Ryan Giggs named as super injunction footballer!

Ryan Giggs has been named as the footballer who took out a super injunction (via Schillings, lawyers to the rich and dubious) to prevent details of his alleged affair with Imogen Thomas.

He was named as such by John Hemming MP in parliament this afternoon. John Hemming later justified his actions because he was concerned that tracking down lots of people from Twitter and jailing them would be wrong particularly as many of them would not have the means to defend themselves.

My understanding is that Ryan Giggs took out the injunction because he was concerned about the affect on his family and in particular his children. Whilst this is an admirable aim, were he that concerned he need not have had an affair in the first place. Even if you are wealthy things things do eventually come out.

On a wider note there is something odd about super injunctions, particularly those concerning corporate bodies such as Trafigura. Whilst they are legal individuals they are not real individuals within the scope of section 8 of the human rights convention and are not entitled to a private family life.

The BBC has this.

When is a rape not a serious rape?

Not for the first time, Ken Clarke appears to have been at the centre of some controversy, so I thought I would ask the following:

All of the following are legally rape, but do you regard them as equally serious?

1. A boy of just over 16 has sex with his just under 16 year old girlfriend, and they both want to do it so there is no complaint of rape.

2. A boy of 16 or 17 has sex with "his" 10 year old "girl friend" and there is no complaint from the girl of rape.

3. A man of 30 has sex with "his" 13 year old "girlfriend" and there is no complaint from the girl of rape.

4. A man and a woman having spent all evening together, consuming much drink go to one or others home and have sex which turns out to be non consensual.

5. During an evening in a bar a man slips a "date rape" drug into a drink for the woman he is talking to then takes her home and has sex with her.

6. A man jumps a woman he has never met in an alley, drags her away, threatens violence, and forces sex.

7. A man breaks into a house in the middle of the night, uses violence, and the threat of violence, forces sex.

Are they all as serious as each other?

Please note that in all the cases above the perpetrator is always male because the legal definition of rape involves sexual engagement with a penis. Anything not involving penetration with one is not legally rape but may be a sexual or serious sexual assault.

Michael Savage and the banned list

Apparently Jacqui Smith, the alleged Home Secretary has published a list of people who are banned from coming to this country, including Michael Savage, the American "shock jock".

It has to be said that under the provisions of the 1971 Immigration act as originally passed into law does allow the Home Secretary to ban people from this country (though it makes no comment on one so hopeless as Jacqui Smith) on the basis that the Home Secretary feels their presence is not conducive to the public good.

So all's well then?

No.

Firstly its a publicity stunt by the government because it can't get hold of the news agenda, though to be fair it has backfired in spectacular fashion.

Secondly, we have never before felt the need to ban people from coming here who do not appear to have any current plans to come here.

Thirdly, this is not exactly an exhaustive list is it? It does not include, by way of glaring example, Osama Bin Laden, nor Sheik Hassan Nassralla. Nor indeed Avigdor Lieberman.

In short, it is a pointless publicity stunt by the person who wishes she could be Home Secretary, but alas is not now, nor ever was up to the job, Jacqui Smith.

The BBC has this and this on Michael Savage suing.

Barry George guilty! but not of murder...

Well, the worst you say say about Barry George is that he is a bit odd, which combined wit the fact that he lived near Jill Dando about sums up the prosecution case against him.

I am very pleased he has been acquitted because last time I looked being a bit odd was not a criminal offence.

I wonder of the police will investigate the murder properly. Somehow I doubt it.

The BBC has this.

Police use terrorism acts to cover up their own criminality

Police in Portsmouth have tried to use the 2000 Terrorism act to cover up their own criminal breach of motoring laws.

A passer by noticed a police car illegally parked (Motoring offences are a criminal offence) so took a picture.

They then questioned the passer by, David Gates, under the terrorism act, citing security concerns.

We have to get seriously concerned when police cite "security concerns" when people are gathering evidence of specific criminal offences, even if they are only road traffic offences.

Let us be clear: If you can see it from a public place, you can photograph it, and if it is the police breaking the law you certainly can.

The local Portsmouth paper has this, whilst the BBC, appearing to have lost its bottle, had a brief news report at 6 but has dropped it since, showing such post Hutton courage, has nothing at all.

Max Mosley wins, but fails to get punitive damages.

Max Mosley has won his High Court case against the News of the World, being awarded £60,000 in damages. Alas he has failed to get punitive or exemplary damages which is a shame.

The reason why I say it is a shame is that large media organisations can make money out of trashing peoples reputations even where they get sued for libel and lose.

Take Robert Murat. His name was resoundingly trashed with no shred of evidence whatsoever. The papers who did that settled out of court for £50,000 each plus costs, presumably similar in number. Does anyone seriously think they did not make much more than that trashing his reputation?

The BBC has this and there is a copy of the judgement here, whilst the BBC has this on Robert Murat.

Max Mosley's Hanky Spanky, and Punitive damages.

The News of The World likes a bit of sex, doubly so if there is spanking and trebly so if they can call it a sick and deprived Nazi sex orgy. It sells papers after all and the bottom line profit is what it is all about.

They got a lead on a "dirty old man" who liked to pay for kinky sex. Lets face it, on the face of what is admitted it was fairly kinky.

The News of the World contends that this was a sock and depraved act. The Editor claimed he would not have gone to press with the story had it not involved Nazi role play. (Does anyone including him believe that?)

The problem for the News of the World is that all those involved bar their "whistle blower" have said it was not, and the video seems to be inconclusive at best. Then of course their witness E failed to testify due to emotional issues. I have no doubt this was not due to intimidation on Max Mosley's part, so you have to wonder what she was so concerned about?

It is an interesting case. Max is upset according to the BBC, because:

Mr Mosley has told the court previously that the publicity has been "totally devastating" for his wife of 48 years, and he could think of "nothing more undignified or humiliating" for his two sons to experience.

Well that is a fair reason to be upset but you can't help but feeling that he could have avoided upsetting his wife by being faithful.



So what of privacy which is at the heart of the issue? Does Max Mosley have the right to do what he likes in his private life? Well having affairs is not illegal, nor is using prostitutes nor in fact sadomasochism. We may feel that cheating on his wife is wrong, but enjoying kinky sex you would not want to tell your kids about, well, I mean would you want to tell your kids and all their friends?

It seems to me that the News of the World have be in trouble having linked the publication to a Nazi fantasy after all Sir Oswald Mosley was a famous fascist, and would not have published otherwise, thus accepting the fact that Max cheated on his wife as not worthy of publication.

However there is one final interesting bit to this case, that of exemplary and punitive damages which are being asked for. In this BBC article they are described as "unprecedented" which is, of course precisely untrue, but then again what can you expect of journalists?

Punitive damages are available to English courts and perhaps always have been. It is just that lawyers seldom have the balls to ask for them nor do they present evidence that would justify them.

There is a clear precedent in English law as well as the common law of the United States of America. In English law there is the case of Rookes v. Barnard [1964] AC 1129, 1167 in which Lord Devlin said that punitive damages were available where:

1. Oppressive, arbitrary or unconstitutional actions by the servants of government.
2. Where the defendant's conduct was 'calculated' to make a profit for himself.
3. Where a statute expressly authorises the same.
   

Clearly the News of the Worlds actions would fall into the second category. There are too many instances where a party can get away with making a profit from committing a wrong because they know they will either get away with it, or that the costs of being called to account will be less than the profit of committing the wrong or more usually a combination of the two.

For that reason and that reason alone, I hope that cheating git Max Mosley wins his case and wins it well.

For a further discussion on gains based damages I recommend James Edelman's book, Gain-Based Damages published by Hart Publishing.

Criminal Justice, a very compelling drama!

Criminal Justice is a very compelling drama. In fact I think it is fantastic.

We do not yet know the result but what we have seen is the way the investigation works and the way prisons work.

We already know the main character Ben Coulter did not murder Melanie. What we also know is that he looks guilty as sin by forensic evidence and the fact he ran away.

We also know how partial "expert" witnesses can be.

This is one of the most important dramas to be aired on the BBC since things like Cathy come home and justifies their licence fee.

The only problem is that no one else I know is watching it, which in my view is criminal.

Criminal Justice

First of all, after two episodes, I have to say fantastic.

Has it changed my mind about anything?

No!

Do I hope it has changed yours?

Yes!

The plot is interesting (if inaccurate in some ways) in that the lead character arrives at his predicament in a very unusual way. Despite the fact that the viewer knows it to be true, if you told that story down the pub, you would be laughed at. That does not mean that it could not be true, weirder things have happened to me (though not involving sex), and that he can't remember the murder so does not know if he did it.

Now, moving on:

We have the situation where the police seem to take the line of least resistance. Crucially the lead investigator has doubts but not the man power to investigate what appears to be an open and shut case.

We have lawyers who encourage the defendant to be silent, and who weigh up the odds on the basis of odds alone.

The truth seems to be a lost irrelevance.

Then the other thing is prison.

I am all in favour of locking up criminals. I am even in favour of remand subject to many caveats.

What I am clear on is that prison does not work. It is entirely dysfunctional and needs urgent fixing.

For a start it needs to return to the Victorian ideal of a prisoner to a cell. Secondly shower or toilet facilities can not and should not be shared. Anything else allows the rule of the bully and prevents rehabilitation.

More thoughts will appear as the series goes on.

The BBC has this.

The Law Lords and Anonymous witnesses

The Law Lords have, in a well argued judgement ruled that Ian Davis had not received a fair trial because there was too much anonymous witness evidence. (See the BBC here)

The Police have expressed great concern about the ruling because they have many cases which rely on anonymous witness evidence.

So why the problem?

Obviously criminals, particularly those who have committed serious crimes such as murder have no respect for other peoples lives, and will not think twice about intimidating witnesses. There friends, family or gang members may do the actual intimidation so the fact that the accused is locked up is not enough.

However the right to a fair trial is a common law right, now in the Human Rights act as is the right to see and confront your accuser. This is vital to a fair trial.

Imagine the situation where you (and yes, I do mean YOU) are accused of a crime, say murder, and the only evidence against you is that of 2 anonymous witnesses. Neither you nor your defence team know who they are. You do not know what if any axes they have to grind against you.

Is there a precedent for anonymous witnesses? Yes, though not a happy one, the Spanish inquisition used them were on the list of , though I have heard that you had to have 3 accusers and got to write down a list of enemies. If your enemiesaccusers they were struck off.

If you think about it having anonymous witnesses is a very bad thing. Someone who feels you have done them down, or who has some axe to grind could be a witness against you, and you would never know.

So what is the real problem here? What is the ill we seek to cure?

It is fear. Remove the fear and then there is no need to have anonymous witnesses.

To remove the fear of witnesses we need to do two things. Firstly there needs to be a fully funded witness protection program, secondly there needs to be a specialist unit to investigate witness intimidation of any sort. We need to make sure that anyone who intimidates a witness serves a long prison sentence, say 10 years as a minimum, or longer if the crime that the intimidation is over has a longer sentence.

If people can't get away with witness intimidation they will stop doing it.

The BBC also has this article by Professor Jon Silverman, of the University of Bedfordshire.

Sean Hoey acquitted of Omagh bombing

Sean Hoey has been acquitted of the infamous Omagh bomb.

Apparently the case against him has been built on "Low Copy Number" DNA which can take the minutest sample of DNA and "amplify" it to produce a profile.

There are obvious logical problems with this approach, not the least of which is how do you know that the sample obtained from a crime scene does not contain DNA from a number of sources?

LCN DNA may be useful for directing an investigation, but the Judge at the trial today, Mr Justice Weir did not seem impressed by it as he threw the whole case and gave damning criticism of the police investigation.

Lets be clear. DNA is no magic bullet, Low Copy Number DNA doubly so. No one should be convicted on the basis of such evidence alone.


The BBC has this.

The Government is listening!

Apparently to your every phone call.

Yesterday's Mail on Sunday carried the story that the government has passed legislation that requires telephone companies and Internet service providers to keep records of when and where telephone conversations and emails were sent. This will include tracking data on where mobile phones are.

This information is to be made available to all and sundry in government from NHS trusts to local councils.

There will apparently be safeguards. These wont actually work, because the current ones certainly don't. As I highlighted in this article there is current concern over the way state databases are used to locate errant family members in to commit so called "honour killings". The same information can and is used by criminal gangs.

So to the asinine statement "If you have nothing to hide you have nothing to fear" there are two responses. The first is that what ever the state monitoring that is brought in, the fear is what a different state would do with it, and then there is the query over what other people will use it for?

This can and does happen. Now. This is not some theoretical risk.

Beware of the Baby Snatchers part II

The secret family courts and social services are at it again. I reported on this in the Telegraph a short while ago where family courts sitting in secrecy were putting children up for adoption even where the parents had been cleared of any charge of abuse and indeed on the worrying rise of under one years olds taken into care and adopted.

Well now the Sunday Telegraph reports on the case of a couple who had their daughter taken into care on suspicion of sexual abuse followed shortly after by her sister just after her birth.

The police after exhaustive investigation have concluded that there is not sufficient evidence to bring charges against the parents. In many ways that would be fair enough, but the parents need to be exonerated and they never can be in such circumstances.

The situation has of course moved on. The children have been in care so long that they have now been placed with potential adoptive parents. It seems the weight of the system is against the parents as the courts are likely to take the view "that it is in the best interests of the child" not to change the status quo.

This makes me so angry. Parents who have done nothing wrong will not be banged up for 10 years, but will be deprived of their children for life, whilst at the same time the children will be denied their biological parents for life despite all the evidence indicating that is the best relationship.

The family courts need a kick up the backside and secret hearings need to be ended yesterday.

Beware of the Baby Snatchers and the Secret Courts

According to figures obtained by the Sunday Telegraph the numbers of babies less than 1 week old taken into care has risen by 3 times since 1997 to 900 a year whilst the total number under 1 year old have risen from 970 to 2,120.

These cases then go before the Family Courts which operate in complete secrecy. To give you an idea how bad it is a Solicitor concerned about one such case (Sarah Harman) was suspended from practicing for three months for showing papers to the then Solicitor General, Harriet Harman (her younger sister).

These cases can't be discussed beyond a very narrow group of people, breach of this secrecy counts as contempt of court. So we don't know what goes on in these courts. What is more they rely on expert evidence which is frequently from one source.

It gets worse than that though. Unless you can find evidence to prove the expert wrong there is no point in appealing, it takes time and money to find new expert witness evidence and both are frequently in short supply as young children end up being put up for adoption fairly quickly. Once adopted that is it. No appeal will get the children back. They are lost and gone forever.

There was a case of a family from Norfolk who had had 3 children taken into care on the footing that it had suspicious broken bones, and without any need to prove who did what the children were taken into care. When the fourth child was on the way they went on the run and got as far as Ireland. Regrettably they were sent back. However they eventually scored a victory as their council backed down and accepted that the child whose broken bones led to their children being taken into care did in fact have a medical condition which led to that. By this time of course the 3 other children had been adopted so no appeal will get them back. This is a full life sentence for a family convicted not beyond reasonably doubt, but on the balance of probabilities with no appeal, no time of fro good behavior or anything else and all done in the strictest secrecy.

Some say that the numbers are going up because of the incentives for councils to get more children adopted, and it is a lot easier to get a new born adopted. Obviously this has been denied.

There is however a real problem here. Children are being taken away from their families, and once adopted there is no recourse to law, that is it, the end. This happens in secret so there is no scrutiny. This is patently unjust and wrong, even though the secrecy is supposedly there for the best of reasons, to protect the anonymity and best interests of the children. It seems to me that the secrecy now only benefits the system by hiding the injustice and absurdity of some of the decisions.

John Hemming MP has a blog and frequently raises this issue. In this article he links to a Times law report of a judgement in the Court of Appeal which came to the conclusion that as the law currently stands if a child is taken into care and it now should no longer be in care, that if the judge views it in the best interest of the child then that child will be adopted.

The Sunday Telegraph has this.

Terror Chief, Leaks put lives at risk

Deputy Assistant Commissioner Peter Clarke of the Metropolitan Police has hit out at leaks related to anti terror raids, with some choice quotes as follows:

[There were a] "small number of misguided individuals who betray confidences. By doing so, they had compromised investigations, revealed sources of life-saving intelligence and "put lives at risk" during major investigations.

"The recent investigation in Birmingham into an allegation that a British serviceman had been targeted by a terrorist network is but one example of this,"

"On the morning of the arrests, almost before the detainees had arrived at the police stations to which they were being taken for questioning, it was clear that key details of the investigation and the evidence had been leaked.

"This damaged the interview strategy of the investigators, and undoubtedly raised community tensions.

"I have no idea where the leaks came from, but whoever was responsible should be thoroughly ashamed of themselves."

At the time of the Birmingham arrests there was also some marked disquiet in the police, which I wrote about here, and an allegation in a journal that the leaks happened to distract from the cash for peerages inquiry.

From reports I have heard the journalists in Birmingham and the Midlands were not getting "all the juicy details" from their contacts, the information was coming from London based journalists, and we can all guess where that means.

After that, an the sale of stories in the Iran hostage crisis, it seems Whitehall leaks first, and thinks later, with terrible consequences for all concerned.

The BBC has this on the speech by Deputy Assistant Commissioner Peter Clarke, you can read more on the war on terror here.

There was always going to be a loser in a case like Natallie Evans' case

I would hope that all people with charitable hearts would feel for Natallie Evans today, she has after all lost all chance of having her own baby, that is of her own flesh. It is not like she has not tried, not fought the fight, she has taken it as far as she possibly could.

I would also like to think that all good people with charitable hearts would have felt for Howard Johnston had the case gone the other way.

There are times in the affairs of men when these things happen. You have to balance the rights of one person against the other and no matter what the outcome it will never be satisfactory to all.

You see, had he had testicular cancer and were no longer able to impregnate he would have been in exactly the same position.

With a bit of luck and a following wind both sperm and eggs will be stored unfertilized just in case relationships split. It certainly seems to be the prudent thing to do in the light of all the circumstances and I would argue that it would be negligent of any fertility clinic not to offer such a service.

The BBC has this rather sad story.