law


Street View is an application from Google which displays a drive-through photographic view of each road. The level of detail captured by the photographic record is comparable to that a passer by might notice. I have used it to explore the streets of my childhood. One wall where we used to play in the street looked so tall to me as a small child – but now it has unaccountably shrunk. The entrance to my primary school looks tiny. I looked to see if the crane flies and spiders webs were still there – phew, I couldn’t see them.

Street View opens up the possibility of a visual history of our lives. Quite often I pass by a demolished site and strive to remember what was there before. With one-in-seven retail sites being closed at any point, it is hard to keep up. Old houses are redeveloped. The visual landscape remains in memories and some old photographs but one cannot find a visual history. I want to rewind to the places that used to exist. Peoples’ lives were shaped by stores like Woolworths and local grocers and bakers and butchers. Mums carrying heavy bags would stop by the Lyons Corner House for a pot of tea and some cake. Dad would pop into the King’s Head for a quick pint and a smoke. These social historical landmarks have disappeared within one lifetime.

The initial British reaction to Street View is typically circumspect. Firstly, there is the Privacy argument that our homes should not appear on the internet for all to see. This is not very convincing from the country with a higher density of CCTV cameras than any place else on earth. There is no law against taking pictures from a public space (unless for criminal purposes). Residents of private roads would have a better claim to privacy. Secondly, there is the argument that burglars would find it easier to case a joint and select their getaway route using their (stolen) laptop. It is difficult to believe that this will lead to much additional crime. If only some our criminals were to adopt such a systematic approach to the rest of their lives, then they may not need to break into houses. The fact is that all new technologies enable criminal activities but these also bring new modes of fighting crime. Mobile phones are used by gangs to communicate – but phone records can be used to show the connections between the suspects and the events. Leaving a trace of a search on a particular address which was burgled could be incriminating.

Those who object to having their property viewable on the internet can request it be removed. Yet this is likely to attract more attention. Why would someone want their property to be blanked out? Perhaps they have something valuable to protect. No doubt there will be a service showing all the places that Google redacted. The fatal flaw with being a white moth in an industrial landscape is that all the predators notice you. Surely it is far better to blend into the anonymity of familiarity. Sensitive commercial or government buildings are often characterised by nondescript architecture without any signage. There is no need to depart from this stratagem.

There are plenty of groups for whom the new visual convenience will be of great benefit. Tourists will explore from afar and know what to expect. Disabled people will anticipate access issues. House hunters save legwork and petrol. Car parkers want to know where looks safe. Parents can see where their children live.

Perhaps in exchange for being allowed global domination, Google should have a Global Service Obligation to archive all systemic public knowledge. Regarding Street View, let’s define some obligtions: where vehicles obscure views, send the photocar again; update each photo regularly; create time-views going back to the earliest records. We want nothing less than the map of the world for modern times.

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The government is placing victims and witnesses at the “centre” of the criminal justice system. The Law Reform, Victims and Witnesses Act will enable anonymity of victims and witnesses in court. Appearing in court is scary enough for most people. Those who are intimidated or vulnerable would be spared having to testify in person against the object of their fears. If more people are prepared to stand up in court, there will be more convictions. This is part of the government agenda to bring more offences to justice, reflecting public sentiment.

The inherent contradiction in this approach is that we also need to ensure that the defendant has a fair trial. It is essential that the defendant should know what he or she is accused of and who the witnesses are. A witness who is granted anonymity presents two types of problem. Firstly, the fact that special measures have been taken will indicate to the jurors that the defendant is regarded as intimidating. Secondly, the possibility of challenging the evidence is restricted. Of course, we can get more convictions if we are prepared to compromise on fairness, but is this what society really wants?

Sean Hodgson has just been released after 27 years in jail for a murder that he did not commit. He was not eligible for parole since it is conditional upon an admission of guilt. He refused to admit guilt on the not unreasonable grounds that he did not commit the crime. Even though he suffered from mental health problems, he maintained his integrity and dignity.

These “miscarriages of justice” always command considerable media interest reflecting the genuine public concern that the criminal justice system should be reliably accurate in identifying perpetrators. The fact that Hodgson had originally confessed to the crime, and provided details to the police which were not generally known, demonstrates why the original conviction was beyond reasonable doubt. The conviction has now been deemed unsafe following a review of the DNA evidence. This evidence could have been reviewed over the years, but never was. It took a determined new defence solicitor, instructed following an advert in the prison newspaper, to track it down. What this shows is the vital role of the defence. The rest of the criminal justice system has little incentive to uncover exculpatory material unless prompted.

The Oxford Dictionary of Modern English defines a victim as a person injured or killed as a result of an event or circumstance. Judging by his fragile state of health as he emerged down the steps of the Court of Appeal, the released man is a victim. He will be entitled to financial compensation although nothing can make up for his loss of freedom and health. The question we have to confront is whether we want to have more Sean Hodgsons in the future – people who will be convicted on the testimony of anonymous witnesses. The criminal justice system should accurately separate out the guilty from the innocent. Stacking the odds against some defendants is going to increase the number of wrongful convictions.

How a defendant accused of serious crimes is treated at court reflects the basic moral principles of a society. There are two important aspects of the trial of Josef Fritzl in Austria – its transparency and its fairness. Both of these principles are tested to the limit.

The reporters in the Fritzl trial can only stay for part of the proceedings. The court provides edited extracts from the case at the end of each day. As a result, the public cannot find out exactly what happened in that dark dungeon, except as disclosed by the court. There appear to be two reasons for restricting the journalistic reporting from the court. Firstly, his grandchildren have to be protected from public intrusion. Secondly, the court did not want the trial to turn into an exercise in voyeurism. Whilst these concerns are understandable, there are other solutions which do less damage to justice. The children involved have already been given new identities. It is not the trial alone which brought them publicity. The fear about voyeurism is misplaced – the issues raised by the case are of wider public concern both nationally and internationally. The press reporting is not so much salacious as horrified.

The story of incestuous family incarceration is so shocking that any civilised society needs to ensure that it cannot happen again. The trial is of only one man, but the public will be concerned about the role that the authorities may have played. The perception is that Austrian society still has too many institutions that cannot be questioned. What were social services doing? Surely it was implausible that so many babies could appear from a daughter who has run away? Maybe the authorities do have something to hide. The best way of counteracting this perception is to bring all the facts into the open. Furthermore, the public needs to understand how a determined and devious character like this can develop. It is essential to get the full story from the protagonists – the defendant and the victim (“victim” rather than “alleged victim” because Fritzl has pleaded guilty to most counts). There is no substitute for their own words.

Fritzl is termed the “Incest Monster” by the Austrian press. Whether this description prejudices the outcome is unlikely since the judge will have seen the material beforehand in a less emotional setting. It is perhaps easier for a professional judge to deal with this media claims than it is for lay members of a jury. Meanwhile, throughout this process, the defence attorney has complained that he has been vilified for representing Fritzl and threats have been made to his life. His public appeal to treat Fritzl as a man and not as a monster has fallen on deaf ears. Fritzl is a man who acted as a conventional father for his upstairs family whilst treating his dungeon family despicably. He has not tried to evade conviction by claiming mental illness. The hardest thing to accept is that Fritzl is a man not a monster, albeit a man of moral contradictions.

Proceedings in family courts are not open to the public. Most people would agree that any children involved should be protected from unwarranted publicity. Yet there is a problem if the decisions made by judges never reach the public domain. Judges need to be accountable for their decisions, particularly as the lives of children and their parents or carers may be changed forever. The public needs to have confidence in the way the family courts operate. A major breakthrough was announced recently when the Justice Minister, Jack Straw, confirmed that the media will be allowed to attend and report on family proceedings. This mirrors what happens already in the youth courts which deal with criminal offences. There remains considerable judicial discretion regarding the implementation of this arrangement which gives rise to uncertainty by those affected.

The new approach allows the courts to explain and publicise their decisions, but the reporting must be in such a way that the children involved are not identified. There is some doubt as to whether this new formulation is actually an improvement. With one breath the Minister said that more information would be available from the courts. With the next breath, he said that the landmark Court of Appeal case Clayton v Clayton was to be overridden by new legislation. This is important for it goes to the heart of what we mean by open justice.

The Clayton case enabled parents to make the proceedings public after the case is over. This is not a tricky situation where one side is using the press to influence the decision maker. The publicity makes no difference to the outcome of the case. What it can do, however, is draw attention, possibly adversely, to the judicial process and the judges themselves. This is clearly over-protective. If the judges are confident that they have made the right decision they should not have to fear public scrutiny.

It is rather unusual for a Court of Appeal judgement to be reversed by new legislation. The argument given is that the “welfare jurisdiction” of the court continues after the case is concluded. This is a dubious basis upon which to impose restrictions on freedom of speech. The vast majority of concluded cases never return to court, so the claim of ownership is excessive. It is not as if the children are wards of court. They are the responsibility of their parents or carers, not of the courts.

There is a prohibition on releasing any information which may identify a child subject to proceedings. This is quite a severe restriction if it is to be interpreted strictly. Nowadays it is possible to track down the names and details of most people and their children. The internet is a rich source of information: social networking, person search, company, school, genealogy, local news etc. Hardly anybody is anonymous anymore, least of all communication-hooked teenagers. Add to that the ability to contact “friends” and neighbours and names will be revealed.

There is another way of protecting identity without damaging transparency. Rather than trying to limit the information pipe at source, unblock it and let it flow. The media would actually only be interested in the celebrities or the rare “human interest” story. Complaints and grievances from disgruntled court users hardly ever get aired in the media. If the media go too far beyond the public interest, then they will have to face actions for breach of privacy.

Our criminal justice system achieves a very high conviction rate. Magistrates courts deal with around 1.75 million defendants a year. Only 10% of these are contested. The prosecutors have got better at weeding out the cases for which they are unlikely to secure a conviction. The overall conviction rate is so high (c.99%) that the Ministry of Justice does not publish it in the court statistics. In the Crown Courts, where the more serious cases are heard, over two-thirds of defendants plead guilty. However, of those that plead not guilty, 61% are acquitted.

Those who want to be tougher on crime can point to the increasing number of convictions. The police would say that they have no interest in taking an innocent person to court. They act on the presumption of guilt. Those who favour the importance of human rights can point to the high acquittal rate. They are activated by the presumption of innocence. The presumption of guilt is compatible with the presumption of innocence because they are held by different institutions: prosecutors and courts respectively. The presumption of innocence is a legal device whereby the burden of proof is placed on the prosecution.
The DNA database is said to undermine our civil liberties. However, it is not apparent that it strengthens the presumption of guilt. There will be more convictions since more perpetrators of crime may be detected. There will also be more acquittals since DNA is capable of absolving the accused as well as providing compelling evidence for the prosecution.
More pressingly, the presumption of innocence can be eroded prior to the trial if the evidence is gathered unfairly, thus undermining the requirement for a fair trial. Investigators can take short cuts or break the rules. The rules of evidence are notoriously complex in common law countries like the UK and USA. Defendants should only be left to represent themselves in the most straightforward and minor of cases. Where liberty or livelihood is as stake, then a professional defence is essential. For those who are unable to pay for their defence, which is most people before the courts, adequately funded legal aid is essential.
The problem is that those who set the budget for legal aid are influenced by those who see the criminal justice system as a kind of conveyor belt driven by performance targets. It may only be when we get too many miscarriages of justice that there will be any political change of heart.

Legal costs used to be based upon hours but this does not provide an incentive for lawyers to be time-efficient. Costs escalated. Managing legal costs involved squeezing down the scale of the work or the hourly rate of pay. Hence, purchasers of legal services shifted to alternative remuneration models with contracts for fixed or formula-based fees.

One of the enabling factors for this shift has been the availability of legal cost databases. Using statistical techniques, thousands of individual legal transactions can be summarised into a formula. Packets of work are identified: a law case is assigned standard amount of time. If the volume of cases is large enough then a “swings and roundabouts” argument can be made. Losses on one case can be made up by gains on another case. This is an economy of scale and leading to the demise of smaller legal practices.

Packetisation is suitable for transactional activities such as conveyancing. However, when it extends into the criminal justice system there is disquiet. As crime, and expenditure on crime has risen, publicly funded lawyers have to work within tighter case budgets. The UK already spends more per capita on criminal defence than any other country in the world and there is no political appetite to increase expenditure. The scope of criminal legal aid has been progressively reduced. Soon those facing jury trials will be subject to a means test.

Quality inevitably suffers when the time spent per case is limited. Less time is spent with the client. Elaborate case preparation is precluded. Clients may feel pressured to accept a solution that they do not really want. The delivery of justice is changing to be more affordable. The question is whether this changes the nature of justice – a question to which I will return.

The ancients were not allowed to meet face-to-face with their ruler. They would stoop low to show obeisance. Bowing can be quite a sophisticated art when conducted properly. A vestige of this is to be found in the etiquette when encountering the Queen. The practice is being revived in an unexpected manner. Media types tell us that it is now illegal to take photographs of police constables. As the police symbolise State authority, it seems we can no longer look at photographs of our rulers.

The relevant statute is the Counter-Terrorism Act 2008 which makes it an offence to elicit information about a constable which is likely to be useful to a terrorist. Since taking a photograph may be construed as eliciting information, then photographers could find themselves arrested.

Any citizen wary of oppressive government will wonder if this is another example of the State over-reacting to the “terrorist threat”. However, looking more closely at the law, a different story emerges. The latest Act amends an earlier one – the Terrorism Act 2000 – which had already prohibited photography useful for terrorism. The amendment makes it clear that the prohibition includes taking photos of police constables. The logic of the prohibition is as follows:

2000 Act: Do not take photos useful for terrorism.
2008 Act: Do not take photos useful for terrorism including photos of constables.

The scope of the 2008 Act was already included in the 2000 Act. It was already illegal to take photographs of constables if useful for terrorism. Yet the 2008 Act has generated much ire. People seem to ignore the logic of inclusion. Cognitive psychologist have a name for this – the Inclusion Fallacy.

There are two explanations for the Inclusion Fallacy in the political context: the trigger effect and the short-term memory effect. The first is based on the notion that an underlying grievance needs a trigger to bring it to public attention. Photo-journalists will naturally be keen to ensure that their freedom does not get usurped by the law-makers. They need the trigger to raise it up the political agenda and perhaps deter the government from pursuing even more restrictive policies. The short-term memory effect ignores the past. What counts is the here and now, the latest change. Given that the amendment specifies police constables then, under this view, the government must be tightening up on photographing constables.

Should we be worried? The latest amendment has arguably reduced the likelihood that a photographer would get arrested in normal circumstances. The courts will know that there is an emphasis on protecting members of the security forces and police constables who may be the target of terrorist activity. Crucially, police will need to be reasonable in enforcing the prohibition on photography. Nobody wants tourists outside Buckingham Palace to be arrested. Ironically, it is not prohibited to take a photograph of our Monarch when she fulfilling her public duties.