The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Month: February, 2010

Should MI5 etc be proscribed? (Also: You had me at genital mutilation)

The Terrorism Act 2000 allows the government to proscribe groups which:

commits or participates in acts of terrorism, prepares for, promotes or encourages terrorism or is otherwise concerned in terrorism”.

The reason I mention this is that I last heard it being used by Alan Johnson as a nuclear option against Islam4UK, the attention seeking publicity whore of a personal quest for fame that wanted to protest the killing of Muslims by British soldiers by marching with fake coffins through the place where British soldiers were marching with real coffins and so proving that you don’t need to be big, a real group or even serious about doing it to be terrifically inappropriate.

I’ve always regarded the implications of proscribing a group under the 2000 Act as ludicrously excessive – it makes it a custodial, terrorist related offence to not report seeing someone displaying the group’s logo, even if it’s being displayed ironically. It also makes it possible to go to jail for a terrorist offence if you own an ironic t-shirt. It’s just false advertising to me – these are just not what you think of when you hear “terrorist offences” and yet the Terrorism Act is what you’d be charged under.

However, the recent judgement in the trial of R (Binyam Mohammed) v Secretary of State for Foreign and Commonwealth Affairs and particularly Lord Neuberger’s comments at paragraph 168, which are currently unpublished, but to quote Jonathan Sumption were something like:

  1. that the Security Service does not in fact operate in a culture that respects human rights or abjures participation in coercive interrogation techniques;
  2. that this was in particular true of Witness B whose conduct was in this respect characteristic of the service as a whole (‘it appears likely that there were others’);
  3. that officials of the Service deliberately misled the Intelligence and Security Committee on this point;
  4. that this reflects a culture of suppression in its dealings with the Committee, the Foreign Secretary and indirectly the Court, which penetrates the service to such a degree as to under any UK government assurances based on the Service’s information and advice; and
  5. that the Service has an interest in suppressing information which is shared, not by the Foreign Secretary himself (whose good faith is accepted), but by the Foreign Office for which he is responsible.

So, bearing in mind point i, are we in a position where the Home Secretary may make it a crime to be a member of our intelligence services? Obviously not, even I’m not serious about the idea and I’m suggesting it on my blog. The thing is, he could.

NB: The inhuman treatment (David Miliband is at pains to point out that “inhuman treatment” isn’t quite as bad as “torture”, which is the sort of statement that makes you want to punch Foreign Secretaries in the face) Binyam Mohammed received includes “genital mutilation” – basically while Mohammed was in Morocco someone, presumably to make him answer questions, took a razor blade to his gentleman area. Speaking as a guy this is never acceptable and means that I, and half of the population of the world, sympathise with him on general principle. Great job, SyS.



Panorama – Are you a danger to kids?

Are you a danger to kids? I’m not, honest. Just putting that out there.

Jeremy Vine has done a Panorama report on the new child/agencies-which-deal-with-children protection scheme that is coming into force in England & Wales and Northern Ireland soon. I’m happy that it isn’t coming Scotland, I found paying for a Disclosure Scotland report for some voluntary work in high school to be bad enough. I’m a well behaved person and I understand that getting convicted of child sexual abuse is a suboptimal way to enter the graduate employment market. Also, like just about everyone else in the country, that’s not how I roll. There’s lot of doubt about this scheme but basically I think it sounds horrible – basically the government collect a lot of stuff, I’m unsure if it’s called “data” if it’s unverified rumours, about you and decide from that if you like kids an appropriate amount. They then charge you money to tell you aren’t a paedophile. I think that’s a nice touch.

I find the idea that they’re now looking for gossip in making their decisions to be utterly horrifying – the idea that your employment status effectively gets to be determined by the nosy woman who doesn’t like you because you have a blue door on your house or something makes my skin crawl. If you’re going to listen to absolutely anything the scope for abuse is insane. It’s like something out of the Crucible, I can see why they thought it might be useful but I can’t believe it actually got through Parliament.

Of course the biggest worry with these things is that the government will leave your data on the train somewhere. It’s not like it hasn’t happened before. I was horrified to see a weaselly “I am not aware of anything from the ISA [Independent Safeguarding Authority – I know, right?] being left on train” come from its chairman’s mouth on Panorama. They’re new, I’d have preferred a straight “we’ve not left anything on the train.” I’d be interested to see if they would agree to be bound by a personal undertaking – something like “my personal data will be collected, stored and processed according to data protection principles.” Having something extra and actionable should be a good way to get inaccurate personal information amended quickly.

The ISA is pretty stoic about the fact that it is difficult to prove how effective it is but appears to be going ahead with their system anyway. However, the best statistic in the episode was from checking how many calls to Childline last year were about sexual abuse by people who would be covered by the new scheme – 13. That’s not the casual way estate agents talk about thousands, that’s three more than ten.

NB: The new regime only applies to E&W and NI applies to the UK as a whole, Scotland follows later in the year, and only to people who deal with children on a weekly basis or more and through a child caring body, so family friends are OK (although I suppose you can apply regardless). However if that’s your situation it’s a crime to come into contact with children without this document, so it’s something to sort out quickly.


If someone kills me I want someone to check why

I’m politically liberal, I believe in a small state and I believe in the right to autonomy. Therefore, you’d assume, I’d be one of those wondering “how could a bereaved mother [Kay Gilderdale] be put through the agony of a trial for attempted murder?”

In fact, I think one of the most vital things that the state should limit itself to doing is, when it finds one citizen attempting to end the life of another, to come along and ask in a comically plummy voice, “what’s going on here then?”

I was reading Gilderdale’s trial was horrific but necessary to retain a vital principle – Madeline Bunting in today’s Guardian and thought that she was really spot on. I have my own issues with assisted suicide but I think her observations are vitally important too, particularly in that it’s important not to subtly (or not) encourage people to end their own lives. I’d hope you wouldn’t tell a man on a bridge to jump, so you wouldn’t do it to an elderly relative either.

I think calls that the Gilderdale trial was a mistake are entirely wrong. I think that we need to be careful to watch who we put on trial but if someone is connected with the suspicious, non-natural death of a human being (let’s hypothetically say my death) they should damn well have to explain what they were doing. People who try to end others’ lives are not the sort of people we need to keep out of court. I don’t like the idea of accepting things which let you kill people – I don’t think it ends well.

I think if you kill someone in self defence you should have to show that it was self defence, if you were provoked you should have to show that you were provoked. Self defence lets you get away with murder, we really need to be careful with that. I think if someone claims they killed someone to end their suffering they should equally have to show that they did it to end their suffering and regardless, because every single murder victim in history was going to die eventually anyway, if they were actually OK with living in suffering that should never ever be a defence.

The problem with all of homicide defences based on the victim’s conduct (self defence, battered wife syndrome, assisted suicide etc) is that it is very hard to get the victim’s side of things afterwards. It’s hard to say you didn’t hit your wife after your murder, for example, and it’s also hard to say you didn’t consent to your death. If someone wishes to escape responsibility on the basis that you wanted to die and they were only carrying out your wishes I would humbly want someone to check that out.

We don’t have a legal right to die, we have an absolute certainty to it. What we do have is a right to life. If someone dies, potentially in very violent circumstances, it is a big deal and we should accept that. There are many reason that a carer might kill their patient, or even a mother might kill her daughter which have nothing to do with dignity or choice or love or anything else that is good.

I would hate for my murderer to get off because I was sick. Don’t just take their word for it.