robert Thompson, the killers of James Bulger had their new identities protected in such a way, as did Mary Bell. Regardless of the solid medical evidence suggesting the health, including the mental health of those involved has been affected, this could well be a step too far: it's one thing to protect those who have committed terrible crimes as children from being hounded for the rest of their lives or even killed by banning the publication of their whereabouts and names; it's quite another to do so over a case which involves "intimate photographs and other information". Moreover, it's bound to lay down the gauntlet to media outlets overseas who've graciously respected the past rulings who will be far less likely to do so when the stakes are nowhere near as high; and after all, what exactly can they be threatened with which might make them think twice before doing so?

Despite David Cameron today voicing his "unease" over the recent injunctions, it's still manifest that judges are not making the law, merely interpreting it as best they can and following rulings which have set precedents, usually delivered either by the highest court here or by the ECHR. It's also clear that politicians still seem unlikely to be willing to get involved in something which will mean them rather than judges deciding on how to balance the competing rights of privacy and freedom of the press, whether or not they have the tabloids screaming at them to do something or not: in this instance there seems to be too much to lose either way. Having spent so long complaining about vested interests and their role in British life, it's would be nice if the tabloids recognised theirs in preferring exposure over privacy. It's only when it comes to their own newsrooms that they opt for the latter.

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4/21/2011 09:48:00 pm | | | links to this post

Tuesday, February 01, 2011 

Scum-watch: A charter for bullshit.

It's a relatively rare occurrence for any newspaper to move its main editorial, the thundering voice of its authority, onto its front page. Those who've mercifully missed seeing today's Sun might well then be surprised to learn that it chose today to do just that, even if it wasn't the paper's main story. Has the paper weighed in on the turmoil in Egypt, calling on the hated Hosni Mubarak to go, Rupert Murdoch being a long noted advocate of freedom and democracy? Or has it instead passed comment on a topic much closer to the paper's heart, the latest profligacy and avarice being displayed by some of the nation's football clubs?

The answer is neither of these things. No, something much more important is occupying the attention of the Sun's leader writer, and that is of course something affecting the Sun itself first and foremost. Yesterday the Court of Appeal ruled that a sportsman granted an injunction preventing the publication of allegations against him could remain anonymous while the outline of what he was accused of, without naming those involved, could be reported. This overturned a ruling that had previously reached the opposite conclusion: that the sportsman could be named but the allegations against him could not.

For those of you still awake, fascinated as you doubtless are by the legal ramifications of yet another asinine legal battle between a footballer accused of cheating and a tabloid barred from splashing on the juicy detail, it's understandable why the Sun and tabloids in general are so angered by the ruling, especially as it looks as if it could become key in the emerging case law surrounding super injunctions and the balancing of articles 8 (right to privacy and family life) and 10 (right to freedom of expression) of the Human Rights Act against one another, although not for the reasons the Sun disingenuously expounds, which we'll come to. While the name of someone alleged to have done something wrong can sell newspapers or bring in hits, even if what he or she's accused of isn't allowed to be discussed, that's not so much the case where the details can be alluded to in outline but the name itself has to stay secret. Anyone can have had an affair or slept around while in an apparently happy relationship, and many do; it's only when the names come out that anyone really becomes interested, or at least pruriently interested, which is essential to understanding the entire thing.

The real reason why the tabloids were opposed since the outset to the insertion of the European Convention on Human Rights into British law was that Article 8 had the potential to undermine a substantial part of their business model: the exposure of petty philandering and kiss 'n' tells. And so it hasn't really come to pass. As the last few years has shown, just as some celebrities and sports personalities have been able to stop the tabloids from splashing on their sexual escapades, others have not been so lucky. The Sun's attempt to frame this latest ruling as a "major blow to freedom of speech" is nonsense: it changes nothing on the actual score of the press being stopped from reporting on infidelity in general.

Instead it pounces on one of the very particular details to this latest case. JIH, as we can only refer to him, had already been caught with his trousers down once by the press, with the story appearing without him becoming aware of it beforehand or being warned by the newspaper. He did however get wind that another woman he is alleged to have had an affair with, referred to in the ruling as "ZZ", was about to sell her story to the News of the World, prompting him to take out an injunction. It's worth noting that this entire series of appeals concerning what could and could not be reported about the injunction stems from the initial agreement reached between JIH and News Group Newspapers (the parent company of the Sun and News of the World) which was in fact more restrictive than either that reached by the High Court or the Appeal Court yesterday, as neither the details nor JIH's name could be published. It was the High Court judge who felt he couldn't agree with that, as it took no account of the rights of the public. Unless that was a ploy on the part of NGN's lawyers, they were prepared to deny the public any right to know, something they're now pretending is what they've cared about all along.

In his judgement, the master of the rolls Lord Neuberger decided that the fact JIH had previously been exposed was crucial to the case, for the reasons he sets out:

In this case, I consider that the crucial factor is the previous story about JIH's alleged liaison with YY, which had already been published, without JIH's prior knowledge or permission. That earlier story involved a very similar allegation about JIH to that which NGN was proposing to publish as a result of ZZ's allegations. If we permitted JIH's identity to be revealed without permitting the nature of the information of which he is seeking to restrain to be published, then it would nonetheless be relatively easy for the media and members of the public to deduce the nature of that information: it would be a classic, if not very difficult, jigsaw exercise. It is true that the very fact that this decision means that we are revealing that JIH is a person about whose alleged sexual activity a previous story has been published, and that this will immediately narrow the field for those seeking to identify him, but, in my view, that point is of limited force: there have been quite a few stories of this nature relating to different well known people published in the printed and electronic media in the past two or three years.

This is definitely the case: while there's been the usual speculation you'd expect, no one seems to definitively know who JIH is despite the fact that he's been exposed before narrows it down slightly. Clutching at straws as ever, the Sun has turned this round, both in its article and leader to suggest that this in effect creates a "cheater's charter", whereby those previously ratted out or shown up have more protection than those who haven't. As Edward Craven points out in a excellent analysis of the ruling, this isn't necessarily true:

However the “efflorescence of anonymity orders” (to use the words of Lord Rodger) and the fundamentally fact-sensitive nature of the issue make further litigation inevitable. This is a contentious and rapidly evolving area of the law where important matters of principle frequently collide. Judges, journalists and lawyers should therefore expect further debate and discussion in the coming months.

Moreover, the Sun's claim in the article that the public are being prevented from receiving information that is true is also dubious to put it mildly. While it doesn't seem the case that JIH has attempted to sue regarding the first reports of his infidelity, he wasn't given any opportunity to respond to the allegations prior to their publication. That he did take one out when he became of the second set more than suggests that he contests their veracity.

The language used in the Sun's leader (reproduced in full at the end of this post) is incredibly hyperbolic even by the standards of tabloid editorials dealing with privacy. The ruling stands "morality on its head", "licences depravity" and through the culture of secrecy it promotes "undermines public life by allowing vice and hypocrisy to flourish". While it reminds of Paul Dacre's verdict on Max Mosley's spanking sessions, which he decided constituted "unimaginable depravity", the only real public interest defence which the Sun can point to is that the "public [have a] right to know the truth about celebrities who hide shameful secrets behind a hypocritical veneer of respectability." The problem is that even as the public continues to consume such tales of depravity and vice, they no longer seem to care about those involved unless it breaks a specific subset of laws. A case in point is Wayne Rooney, who last year was not only exposed for a second time as cheating on his wife with a prostitute, but who also shortly afterwards got a huge pay increase after he threatened to leave Manchester United. He might have been criticised in the short term, but the club's fans still chant his name with the same passion as they always have.

The Sun's argument would also have more force if those the tabloids have previously exposed had definitively been involved in such behaviour. Last year, months after John Terry lost the captaincy of England over his apparent affair with the girlfriend of a team-mate, a number of papers quietly apologised to Vanessa Peroncell over their coverage, more than suggesting that the allegations were in fact far from the truth. Similarly, its claims that it creates two-tier justice is laughable: exactly how many of those without fame or fortune are exposed in the national press over their sexual exploits, without first making themselves known in some way to the media? The resort to the slippery slope argument, that tomorrow it could be a cheating politician who attempts to protect the public becoming aware of their antics is also clutching at straws: not only as affairs in politics have long ago became "private matters" until they start affecting the way ministers do their jobs, but because those in government have never before resorted to the law to prevent such revelations, and show no indication of doing so now. What it comes down to beneath all the bluster is, as it always has been, pure financial self-interest, and the irony is that as personal privacy in the digital age becomes ever more confused and broken down, that has never been more apparent.

*The Sun's leader in full follows:

THE more a cheating celebrity drops his trousers, the more the law will cover up for him.

That is the disgraceful outcome of yesterday's Appeal Court ruling allowing a well-known sportsman accused of cheating on his partner with two different women to keep his identity secret.

This "Cheats' Charter" is a terrible blow to the public's right to know the truth about celebrities who hide shameful secrets behind a hypocritical veneer of respectability.

Showbiz personalities, sports stars and politicians now have an incentive to carry on betraying their partners - because the more they do it, the more courts protect their identities.

It also creates two-tier justice. If you can afford top lawyers you can buy secrecy denied to others.

Yesterday was the day Britain became a judicial banana republic.

The nation that created the rule of law bent its knee to a sportsman who fornicates his way through life like a dung hill rooster.

This wrong ruling stands morality on its head. It licences depravity.

Along with the rise of the superinjunction, this is another alarming step towards secret justice.

Superinjunctions are court orders sought by the rich and famous to gag newspapers. They are so strict papers cannot even tell their readers a superinjunction has been granted.

This culture of secrecy undermines public life by allowing vice and hypocrisy to flourish while papers are powerless to expose it.

It speaks volumes that Westminster stands by as Press freedom is eroded.

European privacy rulings, used abroad to provide cover for corrupt public figures, are being brought in through the back door.

Today it is a cheating sports star hiding behind anonymity. Tomorrow it could be a cheating politician.

It is vital for democracy we know the names of those who go to court to have newspapers silenced.

Once a nation starts down the road to secret justice, there is no telling where it will end.

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2/01/2011 11:27:00 pm | | | links to this post

Thursday, November 25, 2010 

In which I admit to talking crap (or a word on Learco Chindamo).

I was, in hindsight, rather setting myself up for this:

All the signs are however that Chindamo is that rare thing - a truly reformed character. Giving a convicted killer the benefit of the doubt is always going to be difficult, even when Frances Lawrence has herself apparently now forgiven him and magnanimously hopes for the best. Chindamo has to live up to what is expected of him, but to do that others have to take him into their confidence as well. The Sun, the rest of the media, and the public should now give him the opportunity and the space to do just that.

Oh. Obviously, we aren't aware of the full facts, it could turn out that it's been a case of mistaken identity, a malicious complaint or otherwise and so we should reserve proper judgement. Nonetheless, if he is subsequently convicted of an offence, the people he has let down most are not that those that saw the best in him and believed in his sincerity, but those who find themselves in a similar position, having committed a heinous crime and now desperately trying to convince the authorities that they are safe to be released back into the community. It's they that may well feel the chilling effects the return of such a notorious criminal to prison will almost certainly have on parole boards.

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11/25/2010 11:27:00 pm | | | links to this post

Monday, July 19, 2010 

Scum-watch: The release of Learco Chindamo.

Back in 2006, the Sun was tipped off that the killer of headteacher Philip Lawrence (thanks to GrahamH over on the Sun Lies for noticing that I somehow managed to mix up Stephen and Philip Lawrence, in probably the most idiotic, senseless, beyond redemption mistake I've ever managed to make), Learco Chindamo, was being allowed out for a day unsupervised from his open prison, part of the usual program of preparing prisoners for their eventual release, of which Lawrence's widow had been informed, if not told of the exact nature of his day out. Their article, headed "OUTRAGE", was under the by-line of John Kay, the Sun journalist convicted of killing his wife in a failed murder-suicide pact. Despite describing him as "not having a care in the world" and "swaggering" he was in fact pursued at length by the paper's team, even though they got the shots which would be used as he had first emerged from Ford open prison.

Today the paper splashes on his release from prison, having served two years more than the minimum which was recommended for his offence. The article, in many ways, is remarkably similar. Probably realising that they couldn't have gotten away with one killer calling another "evil", it this time fell to Anthony France to write the article, headlined "HEAD'S EVIL KILLER FREED". The pattern is exactly the same: his every move over the weekend was monitored, right down to the truly thrilling detail that he found himself on the wrong train platform and had to sprint to the right one. This time, rather than "swaggering" he was instead "strutting", although a "source" declared he was "strolling along enjoying the sunshine as if he didn't have a care in the world".

All of which is, it should be noted, with the exception of the description of him as "evil", is fair enough. The release of a notorious killer into the community is undoubtedly a matter of public interest. Far less fair are the same inaccuracies which almost always feature in any report on Chindamo. Firstly, that his appeal against deportation to Italy was granted on human rights grounds when it was not. The Asylum and Immigration Tribunal's decision was in fact based on the 2004 EU citizenship directive, and the government's appeal was rejected on the grounds of a subsequent 2006 EU immigration regulations, where the judge decided that Chindamo did not pose a "genuine, present and sufficiently serious threat" to society. It was in any case perverse that Chindamo could have been deported back to Italy - he arrived in London when he was 6, could speak no Italian and had no actual family connections in that country. He was a product, of this country and while he was responsible for his actions he should also be considered our responsibility, not that of a country he left as a small child.

The second inaccuracy is the continued assertion that Chindamo was still considered a threat back in 2007, not just repeated in the Sun's article and its leader comment, but also in the Telegraph. It's true that in the Home Office's submission to the immigration tribunal it says that "the appellant’s crime is of such severity that he will always continue to be a threat to the community such that his release on licence would be on the basis that he might be recalled to prison at any moment for any breach of his conditions". This however is the regime which all those sentenced to life in prison find themselves under when they are released on parole; they are on licence for the rest of their lives and any breach of their conditions, if considered serious enough, results in their instant return to prison. The other parts of the paragraph which are less willingly recalled directly contradict the claim that he still poses a threat:

In the revised reasons for deportation letter it is noted that it is unlikely that the appellant will reoffend, and that he accepts his responsibility for his offences and has undertaken courses for anger management.

...

In this regard though we must bear in mind the point to which we were referred by Mr Scannell that that assessment was not made on account of the appellant being a threat to the public but because of the likelihood of media scrutiny and/or public interest. The letter does note that risk factors might increase because of media and public scrutiny that the appellant might receive. It also comments that the OAsys report notes that there are occasions where the appellant has overacted to situations and there are severe concerns with finding him appropriate accommodation on release if allowed to remain in the United Kingdom. He would need to be excluded from certain parts of the country, community integration would be a problem on release and he might suffer a backlash. The letter states that the appellant’s notoriety might make him feel excluded from society as he had been before and there was a significant risk that his previous disregard for authority and the law might resurface and result in him coming to adverse attention. As a consequence it was considered that he posed a continuing risk to the public and that his offences were so serious that he represents a genuine and present and sufficiently serious threat to the public in principle such as to justify his deportation.

In other words, the Home Office was not justifying his deportation on the grounds that he himself was a threat, but rather of what might increase the risk should he be released, which unsurprisingly is the media following his every move as it has so far done. If anything, it seems to be suggesting that the problem might be if he is forced to defend himself; far easier to dispose of him to Italy where no one would recognise him then have to draw up effective and also expensive plans to potentially protect him. It also has to be remembered that this was part of a letter putting forward the case for his deportation, where the argument was always likely to put as forcefully as possible. In any case, the Asylum and Immigration Tribunal at the time rejected it, and the parole board would have heard exactly the same arguments before making its decision, again obviously rejected, with any threat or risk decided to be manageable.

The Sun does at least at the end of their story give space to the statement issued by Chindamo's solicitor, which outlines his remorse and gives an indication as to how he intends to continue to atone for his crime. It doesn't however make mention of the how the deputy prison governor at Ford considered Chindamo to be one of the very few prisoners he had encountered who had genuinely made a change for the better, who if given a chance "would prove himself worthy of trust", probably for the reason that he tried to get the hearing held behind closed doors because of the press coverage of his day release.

The paper's editorial tone has also somewhat changed from back in 2007 when it declared he should not be released, although not by enough, and which again repeats the inaccuracies dealt with above. It also mentions another comment made, dealt with myself again at the time:

One fellow con said he showed not one ounce of remorse - quite the opposite, in fact.

The fellow con was Mark Brunger, and his comments were based on how Chindamo supposedly was while at a young offender's institution. Back in 2007 at best he had not had any association with Chindamo for 3 years - and at worst anything up to 7, and that's if we believe him.

That was just three years ago.

We can only pray that letting him loose is not a gamble with someone else's life.


And the Sun, as the Home Office set out, is doing its part perfectly.

All the signs are however that Chindamo is that rare thing - a truly reformed character. Giving a convicted killer the benefit of the doubt is always going to be difficult, even when Frances Lawrence has herself apparently now forgiven him and magnanimously hopes for the best. Chindamo has to live up to what is expected of him, but to do that others have to take him into their confidence as well. The Sun, the rest of the media, and the public should now give him the opportunity and the space to do just that.

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7/19/2010 10:29:00 pm | | | links to this post

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