Thursday, 9 August 2012

Stories in the media ~ Disorder ~ Foreign jails ~ Extreme porn ~ Lords reform

The August 2011 disorder is back in the news with the sentencing of 16 offenders.  See The Guardian 9th August 2012 which gives details of the offenders, the offences committed and the individual sentences.  The Daily Mail 9th August covers the same story but places emphasis on the point that one of the offenders - Nasir Muhsen - had been housed in accommodation which would merit a rent of some £6000 monthly on the open market.  The Mail also reports that - "In extraordinary scenes, many of the defendants, aged between 15 and 25, whooped with joy, shouting obscenities and laughing as the judge passed sentence."  In recent years there have been a number of instances of defendants behaving in a manner which almost certainly amounts to a contempt committed in the face of the court.  As far as I know, no additional action has been taken against any such defendant.  Maybe it is time for the authorities to have a think about this?

Mr Trevor Reeves of the Reeves furniture store in Croydon has published an article in The Guardian 9th August.   This is an article well worth reading.  Some positive things emerged as a result of the disorder.   Mr Reeves wrote -
"After the initial shock of dealing with the business recovery, insurance demands, media attention and indeed the overwhelming passion and support from all over the world, it became obvious that there were many young people who were really upset they were being tarred with the same brush as the rioters. Likewise, there were many community leaders who wanted to redouble efforts to bring those inclined to the dark side out of the violent and criminal mindset that was indicative of many rioters."

In connection with the fire at Reeves Store, Gordon Thompson was sentenced to eleven and a half years imprisonment for arson - BBC 11th April.  He changed his plea to guilty and the jury was then ordered to find him not guilty of charges of violent disorder and arson with intent to endanger life.

Sprucing up foreign jails - The Telegraph reports that "British taxpayers are paying to refurbish prisons in other countries in a desperate attempt by the government to repatriate foreign criminals."   The report states: "Some 156 different nationalities are represented in jails. The cost of locking up foreign criminals is estimated at almost half a billion pounds a year. The situation has become so dire that the Government is even paying to renovate jails abroad to encourage more offenders to serve their sentences back home."

Extreme pornography is back in the news with the acquittal by a jury of Simon Walsh on five counts of possession of extreme pornography contrary to section 63 of the Criminal Justice and Immigration Act 2008 - The Guardian 8th August.  The article is by Myles Jackman (Solicitor at Hodge Jones and Allen).  Mr Jackman claims that - "Despite the heartening news that a Kingston jury returned not guilty verdicts in a landmark porn trial on Wednesday, grave questions arise about the right of the state to intrude on the privacy of the individual with unfounded obscenity prosecutions."

"While some defendants have hundreds of thousands of allegedly extreme or indecent images on their computers, Simon had five images of consensual adult sexual activity and a single unrequested picture unopened on his email server attached to an email containing a story about "Jason". Simon never requested this image and the prosecution were unable to prove Simon ever opened, viewed or knew it. In the story Jason was described as being in his mid twenties. The prosecution described Jason as being 14 years old; the legal age of representation in pornography being 18."

Mr Walsh had a great deal to lose as a result of this case.  "He is a barrister specialising in actions against the police, an alderman of the City of London, a magistrate and was formerly an aide to the Mayor of London. As a consequence of this prosecution, Simon was fired by Boris Johnson and excluded from his chambers. He ran the risk of going to prison. He had to listen to his innermost sexual fantasies discussed in court and media."

The law in this area is complex and may merit a subsequent post. Suffice to note, for now, that the 2008 Act creates a number of statutory defences to the section 63 offence.  For example, section 65:

(1) Where a person is charged with an offence under section 63, it is a defence for the person to prove any of the matters mentioned in subsection (2).

(2) The matters are - 

(a) that the person had a legitimate reason for being in possession of the image concerned;

(b) that the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be an extreme pornographic image;

(c) that the person - 

(i) was sent the image concerned without any prior request having been made by or on behalf of the person, and

(ii) did not keep it for an unreasonable time.

(3) In this section “extreme pornographic image” and “image” have the same meanings as in section 63.

It is quite possible for an image to be 'on' the computer of even the most careful user.  Its existence may well be unknown to the computer user but the Act places a burden on the defendant to prove one of the defences in the Act.

For a view that the CPS prosecuted this case free from any notion of proportion, and without regard for the  defendant's privacy and dignity - see David Allen Green in The New Statesman 8th August 2012.  This viewpoint is countered to some extent by a post on Garrulous Law which looks at the "public interest" test applied by the Crown Prosecution Service and argues that the CPS really had little choice but to prosecute.  Nevertheless, Garrulous Law comments that - "The problem is with the law. This is an area that is notoriously retrograde. Laws on ‘extreme pornography’ were criticised at the time for the potential to result in precisely such a prosecution as happened here. They remain deserving of that criticism. Section 63 CJIA ’08 is sloppy, poorly-defined, unjustified knee-jerk legislation.

Put simply, a prosecution such as that of Simon Walsh was simply waiting to happen. That the CPS were obliged to prosecute is not particularly their fault: faced with a straightforward contravention of the law and an absence of special factors, their discretion was seriously limited. They don’t get to choose which laws to enforce."

Another interesting article on the case is that by Nick Cohen - The Guardian 12th August - "Simon Walsh: the vindictive prosecution of an innocent man."

The political side of dropping the Lords Reform Bill - The dropping of the House of Lords Reform Bill has clearly caused tensions within the coalition government.  The Deputy Prime Minister retaliated against the Prime Minister by saying that the Liberal Democrats would not support plans for new parliamentary constituencies.  This is discussed by Martin Kettle in an interesting article in The Guardian 9th August where it is argued that the failure of Lords reform is great news for British democracy.  When "The Coalition: our programme for government" was put together in 2010, the coalition said: - " We will establish a committee to bring forward proposals for a wholly or mainly elected upper chamber on the basis of proportional representation. The committee will come forward with a draft motion by December 2010."

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