Tag: crime and freedom

Complex fraud trials

I admit I don’t understand what’s so complex about fraud trials.

As I roughly understand the law, in order to prove someone guilty of fraud, you have to show:

  • They said or wrote something that wasn’t true
  • They knew it wasn’t true
  • They gained money or goods as a result.

The problem seems not to be “complexity”, but rather a very large quantity of evidence intended to prove or cast doubt on each assertion. In the Jubilee Line case, the jury seems to have had all this evidence lumped on them over a period of getting on for two years, with the idea they would eventually be left to decide on it all.

The idea that generally crops up at this stage is to do away with juries, or, as suggested here, to change the composition of juries.

To my mind, a less drastic response would be to change the programme of a trial.

I, like many others, have been following the progress of SCO v IBM, via the Groklaw blog. Now that’s happening in the USA, but the main difference is that it’s a civil matter, and so far no jury has been involved.

As you follow the development of this genuinely complex case, what happens is that questions are answered one at a time. One side raises something they want to be decided, the other side submits arguments against, and the judge rules one way or the other.

I don’t see why this can’t be done in a criminal trial with a jury. The jury is there to determine the facts, why can’t it be done one at a time? The prosecution allege that some detail is true, the defence deny it, both sides present evidence on that one point, and the jury decides. The prosecution, having got rulings on all their facts, make the case based on proved facts. The defence declares that there are other relevant facts that have not been covered, and those are decided in the same way. Finally, arguments are made, again based on facts that have already been considered to have been proved.

This has two advantages: First, the job is made simpler for the jury. Second, the same jury need not handle the entire case, if it takes four years or something.

Once again, I am extending my professional techniques beyond their normal scope: Earlier today I described BST as bad data modelling, now I am suggesting that the court system employ modularity. Every beginning programmer is taught that complex tasks are made simpler by separating any subtasks that can be handled independently.

It could be argued that this system would reduce the independence of juries, and would compromise our traditional liberties. Maybe so: it certainly would need very thorough study. But, as in the case of the anti-terrorist control orders, people are talking about abolishing traditional liberties, without really looking at less drastic ways they could be tweaked to achieve the same ends.

Punishment in Context

I didn’t closely follow the fuss kicked up by Eugene Volokh’s praise for Iran publicly hanging a serial killer, which seems to have ended in a good deal of intelligent analysis all round.

One of the most interesting arguments is that judicial punishment, in addition to its more obvious purposes, performs the useful function of restoring the self-esteem and public status of the victims, which would be damaged by their wrongs going unavenged.

What I didn’t see discussed was that this also applies to the judicial system and the state itself. A state which lets crimes go unpunished or nearly so loses respect in the eyes of its people — and not only those who are considering crimes themselves.

What constitutes sufficient punishment depends on the character of the culture itself. In a culture where violent death (legal or illegal) is commonplace, a state that won’t even kill people is likely to be seen as ineffectual — even if it is actually quite effective at detecting and deterring crimes. On the other hand, in a society that is free of violence, an execution penalty would make the state seem backward, rather than strong.

In some circumstances then, it might be necessary for a state to use penalties such as Iran does, just to assert its authority.

If one accepts this argument it means that he should be cautious about applying the standards of humane punishment appropriate to his society, to other countries. I am happy living in a country without the death penalty, but I’m not sure it’s reasonable to attempt to insist that other countries do the same. The USA is seen, both here and there, as a more violent place. (This may well be an inaccurate view, but for these purposes the perception is probably more important than the reality). Is their retention of the death penalty a rejection of civilised standards, or a rational response to conditions?

There are caveats: the influence would presumably work both ways — while a society conditioned to violence might demand violent punishments, an abandonment of those punishments might delegitimise violence within the society. Furthermore, I think our governments have more status and authority than is good for us, and reducing that might be preferable. But neither of those really apply to states where violence is deeply ingrained, and where the state is in danger of disintegrating altogether.

Quick point on Terrorism Act

One reason why the new Terrorism Act goes so much further than the old ones is that Islamist terrorists are more keen to kill large numbers of people than the IRA ever were. I don’t dispute that.

But there is another reason. In the Good Old Days, if the police believed that particular individuals in Britain were terrorists, but didn’t have the evidence to prove it, they didn’t just whine to the Prime Minister for more powers. No by Jimminy they didn’t.

No, like any self-respecting police throughout history, they got up off their arses and faked up some evidence. That’s the traditional way.

Modern forensic techniques and legal requirements make that more difficult these days.

So today, instead of having explosive residue planted on him, or being invited to sign a blank piece of paper on which will be written a contemporaneous account of his confession, our known terrorist will get a totally legal Control Order from Charles Clarke.

There’s one thing we know now about at least some of the people fitted up in the Good Old Days by the boys in blue.

They were completely innocent.

Just one little point to bear in mind.

Censorship as Expression

Bouncing around random links from this week’s BritBlog Roundup, I ended up at a Mark Lawson piece in the Grauniad on censorship in the theatre.

There was a breathtaking exchange on a Radio 5 programme this week. A leader of the campaign to disrupt Jerry Springer: The Opera was interrupted by another guest in the studio who said: “But I’m also a Christian and I don’t believe that Jerry Springer should be banned.” The religious censor pounced: “Yes, but you can’t impose your interpretation of Christianity on everyone else.”

The key to understanding this exchange is that in the current media world, the most obvious way of expressing dislike for something is to try to ban it — to the point where it appears as the only way of expressing opposition. The first speaker in the passage above was expressing his opinion of Jerry Springer: The Opera by campaigning to ban it, and his opponent, by criticising that, was effectively saying the first speaker should not express himself, and thus attempting to censor him.

In an ideal world, the anti-Springerist should have been able to express his view of the work, and have that view publicised, without threatening to forcibly prevent people from seeing it. In this world, to achieve such a thing is so difficult it probably never occurred to him, and, if it did occur to him, he would rationally have been bound to discard it as a strategy. He would not have been able to get such views discussed at all, let alone on Radio 5. In our culture, it is difficult to get people to even understand the concept of opposing something without making it illegal, and if you succeed in getting the idea across, you will still lose impact and be seen as wishy-washy or over-complex. This is the problem for anti-prohibitionists in the drug debate, for example.

Again, in the ideal world, he could have taken out advertisments urging people not to go to watch the offending work, or campaigned for clergy to condemn it in the pulpit. I feel slightly silly even making these suggestions. If you want to be taken seriously, you have to demand a ban. If you don’t get it, that doesn’t matter so much. You will have expressed your view, and got media coverage, and you will have shown both your friends and your enemies the strength of your support.

How to get to my ideal world? I can see two approaches. One is to try to delegitimise censorship off the bat, and refuse to engage with the substantive opinion of someone demanding censorship. The second is the opposite, to treat the demand for censorship as purely formal, and have a debate only on the actual objections of the would-be censors, without taking seriously or considering the practicalities of how the censorship would actually happen.

Neither approach looks much like working to me. Does anyone have a better idea?

I suppose we should also ask how we got to this situation. I guess it’s just that greater democratisation of society, and greater access to mass media, has meant that a vocal minority actually can ban things, and that has made doing so the obvious way of expressing dislike.

Privacy or Freedom?

Four immigrants have been removed from their homes in 2001 and imprisoned in Belmarsh Prison. They have not been charged or convicted of any crime. (They are free to return to their countries of origin, but cannot be forced to do so).

The Law Lords ruled that this was a breach of human rights. In an attempt to reduce the threat posed by their release, the government has tried to get a new law passed that it can use to restrict their freedoms and movement after release. This law is being held up in the House of Lords.

These four are therefore now being released.

Their names are “E”, “H”, “Q”, and “K”.

What?

Oh, we can’t be told their real names. That would violate their privacy.

HAS THE WORLD GONE FUCKING MAD?

The government is prepared to overrule basic principles of freedom in this case — both ancient ones (Magna Carta) and modern ones (ECHR). It says it is necessary to take these extraordinary steps to protect us from these men. It has imprisoned them for over three years without trying them. So why can’t it tell us who they are?

Talk about swallowing camels and straining at gnats.

If it is necessary to compromise our liberties in the face of the terrorist threat, and perhaps it is, then surely we should have some kind of scale of which rights we are more willing to lose and which we are more determined to keep.

The idea that someone subject to legal proceedings should have their identity protected is something which I would happily give away for nothing. Indeed, I think the legal process should be open and public.

The right of people anywhere in the world to stay in this country, even if they are believed to be a threat, if they would be in danger in their home country, is worth a bit more. I would quite like to keep that, or at least to require that some justification for the belief that they are a threat be presented. I am open to discussion of this matter, though.

The right of citizens of this country to be either tried for an offence or allowed to go freely about their business is incomparably more valuable. I am nowhere near being convinced that we need to compromise this at all.

So why have we jumped straight to abolishing that essential freedom, when the stated objective could be so easily attained at much less cost.

I am sure the Police and Security Services are sincere in their desire to do their very important jobs as well as possible, and are asking for the power they think they need. But the dynamics of their organisations are such that they will always be asking for the most power they have any chance of getting. I do not blame them for that, but it is the role of our elected government to make the important trade-offs, and not to hide behind “advice” of these agencies as an excuse for not making them.

The Northern Bank Robbery and the Peace Process

Fascinating article on the Northern Bank robbery, from the Observer

When I originally wrote my article “The Structure of Terrorist Movements”, my plan was to follow it up with two sequels; First, a recent history of the IRA, and second, a piece on international terrorism. My overall intent was to challenge Eric Raymond’s “Anti-Idiotarian Manifesto” on what I saw as its one flaw: the lumping together of terrorists and their supporters as one undifferentiated enemy.

What I found when I tried to write my summary of Northern Irelands terrorist war was, first, that people had spent years doing serious research on this, and I didn’t have time even to read what they’d written, never mind improve on it, and second, that on many important issues, the real facts simply aren’t known.

There is at least a good reason why the facts are so unclear: It was necessary during the peace negotiations for both sides to present the settlement to their followers as a victory. Each side recognised the other’s need to do this, and were therefore prepared to disguise the cold facts in places.

So, of necessity, what follows is not the factual summary I originally envisaged. It is much more an opinion piece, describing what I believe has happened in Northern Ireland since 1992. Almost every statement I will make can be challenged.

First claim: the war is over, and has been since 1998, though it was not clear at the time. Violent incidents have occurred since then, notably the Omagh bomb which killed 29 in August of 1998. They will continue, but they are no longer the acts of a coherent political movement. They should tail off over the years. The individuals involved may have links to mainstream republicanism, but that mainstream, including Sinn Fein, no longer depends on them. Sinn Fein has almost completed the movement to being a purely political, rather than terrorist, organisation.

full article…

More on Denbigh High School

I have found the actual Appeal Court judgement on the Denbigh School case:

http://www.courtservice.gov.uk/judgmentsfiles/j3114/sb-v-headteacher_denbighighschool.htm

Update: URL moved

It bears out, so far as I can see, my interpretation in my previous post:

75. The decision-making structure should therefore go along the following lines:
1)Has the claimant established that she has a relevant Convention right which qualifies for protection under Article 9(1)?
2)Subject to any justification that is established under Article 9(2), has that Convention right been violated?
3)Was the interference with her Convention right prescribed by law in the Convention sense of that expression?
4)Did the interference have a legitimate arm?
5)What are the considerations that need to be balanced against each other when determining whether the interference was necessary in a democratic society for the purpose of achieving that aim?
6)Was the interference justified under Article 9(2)?
[…]
81. Nothing in this judgment should be taken as meaning that it would be impossible for the School to justify its stance if it were to reconsider its uniform policy in the light of this judgment and were to determine not to alter it in any significant respect. Matters which it (and other schools facing a similar question) would no doubt need to consider include these:
Whether the members of any further religious groups (other than very strict Muslims) might wish to be free to manifest their religion or beliefs by wearing clothing not currently permitted by the school’s uniform policy, and the effect that a larger variety of different clothes being worn by students for religious reasons would have on the School’s policy of inclusiveness;
Whether it is appropriate to override the beliefs of very strict Muslims given that liberal Muslims have been permitted the dress code of their choice and the School’s uniform policy is not entirely secular;
Whether it is appropriate to take into account any, and if so which, of the concerns expressed by the School’s three witnesses as good reasons for depriving a student like the claimant of her right to manifest her beliefs by the clothing she wears at school, and the weight which should be accorded to each of these concerns;
Whether there is any way in which the School can do more to reconcile its wish to retain something resembling its current uniform policy with the beliefs of those like
the claimant who consider that it exposes more of their bodies than they are permitted by their beliefs to show.

In other words, the school didn’t write the correct arse-covering memos before deciding to apply its school uniform policy.

School Uniforms and Thought Crimes

Update: Denbigh win appeal to House of Lords

As the blogosphere’s man in Luton, I suppose I should comment on the Shabina Begum case. The only “local colour” I can contribute is to confirm that one doesn’t see many jibabs around the streets of Luton.

The other point that was made when the case was originally decided in favour of the school, but not made in the press now that the appeal has gone the other way, is that Denbigh School is 80% Muslim. Various arguments I have seen do not take this into account.

That is by the way. I’m less interested in whether religious traditions should override school uniform policies, than in the bizareness of the legal argument that the Appeal Court used.

Their finding seems to be that the School erred by not considering whether their uniform policy breached the pupils’ human rights. If they had considered it, they could have decided, as the lower court did, that the uniform policy was fine, and they would have been OK. They lost because they didn’t have a piece of paper on file saying that they had taken human rights into account.

(I’m open to correction on my understanding here, as I’m working very much from secondary reports, including the Council’s own statement on the judgement.) UPDATE: I found the primary source; more details here.

This trend of legal and regulatory requirement is intensely stupid and irritating. It replaces restrictions on actions and policies with thought crimes. I mean that precisely; the fault of Denbigh School was not in its actions but in the way it decided its actions.

The result of this legal attitude is to drown all activity, in both the public and the private sectors, in a snowstorm of pointless arse-covering paperwork. Hypocrisy is made paramount, and the key managerial skill is, as Dogbert has it, “pretending to care”.

Thought crimes produce hypocrisy, because it is impossible to tell what someone is really thinking. You can act for one reason and claim to be acting for another reason, and if your reasons rather than your actions are regulated, you can get away with anything.

Time after time: employment law, money-laundering law, accounting law, human rights law, we are being required to take various principles into account, and document that we have done so, rather than being judged on results which can be objectively assessed.

This even links with yesterday’s post. I am a fanatical believer in honesty and openness. I like to tell the truth about what I’m doing and why, and prefer other people to do the same. Thought crimes mean that I am still free to act as I choose, provided that I’m prepared to lie about it. It leaves a culture of disinformation which harms everyone’s decision making.

Openness

Via Hit and Run, an overwhelming case for openness in counter-terrorism.

The bullet points: If law enforcement had kept fewer secrets from the public, the Sept. 11 attacks would not have happened. If they had kept more secrets, the attacks would have been more successful.

Our key advantage over the terrorists in our midst is that there are more of us than there are of them — by a factor of tens of thousands. Secrecy is a necessity for them: it evens the odds by taking nearly all of us out of the fight. If they know our secrets, there’s actually not enough of them to exploit it. If we know any of their secrets, then someone, somewhere, can use that to learn more or to act against the terrorists.

In Britain, the government believes there are people against whom no legal case can be made, but who pose a huge danger if released into society. Its solution is to put them under house arrest, without legal proceedings, and a law is now before parliament to permit this. My solution would be to publish their names, addresses and photographs in the Mail on Sunday, and suggest that people might want to keep an eye on them.

There is, of course, a danger that “mob rule” might get out of hand, but I trust the people more than I trust the government. Apart from anything else, private individuals are more accountable than officials, as they do not have the Official Secrets Act to protect them from the consequences of their actions.