Wednesday, February 18, 2009 

Abu Qutata?

The somewhat surprising decision by the House of Lords to overturn Abu Qatada's successful appeal against his deportation to Jordan is a faintly disturbing one. Qatada's appeal, although based on what he claims would be breaches of various articles of the European Convention on Human Rights, was only upheld on article 6, the right to a fair trial. The Special Immigration Appeals Committee, which hears evidence in secret and where the appellants are represented by special advocates, had already held that despite Jordan's undoubted deficiencies in its legal system, Qatada's deportation could only be thrown out if there was likely to be a "flagrant" breach of his right to a fair trial under article 6.

The law lords, in turn, have agreed with the initial decision and threw out the appeal court's ruling that SIAC had erred in not putting enough weight on the possibility that the evidence against Qatada was the result of torture. Lord Phillips, in the ruling, argues (paragraph 153):

I do not accept, however, the conclusion that he has derived from this, namely that it required a high degree of assurance that evidence obtained by torture would not be used in the proceedings in Jordan before it would be lawful to deport Mr Othman to face those proceedings. As Buxton LJ observed, the prohibition on receiving evidence obtained by torture is not primarily because such evidence is unreliable or because the reception of the evidence will make the trial unfair. Rather it is because “the state must stand firm against the conduct that has produced the evidence". That principle applies to the state in which an attempt is made to adduce such evidence. It does not require this state, the United Kingdom, to retain in this country to the detriment of national security a terrorist suspect unless it has a high degree of assurance that evidence obtained by torture will not be adduced against him in Jordan. What is relevant in this appeal is the degree of risk that Mr Othman will suffer a flagrant denial of justice if he is deported to Jordan. As my noble and learned friend Lord Hoffmann said in Montgomery v H M Advocate [2003] 1 AC 641, 649

“…an accused who is convicted on evidence obtained from him by torture has not had a fair trial. But the breach of article 6(1) lies not in the use of torture (which is, separately, a breach of article 3) but in the reception of the evidence by the court for the purposes of determining the charge".

The reason why this decision is so troubling is obvious: the Lords have not only ruled that they accept that the trial Qatada is likely to face in Jordan would not reach the standards we would demand under article 6, but also that it's additionally likely that the evidence against him is the product of torture, as he himself claims. This however does not still add up to what the Lords would consider to be a "flagrant" breach of article 6, which is the threshold at which deporting Qatada to Jordan would be unlawful.

Qatada is quite understandably taking his case to his last port of call, the European Court itself, where the ruling could quite possibly turn out to be another landmark, similar to Chalal vs United Kingdom. Nothing should as yet be ruled out, as the House of Lords ruling is in itself something of a surprise, and one which has been criticised by all the main human rights groups.

It has to be said that it is a horrifically difficult decision to have to make, one which Lord Hope authoratitavely comments on at the beginning of his own argument, something well worth quoting in full:

209. Most people in Britain, I suspect, would be astonished at the amount of care, time and trouble that has been devoted to the question whether it will be safe for the aliens to be returned to their own countries. In each case the Secretary of State has issued a certificate under section 33 of the Anti-terrorism, Crime and Immigration Act 2001 that the aliens’ removal from the United Kingdom would be conducive to the public good. The measured language of the statute scarcely matches the harm that they would wish to inflict upon our way of life, if they were at liberty to do so. Why hesitate, people may ask. Surely the sooner they are got rid of the better. On their own heads be it if their extremist views expose them to the risk of ill-treatment when they get home.

210. That however is not the way the rule of law works. The lesson of history is that depriving people of its protection because of their beliefs or behaviour, however obnoxious, leads to the disintegration of society. A democracy cannot survive in such an atmosphere, as events in Europe in the 1930s so powerfully demonstrated. It was to eradicate this evil that the European Convention on Human Rights, following the example of the Universal Declaration of Human Rights by the General Assembly of the United Nations on 10 December 1948, was prepared for the Governments of European countries to enter into. The most important word in this document appears in article 1, and it is repeated time and time again in the following articles. It is the word “everyone". The rights and fundamental freedoms that the Convention guarantees are not just for some people. They are for everyone. No one, however dangerous, however disgusting, however despicable, is excluded. Those who have no respect for the rule of law - even those who would seek to destroy it - are in the same position as everyone else.

211. The paradox that this system produces is that, from time to time, much time and effort has to be given to the protection of those who may seem to be the least deserving. Indeed it is just because their cases are so unattractive that the law must be especially vigilant to ensure that the standards to which everyone is entitled are adhered to. The rights that the aliens invoke in this case were designed to enshrine values that are essential components of any modern democratic society: the right not to be tortured or subjected to inhuman or degrading treatment, the right to liberty and the right to a fair trial. There is no room for discrimination here. Their protection must be given to everyone. It would be so easy, if it were otherwise, for minority groups of all kinds to be persecuted by the majority. We must not allow this to happen. Feelings of the kind that the aliens’ beliefs and conduct give rise to must be resisted for however long it takes to ensure that they have this protection.

That's around as detailed and sound an argument against the tabloid case for kicking them out immediately that could possibly be made. It's therefore a shame that Lords have effectively ruled that both unfair trials and evidence obtained by torture, as long as both occur outside the countries which have signed up to the ECHR and as long as the breach is not deemed to be "flagrant" are in some way acceptable. It's true that this is not their argument, which is as legally sound as it could possibly be, but that is in effect what they have decided. It comes, as we have seen, at a time when our own connivance with torture is being exposed as never before, when questions are being raised about how deeply involved we have been during the initial stage of the so-called war on terror with almost routine breaches of international law. It gives the impression, however undeserved, that our own values concerning such practices are becoming more jaded and diluted just when the opposite should be the case.

Fundamentally, the extended legal drama concerning Qatada should not have ever even began. If Qatada is as dangerous as the government claims he is, and if he is indeed guilty of inciting racial hatred and radicalising Muslims as he is accused of doing, the question remains why he cannot be tried here. Similarly, we still don't know just how involved Qatada was with our security services, when there are claims in the public domain that he was a double agent, albeit one it seems who is still reasonably well respected within takfirist jihadist circles. If the evidence against him cannot currently be considered outside of closed sessions, then intercept evidence needs to be introduced, although it needs to be in any event urgently. Both of these things should have been considered and potentially implemented before we resorted to simply getting rid of him, back to a country with a poor human rights record that by our own courts' admission would not reach our own standards regarding a fair trial. Instead we seem to be making compromises regarding torture that we need not be. That is an indictment of our politicians, rather than our courts of law.

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Friday, November 16, 2007 

Scum-watch: The day in a life of the tabloid.

Occasionally, you can get a complete picture of the world view of a newspaper simply by reading just one issue of it. While with most, especially the broadsheets, you might broadly know what it's in favour of, to really understand its exact philosophy you'd have to study it over a number of days, if not longer. Today's Sun, in one sense, is a masterpiece of gutter journalism: it gets its message across, leaves no nuance, uses the most alarmist, provocative and brutal language, and when it needs to, or doesn't need to, it lies and systematically distorts.

The report on Lord Chief Justice Phillips' speech to the Howard League for Penal Reform is partially the result of the tabloid conundrum: how do you convert a speech running to 26 pages in a PDF into a minor article of just over 200 words? The answer is that you only focus on a tiny piece of the actual speech, that of Phillips quite reasonably saying that the prisons are full to bursting and that Labour is chiefly responsible for that fact. On that, the Sun would broadly agree; what it doesn't agree with is that Phillips dares to believe that there is a better option rather than that of building ever more prisons, something he goes into at length in the actual speech. All this adds up to in the Sun's reportage is that he compares the price of 30 years' imprisonment to how it could be spent on education or health, one of his weakest arguments, considering that only murderers or terrorists are ever sentenced to 30 years, while ignoring his more coherent and forceful points about prisons in general. Then examine the language: rather than those in prison being offenders or criminals, they are variously either "villains", a Victorian way of describing them if ever there was one, or "crooks".

To further make clear the Sun's own viewpoint, the same journalist who wrote the report also submits a short "comment" piece, on the same page. In his words, "a record 80,000 villains are off our streets and behind bars," and when making the distinction between prison and other punishments, he describes the alternative to prison as "fines and soft community sentences." The latter part of Phillips' speech is dedicated to community punishments, which the Sun deems soft, and how they can be strengthened, yet none of this is deemed important enough to be distilled to the reader, presumably because it just might undermine the journalist's quavering indignation about it all: "Once again, the Lord Chief Justice has shown how out of touch he is. Ordinary people WANT crooks to be banged up." Phillips is so out of touch that he himself went on a day's community punishment "undercover" to see what it was like, and he describes his experience during the speech, something that a Sun hack is never likely to do, except to expose how "useless" they are. The statement that ordinary people WANT crooks to be banged up is the Sun pretending to be speaking up for the commoner, when there is no evidence to show that the general public do want "crooks" to banged up. Indeed, a recent Grauniad poll found the country split down the middle on whether the solution was more prisons. The Sun does have previous on distorting Phillips' public utterances; this time, rather than coming out with it in the actual report, it does it by its side instead.

Next up, the Sun reports on our friend Robert Stewart who was caught having sex with his bicycle. Another lesson in tabloid language: like with the various adjectives for criminals, he's a perv, a weirdo and an oddball. He might quite possibly be all three, but whether he ought to be humiliated any more for what he did is another matter.

Following on from prison and sex, the Sun settles on another best-seller and a moral panic to boot: the kids are most certainly not all right. Taking the government's survey of 115,000 10-15 year olds (PDF), it selects only the most troubling data from it and leaves all the rest on the editing floor:

"BINGE drinking, drug use and smoking is RIFE among Britain’s schoolchildren, an alarming new survey reveals.

At least one in seven kids aged 12 to 15 has dabbled with illegal substances, it found."

It starts by removing the 10 to 11 year olds from the equation so that the figures are even more potentially scare-worthy. The survey asks how many have taken an illegal substance in the past four weeks for example, with 80% saying they've never taken drugs, 7% saying they haven't in the last month, 9% that they've smoked cannabis, 3% solvents, 3% other drugs and 6% prefer not to say. Doesn't look so frightening then, does it? That's the thing with statistics, they can be incredibly easily manipulated, something that the Scum has accused the government of doing, but which it seems also more than prepared to do itself. It does this partially by converting the percentages into one in however many, which the average layman is less likely to easily understand, so that those who have taken a Class A drug becomes 1 in 30, which is almost meaningless unless you put it the context of it being the equivalent of around one child in the average class taking such a substance. It also doesn't make clear that the figures refer to in the last month, so it becomes "takes", giving the impression that they're regular users when that might not be the case at all.

Half of kids aged between ten and 15 admit to underage boozing and a fifth regularly get drunk. And more than one in five has smoked a cigarette.

Again, the question here was have you ever had an alcoholic drink, not just a sip. Unsurprisingly, 48% said yes. Most 10 to 15 year olds would have at some point in their life had a drink, and some parents might even encourage the continental approach of a glass of wine or similar with a meal, but the Sun converts innocent or supervised drinking into "underage boozing". More potentially worrying is that 40% of those over 13 admit to being drunk once in the last month, but the Sun strangely doesn't use that stat. 73% say they have never smoked a cigarette, which again, doesn't get an airing.

Tories last night claimed the figures were more proof of Britain’s “broken society” under Labour. Shadow children’s minister Tim Loughton said: “Gordon Brown is in denial about this problem, and his Government is unable to offer any solutions to it.

Finally then, we get the standard quote from the opposition political party capitalising on the more troubling parts of the survey. If anything, it actually provides plenty of evidence against the Tories' bullshit about the "broken society"; the biggest worry is exams, with 51% concerned by them, rather than bullying, which worries 25%. It certainly doesn't suggest that there has been a moral breakdown, or that today's children are any worst behaved than earlier generations. The best summings up are provided by the chief inspector of schools, and amazingly, Ed Balls:

"The survey presents much that is positive about life for children and young people today. However, it is also clear that more needs to be done to address children and young people’s worries and concerns about how safe they feel; about exams and tests; and about what would help them learn better and where they need to go for help when they have a problem."

"This survey shows that the majority of children and young people in England today feel happy, safe, enjoy life and are doing well at school. But the survey also shows challenges and pressures that we need to address with decisive action."

Right, so we've had crime and prisons; sexual perversion; kids on drugs and booze; what's left? Of course, immigration!

THE NUMBER of migrants coming to Britain has hit a record high – as officials admit underestimating figures AGAIN.

Some 591,000 arrived last year – up from 327,000 a decade ago.

Of the 400,000 leaving to go abroad, just over half were UK citizens – the first time that figure has gone above 200,000.

The figures were published as officials said the number of arrivals in 2004 and 2005 was 41,000 HIGHER than predicted.

Earlier this month ministers admitted 1.5million migrants had come to Britain since 1997 – TWICE their original estimate.

Here the Sun is hedging its bets ever so slightly. The number of migrants arriving here last year was a record - but only by 5,000 on 2004's figure. When you take into account that the net migration figure that year was 244,000, as compared to last year's 191,000, due to the rise in emigration, 2004, the year the A8 new European states joined, was in actual fact when the highest net number of migrants arrived. The Sun doesn't comment on the emigration figure, which includes just less than half of those who had already come here to work going back home, probably because that undermines the idea that all those who have migrated here have stayed. Figures for those who come here for less than a year then return home aren't kept; they're counted in, but not counted out, which also distorts the figures somewhat. Instead of pointing out how the figures of those migrating here have now dropped for two years, and that the emigrant figures suggest that we're now becoming a revolving door rather than a permanent stop for migrants, the Sun brings back up the mess up from earlier in the month, but gets it wrong. 1.5 million migrants have taken up new jobs since 1997, not have simply come here.

After all of that, we have the very voice of the Sun itself, just in case you can't detect it in any of the above. As the Sun often does, it returns to one of its very favourite themes - and lies about it. (Again, the article seems to have disappeared into the ether with it changing to tomorrow's leader rather than leaving a permanent entry, so you'll have to trust me on what it said.)

RABBLE-rousing Abu Hamza has used our liberal system of justice to get away with murder — almost literally.

Which is completely untrue to begin with. He hasn't got away with anything - as his current stay in a prison cell demonstrates. If the Sun's really so outraged by how long Hamza escaped justice for, it perhaps ought to take it up with the security services, who were more than aware of what Hamza was up to and might well have even had an agreement with him regarding how as long as he didn't advocate violence against the UK itself they left him alone.

Three of the four 7/7 Tube bombers were radicalised while attending the Finsbury Park mosque where he spouted his evil creed.

This is the real lie. There is no evidence whatsoever that the bombers were radicalised while visiting the Finsbury Park mosque; indeed, if they ever did attend it. The only source that has ever alleged that three of the bombers listened to Hamza was the Times, in just one story the day after Hamza was sentenced. No other newspapers have seen fit to investigate and follow up this potentially explosive revelation, which is usually the sure sign of it being untrue.

Convicted 9/11 conspirator Zacarias Moussaoui and shoe-bomber Richard Reid were fans.

Established facts? In the Sun? Amazing!

It was only after a campaign led by The Sun that he was locked away for inciting murder.

Ah yes, it was the Sun wot did it!

Some might balk at this post and wonder what the point of it is meant to be. After all, tabloids are meant to be provocative, entertaining, and strong, unrelenting voices: not all of us are going to want the staid tones of the Times or the Grauniad, or the pompous handed down opinions of the "commentariat"; that's why so many enjoy swearblogging and fisking, preferably with gratuitous insults. That's all more than fair, and I'm certainly not suggesting that they should be stopped from doing any of the above. It's also probably true that the tabloid press are not any worse than they've ever been; certainly, they have to now crouch pieces that would previously have been openly racist and bigoted in less certain terms, or cushion the blow through mealy-mouthed language which actually adds up to the same thing. It has to be remembered however that the Sun is still the highest selling newspaper in the country, shifting over 3 million copies. For some people, this newspaper is the main source of news, or the only source of news for those who aren't that interested. Through such openly biased, unfair and in some cases plain wrong reporting, a completely false image of this country comes across. As the quote at the top of this blog suggests, the very nature of the press affects the nature of politics, and who can argue that the Sun, or its owner, doesn't wield power that most politicians themselves would kill for? The examples in this post are just a small snapshot of how it sets about setting its own agenda on just one day. Isn't it time, rather than just blaming the politicians for the cynicism with which the public views politics, that we examine the fourth estate's role in furthering the disconnect that seems to be becoming ever more pronounced?

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Saturday, March 10, 2007 

Scum-watch: Lies, damned lies, and "soft" judges.

Do the tabloids ever properly report "controversial" speeches or reports? I only ask because in the reasonably short time I've been writing this blog, I've noticed that so-called journalists in the popular press are addicted to at best distorting what has been said/written and at worst printing out right lies about the arguments being put forward. The previous Audit Commission report on immigration was a case in point: taking slight concerns and magnifying them to such a point that it looks as if the sky's about to fall.

Thursday's speech by Lord Phillips at the University of Birmingham, simply titled Issues in Criminal Justice - Murder, is mostly a discussion about the difficulties in sentencing those convicted of homicide. In it, Phillips' is critical of the mandatory sentences which the 2003 Criminal Justice Act brought in, and analyses the recommendations of the Law Commission (PDF) which suggested introducing first and second degree homicide, similar in some ways to the system in America. The full speech is available here (PDF), clocking in at over 9000 words of scholarly discussion, examining different cases involving murder and how they've been dealt with.

From these 9000 words, the Sun has managed to come out with a story headlined:

Top judge: Let killers out of jail

Let's get the pedantic points out of the way first. Not once in the whole speech does Phillips use the word killers. Nor does he say jail. In fact, nowhere in the entire speech does Phillips so much as suggest that those found guilty should be let out of prison early.

KILLERS should be let out of jail early to ease the prisons crisis, says Britain’s top judge.

No he didn't.

Lord Chief Justice Lord Phillips warned that jails would be stuffed with “geriatric” inmates if no action was taken.

Here's what Phillips' actually says about geriatric lifers:

Most ‘lifers’ are released on licence after they have served a period of imprisonment on the recommendation of the Parole Board. They are, however, subject to recall to serve the rest of their sentence if they breach the terms of their licence. How long they serve before being considered for release is now determined by the judge who sentences them. He has to specify a minimum term which the defendant must serve before being considered for release. In fixing the minimum term the judges have to apply guidance laid down in the Criminal Justice Act 2003. The effect of that Act has been in many cases almost to double the length of time that those
convicted of murder will stay in prison. In thirty years’ time the prisons will be full of geriatric lifers.

Nothing about taking action. Simply a statement that is likely to be proved accurate.

He suggested the country would look back in shame in 100 years time at the length of sentences for killers and rapists — and claimed it was “barbaric” to cage them for so long.

Nowhere in the speech does Phillips use the word barbaric. Here's what he does say about the length of sentences, coming at the conclusion of his speech:

Sentencing is a major topic, and it is too late in the day to embark on it. Let me simply say that I have reservations about the current guidelines. The gap between the 15 year starting point and the thirty year starting point is immense. It is the difference between a determinate sentence of thirty years and one of sixty years. If sentences are to be just, then the effect of mitigating and aggravating factors should be very significant, so that sentences fill the spectrum between these two starting points. I am not sure that in practice they do, and I believe that the starting points are having the effect of ratchetting up sentences in a manner that will be regretted many years hence.

In other words, a highly nuanced and detailed argument which lists Phillips' concerns about how sentences, thanks to this government's kowtowing to the tabloids especially, are getting longer and longer. With a prison population of 80,000, with no sign that it's causing crime to drop, and with evidence suggesting that the overcrowding is causing re-offending rates to soar, it's right to be concerned that we may well be on the wrong track. The introduction of indeterminate sentencing, where someone can be kept in prison for the rest of their life even once they have finished their minimum term if they're considered a danger to the public, is one of the reasons for this leap. The latest statistics released on those currently in prison, from January of this year, makes this point in the summary (another PDF):

The largest proportionate increases since January 2006 were for those sentenced to indeterminate sentences (Life sentences and Indeterminate sentences for Public Protection) which increased by 31 per cent.

There were then 8,750 prisoners serving indeterminate sentences. For a sentence that has only been recently introduced, its use is both worrying and gives the lie to the belief that judges are too soft.

The Sun goes on to quote everyone's favourite rent-a-cop on crime, Norman Brennan:

“Lord Phillips has taken leave of his senses if he believes that releasing murderers early will help alleviate the prison population.

If he had actually said that, he might well have done. He didn't.

He also makes the comment that prisons risk becoming full of geriatric lifers, but that has to be the case if necessary. At least they still have their lives.

Quite right. Keeping men who can't go to the toilet by themselves in prison and who are by that fact no threat to anyone makes perfect sense. At least they have their lives - until they die in their cells, anyway.

The Sun does at least go on to quote Phillips somewhat accurately:

“I’m not in favour of mandatory sentences, full stop. If sentences are to be just, then the effect of mitigating and aggravating factors should be very significant, so that sentences fill the spectrum between these two starting points.

All Phillips is really calling for is for judges to be given the power to once again decide a case by what happened - for every single one is different. With mandatory sentences, this is made much more difficult. Not Saussure goes into this in much more detail.

On then to the Sun's leader:

YOU might think our judges would at least be good at listening.

We should be so lucky.

If you want proof that they are deaf to public opinion just hear what our top man-in-a-wig has been saying.

Lord Chief Justice Lord Phillips believes prison sentences should be shorter. Murderers spend too long behind bars. Parliament should not be able to fix minimum terms.


All he said was he thought we would look back with regret at some of the lengthy sentences now handed down, not that any should be shorter. He didn't say murderers spend too long behind bars. He also didn't say parliament shouldn't be able to fix minimum terms, just that he isn't in favour of mandatory terms. Even then he doesn't say that parliament shouldn't be allowed to set minimum or mandatory terms. Here's what he actually said:

I said that murder is a political hot potato and this is why altering the mandatory life sentence is not on the agenda.

He doesn't like it, but he realises that in the current climate, helped along by the ever increasing shrieks of the Sun, nothing can be done about it.

Lord Phillips should get two things into his skull.

That he is a servant of people who are much more likely than he is to be victims of the very criminals he wants to go soft on.

And that no one elected him.

If this the response that judges get for floating ideas and so much as slightly stepping out of line, it's little wonder that they get fed up with the way they're dictated to both by the media and politicians. Incidentally, no one elected Rebekah Wade. No one voted for Rupert Murdoch. We have to put up with them, just as the Scum has to put with judges daring to suggest that in years to come we might regret our draconian approach to crime.

P.S. Here's the Telegraph on Phillips' speech, which proves that reporting these speeches can be achieved without slipping into faux-outrage, not to mention making things up. The Express, on the other hand, similarly distorted the judge's lecture.

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