Disclaimer: Writing this article breaks my long-standing rule never to write about either the Middle East or Abortion. I know little about either subject, and have no particular interest in either moral quagmire, so I generally seek to avoid the grief that inevitably ensues from people who know as little as I do, but don’t consider that a barrier to being dangerously interested in them as political disputes. I do not identify as either pro-life or pro-choice. For the purposes of this article I make no statement about the underlying issue of abortion. I am interested in prosecutorial discretion, and its limits.
This article is about Abortion. More particularly, it is about the decision of the CPS not to prosecute doctors caught agreeing to abortions on the grounds of foetal gender, as exposed by an investigation in the Telegraph.
There are a variety of offences in connection with abortion. After the 28-week mark, the charge might be ‘child destruction’ contrary to section 1(1) of the Infant Life (Preservation) Act 1929. More often, the offence charged is to be found in sections 58 and 59 of the Offences Against the Person Act 1861 (the same statute that gives us GBH and Bigamy).
Section 58 concerns administering drugs or using instruments to procure abortion. Section 59 concerns procuring drugs, instruments or any thing with the intent to be unlawfully used with the intent of procuring an abortion. The Abortion Act 1967 itself only creates one offence – section 2(3) is a summary offence relating to wilfully breaching the certification and record-keeping demanded of doctors under the Abortion Regulations 1991. Otherwise, the Abortion Act 1967 doesn’t create offences, but rather provides defences for what would otherwise be breaches of ss58/59 or (at s5(1) of the Act) the Infant Life (Preservation) Act 1929.
Other than cases of life and limb or serious foetal disability, the Abortion Act 1967 gives an absolute defence – to pregnant woman, partner, doctor, or whomsoever - if the abortion arises after two registered medical practitioners are of the opinion, formed in good faith, that “…the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family” (section 1(1)(a)).
The discretion afforded doctors is very wide – ‘good faith’ simply requires honesty, integrity and genuineness, but doesn’t include any objective standard, such as reasonableness, or rationality, or lack of negligence: see for example SNCB Holding v UBS AG  EWHC 2044 (Comm).
Whether or not a doctor acted in ‘good faith’ is a matter for the jury to be decided on the totality of the evidence, per the Court of Appeal in the leading case of R v Smith (John Anthony James) (1974) 58 Cr App R 106. Proving – beyond reasonable doubt – that a defendant doctor acted other than in good faith is very difficult for the prosecution. This might explain why prosecutions of doctors for abortion offences are so rare. Beyond R v Smith, the only other post-1967 conviction of a doctor I have found was overturned on appeal: R v Price (Herbert)  1 QB 541.
That being the background, what general rules do the CPS follow in deciding whether or not to prosecute a suspect? The ‘full code test’ has two parts: first, the CPS will assess whether there is sufficient evidence that there are reasonable prospects of securing a conviction. The Telegraph article includes the CPS statement indicating that in four cases relating to medical professionals referred by the newspaper, the decision was taken that there was not enough evidence.
If there is sufficient evidence, then the second part of the test is whether or not a prosecution would be ‘in the public interest’. The criteria for the public interest are given in detail on the CPS website, but broadly include seriousness of the offence, culpability of the suspect, age of suspect, harm to victim and proportionality. For avoidance of doubt, abortion offences mentioned above are certainly considered serious as a matter of law: child destruction is Class A, s58 is Class B, s59 is Class C.
However, it is not clear that there has been an offence committed under ss58 or 59 here. No abortion was in fact performed, which renders s58 largely moot. It seems unlikely that specific instruments or drugs were procured for the abortion to be performed on the Telegraph’s sting operative. Procurement under s59 must itself be unlawful, and be with intent to be unlawfully used – this goes further than merely the absence of good faith: the doctor would have to intentionally be procuring drugs or instruments with the intent that their use should be unlawful. Actual bad faith must be proven beyond reasonable doubt.
In R v Ahmed (Ajaz)  EWCA Crim 1949, a husband accompanied his wife to the doctors to procure her an abortion, as she did not speak English. An Urdu-speaking nurse told the wife just before the procedure that it was a termination, and the wife was horrified. However, s59 did not outlaw ‘procuring an abortion’, but procuring things that could be possessed and transferred from one person to another, like poisons or surgical instruments (per R v Mills  1 QB 522). It was not apt to cover ‘arranging a surgical procedure’. Ahmed’s appeal was allowed.
Already then, in the absence of an abortion taking place, it is not clear what offence has clearly been committed by the doctors, unless their record-keeping breached the Abortion Regulations 1991. That would explain CPS’ Jenny Hopkins reliance on the Criminal Attempts Act 1981. This would, as far as I can tell, be a novel development in English law. There are some Scottish cases (different laws on abortion) that have considered ‘attempts’ (as a species of crime) in connection with abortions – see HM Advocate v Baxter (1908) 16 SLT 475; HM Advocate v Anderson (1928) JC 1; HM Advocate v Semple (1937) SLT 48 – see also the differing approaches of the English and Scottish courts on attempt, referencing these cases in Docherty (James) v Brown (1996) JC 48.
From the outset, a successful prosecution on the basis of combining ss58/59 with the Criminal Attempts Act 1981 would have to overcome significant legal obstacles. Is the mere agreement of the doctors an act that is ‘more than preparatory’ of the underlying offence? And is R v Smith (supra) (pp109-110) authority that the proper exercise of good faith discretion must simply be prior to the actual time at which the operation is undertaken (obviating a prior bad faith decision)? Such a case could open up a legal minefield.
Although the offence would be relatively serious (if it had been committed) the offence of ‘attempt’ would not rank so highly in the CPS calculation. There was no harm caused to any victim, and the culpability of the doctor is - it might reasonably be said - a matter much better left to the GMC than the CPS or a jury.
Ann Furedi, the CEO of the British Pregnancy Advisory Service (BPAS), noted the law’s silence on foetal gender as a grounds for abortion, allowing that it would be wrong only in some circumstances. Her position, whilst controversial, is probably correct in law. There is no express statutory provision prohibiting abortion on the grounds of foetal gender, and s1(2) of the Abortion Act 1967 says ‘account may be taken of the pregnant woman’s actual or reasonably foreseeable environment’ – sometimes translated as ‘social reasons’, though the impact must be on the pregnant woman’s physical or mental health.
The gender of the foetus could legally – even legitimately – play a role in the doctor’s good faith exercise of discretion: if, for example, a pregnant woman knew that a her religious male partner would insist (against her very strong wishes) on circumcision of their child if it was one gender (but not the other), the inevitability of such surgery might be of massive significance in predicting her mental health during pregnancy. Irrespective of the moral rights and wrongs of the decision, a doctor could surely in good faith consider the foetus’ gender relevant – even determinative - for the purposes of the Abortion Act 1967.
The key factor is the ‘good faith’ exercise of the doctors’ discretion. As a general rule, courts are reluctant to challenge the exercise of discretion by qualified experts unless they are far outside the accepted bounds of professional decision-making. Laws LJ, in R (ex parte Pro-Life Alliance) v BBC  EWCA Civ 297, remarked obiter dicta at §6 that many doctors apparently considered any pregnancy posed a greater risk of injury to a pregnant woman than an abortion, and so there was de facto abortion on demand.
The courts have said that the Abortion Act 1967 follows the common law as laid down in R v Bourne  1 KB 687, namely that the legality of an abortion depends on professional medical opinion of the patient. This imposes a significant social burden on doctors, but also on the regulator: the General Medical Council. Indeed, in Paton v BPAS  QB 276 (a civil claim by a husband seeking an injunction against his wife from terminating a pregnancy) Sir George Baker P said at pp281-282 that:
“My own view is that it would be quite impossible for the courts in any event to supervise the operation of the Abortion Act 1967. The great social responsibility is firmly placed by the law upon the shoulders of the medical profession …
This certificate is clear, and not only would it be a bold and brave judge (I think Mr. Rankin used that expression) who would seek to interfere with the discretion of doctors acting under the Abortion Act 1967, but I think he would really be a foolish judge who would try to do any such thing, unless, possibly, where there is clear bad faith and an obvious attempt to perpetrate a criminal offence. Even then, of course, the question is whether that is a matter which should be left to the Director of Public Prosecutions and the Attorney-General. I say no more for I have stated my view of the law of England.”
In the circumstances, I’m not sure that the Telegraph investigation showed clear bad faith and an obvious attempt to perpetrate a criminal offence. The discretion afforded to doctors is wide, and the CPS – whether rightly or wrongly – I think was clearly within its rights to determine that this was better dealt with by the GMC than by a Crown Court jury. I do not think that the CPS’ decision – namely, its discretion in assessing a doctor’s discretion – could be described as either irrational or Wednesbury unreasonable. Even if morally repugnant to many, it was almost certainly a conclusion within the bounds the CPS could reasonably reach. I would expect the decision to easily resist judicial review.
I have yet to examine my own conscience to reach a settled view on the morality of what has been uncovered by the Telegraph. But as a matter of purest law, I find myself much less outraged at the CPS decision than most of the reaction I’ve seen, and so I hope that this article has done something to at least explain how their decision might be legally – if not morally – justified.
Thoughts - on the law, not on abortion - welcome. Reach me by sending a message to @Greg_Callus on Twitter.
UPDATE 09:11 I’m grateful to @RobertaWedge for pointing out that on two occasions I originally referred to ‘mother’ and ‘father’, rather than the more legally correct (and less emotive) ‘pregnant woman’ and ‘partner’. Apologies - perils of writing at 2am! I’ve changed those, but have kept references to ‘husband’ and ‘wife’ when referring to cases where the official reports explain the parties’ relationship that way.
There’s little point the police investigating Nigel Kennedy for electoral fraud - it’s already too late for a prosecution to be brought
This week saw the death of Sir David Frost, who wrung such admissions of guilt from Richard Nixon in 1977 that they were deemed worthy of immortalising on stage and screen. More recently, journalists have had to work a little less hard to capture their interviewees’ guilt – Vicky Pryce confessed directly to Isobel Oakeshott, without the cover of a Presidential pardon.
This week, it is the turn of acclaimed violinist Nigel Kennedy, making shameless boasts to the Guardian’s most-skilled interviewer, Decca Aitkenhead. Kennedy claims that at the last general election, when his wife was away, he arranged for a friend to vote for Labour’s Glenda Jackson with his wife’s voting card. Jackson won re-election in Hampstead & Kilburn by a mere 42 votes, the narrowest victory on the British mainland.
If Kennedy did as he claims, then both he and his friend would have committed the offence of Personation, contrary to section 60 of the Representation of the People Act 1983 (“the RPA”). There have only been a handful of reported cases of conviction under this section, but in R v Phillips (Catherine Kay) (1984) 6 Cr App R (S) 293, the Court of Appeal held that ordinarily a person of good character (with no previous convictions) should expect at least 2 months imprisonment for personation at a Parliamentary election.
Dr Matthew Offord, Conservative MP for Hendon, has now joined the Tory candidate defeated by Jackson – Chris Philp – in complaining to the police. The Speaker, Jon Bercow, has also indicated that it is a matter for the police, in which Ms Jackson has concurred.
Unlike most of Europe and North America, in England & Wales crimes do not usually expire – thus the prosecution of Stuart Hall for sexual assaults committed as long ago as the 1960s. However, electoral offences are rare in English criminal law in being subject to limitation periods. Section 176 of the RPA is clear that a prosecution for an offence under the Act must be brought within 12 months of the offence being committed. That period can be extended to 24 months if an application is made to the court within the first year. If nothing is done for more than 12 months, no prosecution can be brought.
This seems startling, but Parliament has decided that the public interest in finality to election disputes justifies strict time limits for impugning the results. The courts have questioned the balance, but upheld the strictness of the limitation: Absalom v Gillett  1 WLR 128. Phyllis Bowman, the SPUC activist who breached section 75 RPA spending limits and later won her case in the European Court of Human Rights, had one such prosecution against her thrown out by the English court because it had been brought out of time.
This statute of limitations also prevents other charges being brought against Kennedy. For instance, Conspiracy contrary to section 1 of the Criminal Justice Act 1977 might be thought to apply where there was agreement to commit an underlying offence such as Personation. But section 4(4) then applies the limitation period of the underlying offence – 12 months again.
Is there perhaps a Common Law offence? Although personation of a juror still exists at common law (see R v Wakefield  1 KB 216, and section 18 of the Juries Act 1974), it seems to rest on the fact that a juror must swear an oath. On the basis of the law at this time, it appears that there is no longer a common law offence of personation of another voter at a Parliamentary election. Personation at an election was grouped into corrupt practices under the umbrella of bribery at an election, which were probably abolished by section 17(1) of the Bribery Act 2010 (see Corruption & Misuse of Public Office (§§2-108; 2-114; 4-06; 4-195), the commencement of which did not take place until 1 July 2011. In any event, personation was codified as a statutory offence as early as the 18th century, and I can find no record of it ever being tried as a common law offence. Furthermore, the courts declined to inquire into Parliamentary elections until statute in 1868 so allowed - only the High Court of Parliament could consider such offences (see R v Pitt & Mead (1762) 1 Blackstone W 380, and Morgan v Simpson  QB 151, 162). It seems inconceivable that a common law offence of personation in relation to a Parliamentary election could now be prosecuted in the criminal courts.
I’m sure the police will look into the matter with their usual diligence, but in this case they are almost certainly wasting their time. After the Four Seasons have passed, Nigel Kennedy’s fiddle has likely expired and can no longer be prosecuted.
Send me your thoughts - I’m @Greg_Callus on Twitter.
UPDATE: 6 September 2013, 11:01
In response to a question by election law guru Mark Pack asking whether other common law fraud charges could be brought, I’ve reviewed the case law. I can only find three cases where common law conspiracy to defraud was charged in electoral offences (R v Khan (Jamshed)  EWCA Crim 2240; R v Khan (Raja Mohammed)  EWCA Crim 2483; R v Hussain (Mohammed)  EWCA Crim 1866), all of which were large scale postal vote frauds. Since the Fraud Act 2006, the Attorney General has directed that the common law offence should be avoided by the CPS unless (s)he (or the DPP) signs off on it. I’d be a little surprised, even unnerved, if it was used to flagrantly circumvent a clear statute of limitations applied by Parliament, even if the English courts had purview to consider a case of a Parliamentary electoral fraud at common law.
The Leveson Inquiry was set up to look at the culture, practices, and ethics of the Press. One of the more controversial provisions of the proposed Royal Charter is that it may extend to online-only operations. Proponents have been keen to stress that ‘small blogs’ will be excluded, and so the Department of Culture, Media and Sport (“DCMS”) held three consultation meetings with bloggers to define who should fall in-scope.
DCMS was incredibly coy when asked who had been invited to this consultation, and so a number of us (independently) filed FOI requests with the DCMS. Mine asked for:
“(a) a list of people and/or organisations who were invited to attend the meeting on 10 April 2013 at DCMS about defining blogs for the purposes of press reform
(b) a list of people and/or organisations who attended the meeting on 10 April 2013 at DCMS about defining blogs for the purposes of press reform
(c) any information held as to how the list of invitees at (a) was assembled, and who contributed to formulating the list of invitees.”
After a couple of statutory extensions of time, to allow for a public interest test to be conducted, DCMS sent me this on Friday:
Group 1: 10-11.15, Wednesday 10th April
Sunny Hundal, Liberal Conspiracy
Mark Furguson, Labour List
Robert Sharp, English Pen
Jim Killock, Open Rights Group
Group 2: 13.00-14.15, Wednesday 10th April
Ian Dunt, Politics.co.uk
Stephen Tall, Lib Dem Voice
Rowan Davies, Mumsnet
Martin Coachman, Trip Advisor
Laurence Durnan, Political Scrapbook
Simon Perry, On the Wight (teleconference)
Group 3: 10.00-11.15, Thursday 11th April
Carl Gardner, Head of Legal blog
Deborah Grayson, Media Reform Coalition
Nick Pickles, Big Brother Watch
Tim Faircliff, Association of Online Publishers
William Perrin, Talk about local
The DCMS response also indicated they had not yet made a decision as to whether or not they could answer (c) - that is, who assisted in the list being drawn up.
This was the only list sent, so I presume it is the list of both invitees and attendees (i.e. 100% attendance). That doesn’t entirely square with Guido Fawkes apparently being told his invitation got lost in the metaphorical post.
My general impression of the list is that it’s a slightly strange mix - there are some excellent people on it, and others I’m afraid I’ve never heard of. The one thing that does stand out is that there is a strong skew to the political blogs of the Left. Based on public profiles (or knowing their work), I’d probably think of 13 of the 17 as being on the Left, and only Nick Pickles (Director of Big Brother Watch) as being of the Right.
Anyway - this was the group invited. I don’t see why DCMS were so cagey about releasing the list immediately. Maybe we’ll get the answer when they conduct the public interest test on part (c)…
UPDATE: Another obvious skew is that there are 15 men and only 2 women on the list.
Post-Leveson Regulation: a bad debate
It didn’t need Leveson LJ to actually publish his report before the battle lines had been drawn and sides had been taken. I don’t think I’m disparaging anyone in particular when I say the recent debate over regulation of the press has been as tedious as it has been unedifying.
You don’t need to be an expert on the philosophy of Alasdair MacIntyre to recognise that when a debate is so shrill and intransigent, that the problem might not be the incompatibility of the solutions proposed, but an incommensurability of premises. So it is with abortion, or Israel/Palestine, or the Iraq War: it’s not just that the different sides want different outcomes, they start with different premises and different definition of terms.
I may not have any better answer, but I hope that beyond chucking in my tuppence’worth,this article can suggest how to tidy up the terms we’re all using when we argue about what should happen next and why.
There are different types of Regulator (by which I mean a body whose job it is to regulate things and make decisions as to whether rules have been broken).
One particular type of Regulator regulates generally UNRESTRICTED ACTIVITIES that are/can be undertaken by ANYONE (competent adults, at least). Walking around in public, buying things, leasing property, singing songs and so on. All of these can be done by the public at large, and the way in which they do them is governed by Civil and Criminal Law (such as trespass, nuisance, public order offences, Sale of Goods Act and so on). Thus the Courts (civil and criminal) are the main Regulators of Unrestricted activities
At the other end of the spectrum, there are Regulators of RESTRICTED ACTIVITES which can only be undertaken by LICENSED PERSONS. The Bar Standards Board or the General Medical Council regulate restricted activities (practicing law and medicine) which can only be done by qualified people with an extant licence (Barristers and Doctors). The same is true for Bankers and Teachers and Plumbers and Solicitors and Accountants and so on
The majority of Regulators (excluding the Courts) are the latter type - Bar Council, Law Society, General Medical Council etc. They don’t really regulate an activity at all - they regulate a defined group of people who are the only ones allowed to do an activity. If there is a breach of their rules, they can stop that person from doing that activity. This type of Regulator needs to be able to (1) prevent people from doing the activity (backed up by law) and (2) determine who is subject to its jurisdiction and who isn’t (by a system of licensing)
This isn’t a strict binary separation though. Some Regulators only regulate a limited number of persons based on activities that are de jure unrestricted, but de facto restricted. The BBFC classifies movies - the making of movies is a de jure unrestricted activity (you don’t need to be a licensed film director to do it) but it is de facto restricted because only a very small number of people have the resources to do that activity and therefore be regulated. The de facto restriction might not be much of a restriction - most people could afford to place an advertisement in a newspaper, and so could be under the (not very powerful) remit of the Advertising Standards Agency.
So what type of activity is journalism?
It’s become a truism to say that journalism is an unrestricted activity - that everyone can (and maybe should) do journalism via Facebook or Tumblr or Twitter. Certainly, since the internet came along, it is harder than ever to maintain the fiction that journalism is a profession like medicine, law or teaching - that’s not to deride the brilliantly talented people who do great journalism, but the hallmarks of a profession - formalised mandatory training and ethics codes, a licensing regime, the possibility of being struck off - were never really in place. Journalism has not been a de jure restricted activity for centuries - but it was de facto restricted because to reach 100,000 readers you needed your own Fortress Wapping and a major distribution chain. It made sense to have the PCC, like the film industry has the BBFC, because the de facto restriction limited the class of people regulated to a manageable and discrete number.
But it’s also facile to say that ‘journalism’ is something that everyone does, because it relies on a fuzziness of what the term ‘journalism’ means.
If we were talking about the oil or mining industries, we’d talk about three major phases of activity for our product: Upstream (drilling, mining, pumping etc), Processing (refining, cracking, purefying, blending etc), and Downstream (distribution to customers/consumers, marketing etc).
The same three phases exist in journalism, but they need different terms.
- REPORTING (any capture of information, tips, sources, intercepts, etc etc)
- PRODUCING (the ‘creative’ act of journalism, be it writing, filming, editing, recording turning the information gathered in the reporting into a product)
- PUBLISHING (any dissemination of that creative product which has been produced).
Modern journalism almost always involves the latter two stages. Writing a blog, recording a podcast, editing video are all unrestricted acts of journalism. Publishing (on a website, on leaflets, uploading video to YouTube, or tweeting) is sometimes a part of journalism (all journalists publish their content) and it is often done as a non-journalistic act. But when Production/Publishing is done, it is an unrestricted activity. Anyone (more or less) can Produce and Publish.
Because Producing and Publishing are unrestricted activities, they are covered by the Civil and Criminal Law (defamation, harassment, malicious communications etc). Everyone can do them, and the proper forum for regulating something everyone can do is the Courts applying the general law. Unrestricted activities do not need a regulator - which is why the ASA is something of a duck-billed platyus of a quango: a regulator of unrestricted activities that has little or no power to impose anything on the people it purports to regulate.
There is a Defamation Bill in the pipeline, and new CPS guidance on its way as to prosecuting crimes committed on social media, and other such activity. I am satisfied that, although I don’t necessary like much of the media law we have, that the general law (civil and criminal) is the right tool to regulate unrestricted activities that can be done by anyone.
Making an unrestricted activity (like Producing or Publishing) a restricted activity would be a highly authoritarian step, and I do not think it could be compatible with Article 10. Freedom of thought and expression, within the confines of the criminal and civil law, must not be subject to the interference or approval of any state body other than the Courts.
WHY REPORTING IS DIFFERENT
But you’ll notice I’ve not talked yet about Reporting. What is interesting is that, even within major news organisations let alone in the world of blogs/Twitter, very little journalism (by volume or readership) involves much formal Reporting. The overwhelming of everything that is Produced and Published does not rest on original Reporting - think of all the Opinion pages, blogs, tweets, comments on websites. Some of these may (though sadly rarely in many cases) involve some background research, but other (more formal) types of Reporting (such as interviewing sources, receiving leaked documents, discovering new facts, going little-known places) are not present in the vast majority of pieces of Produced and Published expression. Even newspapers rely more than ever on the newswires, press releases, rival publications for things like film reviews, restaurant reviews, press conferences, financial news: so even where there is Reporting going on (ie the receipt and capture of information), it is non-contentious. The subject is a willing (sometimes too willing) actor in the reporting process.
This is significant. In spite of attempts to raise the role of Page 3 in perpetuating the patriarchy, or the expressions of distaste for the Charlotte Church virginity countdown clock, we did not have the Leveson Inquiry because of what was ever Produced or Published. No-one was surprised to be reminded of the less-savoury stories and editorial decisions made by the British press in the last ten years. But that was not the reason for the Inquiry. However grubby we may find Page 3 or stories about a marriage falling apart, very few people would support a Regulator to prevent the Production or Publishing of those stories.
David Cameron wasn’t spurred to instigate the Leveson Inquiry because of failings in Producing and Publishing. The catalyst for this review was to look at gross and egregious breaches of the civil and criminal law by journalists in the act of Reporting. Hacking phones, sending in blaggers and bin-rummagers, pinging phones to get celebs’ locations, getting copies of utility bills and credit card statements and medical records. None of these activities was to do with the Production process nor with Publishing. All of these activities, some of them crimes, were in the phase concerned with the capture of information. They were Reporting misdemeanors.
So if Producing and Publishing are Unrestricted Activities, and should remain subject only to the civil and criminal law, how about Reporting? Clearly, to excessively restrict reporting would do significant harm as a matter of public policy (no whistleblowers, no leaks, no protection from corruption). But Reporting is already a de facto restricted process. The internet might have removed the de facto restrictions on Producing and Publishing, but it has had lesser effect in reducing the time and cost barriers to entry in reporting. Research using the internet makes it possible for all to do some research, but proper Reporting is resource-intensive. It takes time and money to do it well.
If Reporting is already de facto restricted, would it do untold harm to reflect that de facto restriction in de jure regulation? I’d argue probably not. That’s not to say there should be Licensed Reporters (heaven forbid) but it is to say that the activity of Reporting (unlike Producing and Publishing) requires both (1) a technical capability to do it well enough for it to be socially useful, and (2) observance of a certain moral code in the process of doing it. Only where both are in place should any provileged position in law be acknowledged. Reporting that includes these elements is of massive social benefit. Without either of them, it is a terrifying power held by some over others.
Is Reporting effectively regulated already? I’d argue it probably is on paper. The Data Protection Act, the Freedom of Information Act, the Regulation of Investigatory Powers Act, and the Computer Misuse Act all regulate Reporting, and provide both civil and criminal penalties for their breach. However, they were ineffectively deployed to prevent some of the most egregious misfeasance that was uncovered in the run-up to Leveson. So what is the answer.
Most people recognise that there should be a forum to arbitrate misdeeds associated with Producing and Publishing (libel, contempt of court, unlawful menaces) and with Reporting (data/privacy breaches, hacking, harassment). It should be low cost, largely funded out of the proceeds generated by these activities. However, how to solve the infamous ‘participation problem’?
I don’t think there should be a Regulator. I don’t see how even a reconvened Press Complaints Commission with a whip-taking politician at its helm is compatible with the independence required to arbitrate these claims. Given that the misdemeanors in Producing and Publishing are against the general law, they should be dealt with (albeit more quickly and at a lower cost) by some form of court - a Media Arbitral Tribunal, like the First-Tier Tribunals for Employment, Tax, Information Law, and Immigration. But for Reporting misdemeanors, such as hacking etc, are we really expecting every complainant to go to court? And if not, what incentive to Reporting entities (whether bloggers like Guido Fawkes or newspapers like the Daily Mail) have to submit to the jurisdiction of a non-court entity who passes judgment on their journalism and imposes penalties.
If you read the Data Protection Act, or the Defamation Act, or the Contempt of Court Act, you’ll frequently find formal defences based on the fact that the conduct was committed as an act of journalism. Whilst Freedom of Thought and Expression is (in most eyes, anyway) a fundamental right, the statutory journalistic defences to various crimes and tort are not fundamental rights. They are discretionary defences that must be proven on the facts - “was this conduct really related to journalism? If so, then the right to plead that defence will be given (even if it doesn’t work)”.
Perhaps the answer is to make statutory journalism defences contingent on a totality of conduct being consistent and commensurate with journalistic rigour. Part of that totality of conduct might be a preparedness to submit to the jurisdiction of a Media Arbitral Tribunal. No-one should be prevented from Producing or Publishing content because they won’t sign up to such a Tribunal, but it is perhaps less clearly unfair to insist that anyone seeking to rely on journalistic defences to DPA offences or other forms of Reporting misconduct demonstrates in return a willingness to Report responsibly.
In this sense, agreeing to belong to a low-cost Media Arbitration/Tribunal system would still be voluntary, and the carrot/stick of belonging would be the right to rely on statutory ‘journalistic’ defences. I don’t think it could be a blanket solution - independent bloggers would not want to pay into such a system given they could agree to arbitrate only if the need arose - but I think a refusal to allow a complainant the option of arbitration/tribunal could reasonably give rise to a legal presumption that statutory journalistic defences would not be available.
The second carrot/stick that could be deployed is that the Civil Procedure Rules could be amended to determine that any misdeed connected to Reporting and/or Producing and Publishing should be heard by consent of the parties in the Media Arbitration/Tribunal. Any journalistic entity could refuse their consent, but would result in the refusing party paying both parties’ costs irrespective of verdict in court. If both parties refused, then the presumption would be that both sides bear either their own or each other’s costs. This would incentivise both claimants and defendants to use quicker and cheaper arbitration/tribunal arrangements, rather than the courts.
GENERAL LAW, OR ADDITIONAL PROFESSIONAL STANDARDS?
And should the Media Arbitration/Tribunal just enforce the general criminal and civil law, or should there be additional standards to which journalistic outlets should have to subscribe. I’m open-minded on this. The PCC had various elements of its code based on accuracy, and ethics. I’m not convinced that these should be mandatory for all who would use the Tribunal, but it might be that voluntary submission to such a code would provide for more favourable judgments on costs.
I’m genuinely open-minded on the composition of the Media Arbitration/Tribunal. I think it should be judicial, in the same way that Tax and Immigration are judicial, but that would still keep it independent of the Executive and Legislature who are elected and therefore fear the press. Use of the Arbitration/Tribunal would be voluntary, but the costs implications of refusing to do so (and the presumption against being able to rely on statutory defences) would be a strong incentive for the few institutions that do significant volumes of reporting.
What would be the involvement of government? If a Tribunal, like Tax or Immigration, then the Court would be created by statute and staffed judicially. But it would only be adjudicating the general law (defamation, contempt, breach of confidence) as the Courts do at the moment, just more cheaply. To bring a general complaint against a newspaper would be much easier than independent causes of action sent to the Information Commissioner (for DPA offences), defamation in the Queen’s Bench Division, breach of confidence in the Chancery Division, an injunction from the Family Division, and a criminal complaint about harrassment. Alternatively, it could be an entirely private body - a real Arbitration - where membership was purely contractual and with no involvement of government. I think what critics of a Press Regulator are right to be fearful of is a Regulator which belongs (or quasi-belongs) to the Executive Branch (like OfCom), but I cannot see how a consensual Arbitration or judicial Tribunal would be as problematic.
It seems from Leveson that it is too difficult and too expensive for most complainants about the media to get remedies afforded by the civil and criminal law, even though those laws are (on balance) probably adequate on paper. Most of the serious breaches were in the Reporting phase, rather than the Producing and Publishing phase. Whilst I think that making Producing and Publishing in any way restricted activities (subject to mandatory regulation) would be a breach of Article 10, I do not think that Reporting is as obviously protected. Consistency with Article 8 demands that there are restriction on Reporting, such as DPA offences, and the good public policy reasons for allowing statutory journalistic defences could easily be made in some way contingent on good journalistic conduct as evidenced by a willingness to participate in a Media Arbitration/Tribunal.
Any Tribunal should, however, be a judicial tribunal and/or a private contractual standing Arbitration, rather than a Regulator belonging to the Executive Branch. The benefits of submitting to that body (on a voluntary basis) rather than forcing all complainants into the courts would sound in costs (as determined by a Practice Direction from the Lord Chief Justice). Preparedness to sign up to additional ethics standards (accuracy etc) would have further cost benefits within the Tribunal.
We can’t keep having a debate where Reporting/Production/Publishing are all rolled into ‘Journalism’, and we can’t have a debate where we don’t distinguish between ‘journalism’ (as a hitherto de facto restricted activity, now unrestricted) and ‘the press’ (a once-definable group of people, suggestive of a de facto or de jure restricted activity). We have to be able to distinguish between arbitrations (private), tribunals (judicial), and other regulators (mostly belonging to the executive). It is important to understand what “the Freedom of Thought and Expression” intrinsically covers (the unrestricted activities of Production and Publishing, rather than de facto restricted activity of Reporting), and why unrestricted activities (Production/Publishing) should only be subject to the general law, whereas they *may* be a case for additional regulating of restricted activities (Reporting) beyond the general law (no paparazzi photos of children, for example).
If we’re not prepared to recognise these distinctions, and insist on repeating our well-rehearsed ‘State Censorship vs Unregulated Corporate Media’ arguments, this post-Leveson debate isn’t even worth attempting. Something has to change - we can’t sensibly suggest what that should be until we agree on the terms we’re using.
As always, other views welcome - I’m @Greg_Callus on Twitter
Jill Dando was murdered at her own doorstep on 26 April 1999, aged 37. Her murder is, at present time, unsolved. Operation Oxborough, the Met’s investigation into her death, discovered significant evidence that her privacy had been invaded in the 5 months prior to her death. Who was responsible for that activity, and to what extent did the Met discover the customers for that information?
There is one major Met operation that I’ve not seen referenced in any of the Leveson-related coverage, a truly-massive investigation that uncovered illegal information harvesting techniques back in Spring 1999. It was the largest murder investigation the Met had ever run. The victim had been targeted by at least one information thief in the months prior to her death. The investigation was Operation Oxborough: the hunt for the killer of Jill Dando.
The Dando murder was widely reported, and conspiracy theories about it still abound - a non-negligible proportion of those who followed the case still believe she was assassinated by a professional Serbian hitman in revenge for the bombing of a TV station in Belgrade by NATO forces during the Kosovo war.
Eventually, local loner Barry George stood trial, was convicted, had his 2002 appeal dismissed, before a 2007 appeal ordered a retrial at which he was acquitted. He subsequently sued News International for libel damages, settling for a substantial-but-undisclosed amount. The murder remains unsolved to this day.
Operation Oxborough was meticulous. A single internet user had searched for Jill Dando’s postcode the previous year, viewing her Gowan Avenue address in Fuham on a map using website 192.com - he was interviewed and ruled out of inquiries. The police spoke to everyone in the UK with the surname Dando. All 486 people in her Filofax were spoken to, and 2100 suspects considered based on tip-offs.
Two witnesses (Belinda Normanton and Richard Hughes) had seen the man considered the prime suspect carrying a mobile phone as he hurried away from the scene. So Police checked 80,000 mobile phone numbers that had been used in the area at around that time, apparently with the help of GCHQ in Cheltenham.
“The killer appears to have been carrying a mobile phone, and detectives have contacted the major networks to discover if it is possible to identify the calls that were made in the crucial period between 10.30am and midday on April 26 in south-west London. Again, it could be weeks before the results are known.”
Four weeks before Barry George was arrested, Richard Stott asked in the News of the World (30 April 2000):
“POLICE hunting Jill Dando’s killer are sure he was an obsessive loner. Plausible. So why did he consistently use a mobile? That indicates an accomplice”.
It had been thought that a sweaty professional assassin had missed his rendezvous with a getaway driver (who was in a blue metallic Range Rover) and had instead fled on the Number 74 bus before boarding the London Underground at Putney Bridge station. Stott’s query responds to a shift that had occurred certainly by early 2000, when the 45-officer investigation had got nowhere in eight months. Tangents like the six-month surveillance of suspects like Steve Savva, or the investigation into ‘mercenary’ Dean Shelley, had led to naught. The theories of case changed. The police were now looking more into celebrity stalkers and sex pests.
Ultimately, in February 2000 Detective Constable Jonathan Gallagher would find a ‘dog-eared index card stored in a West London police station’ (The Times, 3 July 2001) that referenced Barry George’s previous convictions for sexual offences. The same officer had custody of the infamous coat which had a single particle of gunpowder in the pocket, which was so crucial to the second appeal.
THE INFORMATION CRIMES
But the police weren’t looking for a haphazard stalker. On 10 January 2000, Stewart Tendler wrote an article for The Times headed ‘Dando Police Focus on Phone Pest’:
"Three attempts were made by the same stalker to obtain personal information about Jill Dando, as well as possible access to her home, by trying to persuade utility companies to hand over her bills. Scotland Yard detectives working on the Dando murder case disclosed months ago that there had been approaches to electricity and telephone companies by a caller who on one occasion posed as the television presenter’s brother. Last week they confirmed that there had been a third attempt, and they believe that the three were linked.
The calls were made in the months before Dando, 37, was shot dead on the doorstep of her home in Fulham, southwest London, in April. They were made to call centres around the country; the caller who rang BT asked to take over payment of Dando’s account. The caller knew Dando’s ex-directory number. Information contained in the bills would have given that person access to details about her private life, including telephone numbers of friends and business contacts. He may also have been able to use the knowledge to gain access to Miss Dando’s home.”
This was followed up on 19 January 2000 by Ian Hepburn in The Sun:
"Detectives now suspect the mystery surfer could be linked to bizarre calls made to public utility companies from someone claiming to be Jill’s brother. They fear the killer was living in a fantasy world and imagined himself to be part of her life. The man, calling himself James, contacted electricity, gas and water suppliers in the space of 20 minutes, trying to take over payment of the star’s bills. He knew details of her bills including a 14-digit number for her electricity account. The calls last February 1 came the day after a dinner at which she announced her engagement to gynaecologist Alan Farthing."
By 20 April 2000, the Sun’s Adam Lee-Potter had the following details:
"Detective Chief Inspector Hamish Campbell, who is leading the inquiry, had called for information on loners, gun fanatics or infatuated fans. He said: "People are ringing in with that sort of information - very precise." Earlier, police revealed a bizarre phone call to a woman with the same name as Jill Dando may have been made by the TV girl’s killer.
Jill’s namesake was kept on the line for ten minutes by a “charming” man asking for intimate details about the murdered Crimewatch presenter. He rang the woman - listed in the phone book as J. Dando - five months before Jill was gunned down outside her home in Fulham, West London, in April last year.”
For the avoidance of doubt, Barry George was never described as ‘charming’. He was described by teachers as not being shy, but used conversation to tell you what he thought rather than to exchange ideas. He was diagnosed with Asperger’s shortly before his trial. He was all broadcast, no reception. He was the antithesis of a specialist blagger, or some other such talented inducer of secrets - for example, John Gunning, who worked for Steve Whittamore and was convicted in 2006 in relation to private data blagged from BT. George did not own a mobile phone.
DID THE POLICE UNCOVER NEWSPAPER TARGETING?
There was no shortage of news stories about Dando in the 5 months before her murder (November 1998), especially in the aftermath of her 1 February 1999 announcement of her engagement to Dr Farthing. In the autumn-through-year’s-end of 1998, she had been mooted as a BBC Newsreader, although BBC chiefs were split over whether or not she should be preferred to Huw Edwards. In March 1999, the tabloids ran a variety of stories about her future plans, including that she would be hosting the BAFTA awards, singing Madonna in Celebrity Stars in Their Eyes, and quitting the Holiday programme.
In light of what we now know from the Leveson Inquiry, those phone calls of blaggers and hackers (the day after a major celebrity announcement) sound far more like the daily work of tabloid journalists and private investigators than the actions of an obsessed weirdo with an atypical sensitivity to the news cycle.
It is, I would submit, simply inconceivable that Operation Oxborough did not look into this pattern of interest into Dando’s life. It is inconceivable that the Met’s biggest ever murder investigation, initially thinking it was investigating a professional hit-job, did not look into this sort of intelligence gathering on a high-profile target. I struggle to believe that they did not trace the identity of those who had commissioned the blagging.
Unlike the Dowler investigation, given that media types were at the top of the list of people with personal and professional jealousies of the victim, it seems unlikely that a murder investigation would have taken at face value claims that this was just being done for scoops. Finding a media colleague with that degree of interest in her life would have heightened, not dampened, suspicions.
At very least, information crimes (which I strongly suspect were sponsored by newspapers) seriously impeded and misled investigators. It muddied the waters of the investigation so that it took almost 10 months to focus on Barry George as a prime suspect, and yet the Operations that followed pointedly avoided prosecuting journalists who had commissioned the blagging.
Graeme McLagan (author of “Bent Cops”) wrote in the Guardian (21 Sept 2002) that:
"Documents from Operation N________ reveal that senior officers were keen to bring charges against reporters if any evidence was found that they had committed crimes. However, no such evidence surfaced of criminal offences by any of the reporters or that they knew the origin of the material."
Operation N_______ ran from May-September 1999, concurrently with the Met’s Operation Barbatus (1999-2004) which led to 27 arrests and 15+ convictions, including those of ex-cops Jeremy Young and Scott Gelsthorpe who ran Active Investigations Services (AIS). However, Operation Barbatus was catching information-trading and police corruption on behalf of predominantly non-media clients.
In 2003, Operations Operations Glade (the Met) and Motorman (the Information Commissioner’s Office) in 2003, which found widespread hacking. It was these operations that uncovered the detailed documented invoices of Steve Whittamore submitted to various newspapers. Those books are still not all in the public domain. However, there was never the means to show that journalists had known about the illegal methods used by Whittamore, according to evidence of DCI Gilmour to the Leveson Inquiry.
Outside of the Met, in March 2002, Surrey Police were engaged on Operation Ruby - the investigation into the disappearance of Milly Dowler. Operation Ruby was run by Commander Craig Denholm, now Deputy Chief Constable of that force. On 28 June 2012, it was reported in the Guardian that the Independent Police Complaints Commission (IPCC) is now investigating whether or not he failed to act when when he discovered that the News of the World had hacked Milly Dowler’s voicemails. According to Assistant Chief Constable Jerry Kirkby, who gave evidence to the Leveson Inquiry, this follows an internal investigation (Operation Baronet) which found that at least one of Denholm’s meetings with journalists where hacking was raised had been minuted.
YATES OF THE YARD
Denholm had previously worked at the Metropolitan Police, Hampshire Constabulary and the National Criminal Intelligence Service (NCIS). His move back to Surrey in 2009 was from a position working under John Yates, as a Commander in Counter-Terrorism Command. That move preceded by a mere month Yates’ 2009 decision not to look into phonehacking. This has raised more than a few eyebrows.
John Yates had been asked to look at whether there was a wider, more endemic problem with newspapers hacking into people’s private lives. He decided there was insufficient evidence of that. Yates has since admitted his decision not to investigate the broader claims of hacking was a ‘pretty crap one’, saying:
“In fairness in 2005/2006 and even in 2009 did we think hacking was standard practice? I don’t think anybody knew. Now it’s different. There were levels of assurances [that it was restricted to one ‘rogue reporter’] from the News of the World, who were not the most cooperative. News International cooperated just enough. They were pretty clever about that. They were just taking it to the limit.” (emphasis added)
It is possible that the 2005/06 Goodman investigation didn’t immediately suggest more perpetrators. It is possible that operations into corrupt police officers were not common knowledge at Scotland Yard. It is possible that Glade/Motorman were fairly specialist areas of criminality limited to specific investigators, not known to all and sundry. So should perhaps John Yates be forgiven for not knowing what the newspapers could do?
In 1999, John Yates moved to a new job as Staff Officer for Sir Paul Condon, the Commissioner of the Metropolitan Police. I imagine the murder of the presenter of Crimewatch would have received no small share of the attention of the Commissioner’s office. Then in 2000, Yates was assigned to head up the Special Inquiry Squad, or ‘Celebrity Squad’ as it was better known - he dealt with the perjury case against Lord Archer, and the rape allegations against John Leslie. Again, it seems inconceivable that he would have remained unfamiliar with Operation Oxborough.
But what is most startling is that on 4 August 2008, 3 days after Barry George’s acquittal at retrial, John Yates was appointed (with two others) to review all of the evidence in the Jill Dando case and decide next steps. Less than a year later - 9 July 2009 - he announced his decision that there would be no further investigation into phone hacking.
Jill Dando was targeted by the tabloids before her death in 1999. Members of the Royal Family had been targeted in 2005. And yet when Yates was asked to review the Dando files in 2008, he didn’t recognise the behaviours of professional blaggers? When he was asked to make a decision about phone hacking in 2009, he didn’t think there was cause to think this extended beyond the Mulcaire & Goodman?
John Yates might never have been privy to Operations N______ and Barbatus, might have overlooked specialist information crimes Operations Glade and Motorman, and might have believed the NotW about the limited scope of Goodman/Mulcaire. What I really struggle to believe is that having been in charge of an evidence review of the highest-profile unsolved murder in the Met, he did not remember the clear evidence that Jill Dando had been a target and wonder about the scope of the problem accordingly. And in light of that, his perverse decision of July 2009 makes even less sense.
Jill Dando’s murder is still unsolved. It seems highly likely that she was targetted by newspapers before her death. The Met either failed to uncover this, or did not act to stop it happening to others. Whilst the investigations into police corruption that followed are to be welcomed, when Surrey police are facing an IPCC investigation for failing to act on phone hacking in 2002, it seems reasonable to ask what the Metropolitan Police Service knew, and when.
Thoughts welcome - I’m @Greg_Callus on Twitter.
(What follows is just a bit of fun. Fun that might turn serious in 3 weeks’ time. This is a pre-emptive “I told you so” if it happens, and a mere frolick of the mind if it doesn’t.)
Cards on the table - I have a particular fascination with the XIIth Amendment of the US Constitution. It is, along with the First and Sixth, my favourite amendment, and lodestar for psephological geeks everywhere. In the event of no candidate getting an overall majority in the Electoral College, it provides for the election of the President by the House of Representatives and of the Vice-President by the Senate. Years ago I did a lot of work on it, looking at its history, the circumstances of its use. History is fun.
Nowadays, unless a Ross-Perot-style billionaire manages to build popular support into winning whole states, the circumstance of ‘no candidate winning a majority in the Electoral College’ effectively means an Electoral College Tie of exactly 269 Electoral College Votes (ECVs) going to both the Democratic and the Republican candidates.
Back in 2008 or so, I tried to chart the probabilities of this on the old Electoral College numbers (before the last re-apportionment), starting with the actual number of combinations of votes.
There are 50 states, plus DC, plus 3 additional combinations due to ‘loose’ votes in ME and NE, giving 54 binary variables. Maine and Nebraska allocate an ECV to the winner of each district, then 2 to the state-wide winner. Therefore the only possible combinations in ME are a 4-0 or 3-1 split as no-one could win two districts but not the state-wide vote. In NE, the possibilities are the usual 5-0, 4-1 split (as happened for the first time in 2008) or a 3-2 split (where the winner of 2 congressional districts lost the third so heavily as to cede the state-wide vote). We can account for these possibilities in calculating total combinations by considering the additional 3 (split-vote) possibilities as ‘states’ in their own right.
If each of the 54, independently, votes either Republican or Democrat, there are 18,014,398,509,482,000 (or “just over 18 quadrillion”) combinations possible.
Determining how many of these lead to an electoral college tie is not a simple problem. Each of those 54 elements have different (but mostly non-unique) weightings, so seeing how many combinations equal 269 is tricky. You may remember it from school as being a "knapsack problem" or a "subset sum problem" which is (for maths geeks) NP-complete. You cannot easy work out NP-complete problems that easily, unless you are a near-professional mathematician. You need to approximate using heuristic pseudo-polynomial time or something. This is the sort of thing that I’d suggest you need a PhD in order to understand the Wikipedia article. I don’t.
I wanted to test a theory: whether, when the US census produced more states with even-numbered Congressional delegations, this increased or decreased the likelihood of an Electoral College Tie (ease of tessellation etc). I therefore needed to know the proportion of the 18 quadrillion combinations that resulted in a tie for each election. Lacking the algebra skills needed, I decided to build a database of states with their corresponding ECV at each Presidential Election, and “hand-crank” the result by writing a SQL query that would generate each of the 18 quadrillion combinations on the basis of each election (since DC and HI were added to the mix in the 1960s).
I built the database, I wrote and tested the query successfully, but trying to generate answers of that size melted my computer. This was, remember, many years ago. It was only a little side-hobby to amuse me, and so I forgot all about it. Until now.
I figured it’s somewhat easier to hand-crank the result if we limit ourselves to just one Electoral College (let’s say 2012) and to restrict the exercise to the states that are not strongly leaning one way or the other a mere fortnight before election day.
Nate Silver, electoral-math guru supremo at the New York Times, currently has the state of the Obama-Romney race in terms of the Electoral College as follows:
Firm Obama: 185 EC votes (HI, CA, OR, WA, IL, NY, NJ, MD, DE, DC, VT, MA, CT, RI, ME)
Leans Obama: 52 EC votes (ME 2nd district, PA, MI, MN, NM)
Toss-up: 95 EC votes (NH, OH, VA, FL, WI, IA, CO, NV)
Leans Romney: 38 EC votes (NE 2nd district, AZ, IN, NC)
Firm Romney: 168 EC votes (AK, ID, MT, WY, ND, SD, UT, NE, MO, KS, TX, OK, LA, AR, MS, TN, GA, SC, WV)
So with only the Firm states for both candidates, the state of the race looks like THIS
Maine’s 4 EC votes have never split. Five-term Congressman Mike Michaud (Democrat) is looking at a pretty clear win in the ME 2nd district, and I don’t think Romney stands much of a chance here.
I actually called Nebraska’s first ever split-electoral college vote in 2008, hanging out with PoliticalBetting.com’s finest at an all-night bookmakers (see my Josh-Lyman-style whiteboard in the photo above). To this day, I have a special affection for the quirky denizens of Lincoln, NE. This time though, Congressman Lee Terry is again looking at clear re-election, and I don’t think the 1.22% margin Obama held over McCain in this district will be repeated four years into his presidency in current economic climate.
For this reason, to reduce complexity massively, I’m calling ME 2nd for Obama and NE 2nd for Romney this time around.
This leaves us with Obama on 186 EC votes, and Romney on 169 ECV, with 15 swingable states (#ECV) left to contest. They are
AZ (11), CO (9), FL (29), IA (6), IN (11), MI (16), MN (10), NC (15), NH (4) , NM (5), NV (6), OH (18), PA (20), VA (13), WI (10) = TOTAL (183)
(a) How many combinations of these swing-states exist (imagining all vote independently of each other)?
We can, for ease, rephrase (b) as either:
There are exactly 32,768 combinations of these 15 states. I’m going to work out how many of those 32,768 combinations net to Mitt Romney winning 100 ECV.
I’ve re-created a SQL database to generate the Powerset of all combinations. Exporting it into Excel, and summing the ECVs for each combination, I calculate that there are a mere 445 combinations of those 15 Swing States that result in 100 ECVs to add to Romney’s pile thus producing an Electoral College Tie (just under 1.36%).
Of the 445, there are 15 outcomes where the GOP wins 6/15 swing states, 114 outcomes where the GOP wins 7/15 swing states, 177 where the GOP wins 8/15, 117 where the GOP wins 9/15, 25 where the GOP wins 10/15 swing states, and only 1 tie (Obama wins MI/FL/OH/PA but loses all the rest) where the GOP wins 11 states. If the GOP wins 12/15 or more (or 5/15 or fewer), there cannot be an Electoral College Tie.
If you add back one of the loose ECVs (either ME 2nd district or NE 2nd district, each worth 1 ECV), then there are 16 swing ‘states’ which produces a total 65,536 combinations. Of those, 871 combinations result in Romney winning a total of 101 ECVs (one more, because we’ve moved a safe ECV out of his column into the swing column). This is approximately 1.33% of total combinations.
You could of course follow Nate Silver strictly, and include both 2nd Districts of ME and NE, but that generates 131,072 combinations and crashes my computer, even in 2012.
Of course 1.33-1.36% of possible combinations isn’t a probability, because states do not vote independently of each other. It is not equally likely that Obama and Romney will win (say) North Carolina, nor is it just as likely that a candidate will win both New Mexico and Colorado as might win both Florida and Wisconsin. The probability might in fact be higher than 1.36% but I suspect it is probably a little lower.
That said, I’d consider odds of anything around 100/1 to be fairly good value.
So what happens if there is a Tie in the Electoral College?
Firstly, there is the risk of a Faithless Elector. Every single one of the 538 electors chosen has the power to anoint the President, if all the others vote as they should. There does not appear to be any legal bar on them voting for whomsoever they like, irrespective of the votes of the State that sent them. This political scandal - a tied Electoral College not following their State’s decision and not deferring to Congress - would likely spell the end of the Electoral College fairly quickly.
Let’s assume that all electors followed the wishes of the voters in their states, and that when the outgoing Vice President came to open the ballots on the Senate floor for ratification, that it was a pure 269-269 tie still.
Second thing that happens, the new Senate would quickly vote for a new Vice President from between Joe Biden and Paul Ryan. This is a toss-up, as control of the new Senate could go either way on current polling. Two-thirds of Senators are required for quorum, but a bare majority would be enough to choose the VP.
Thirdly, the new House then has to choose the new President. Why do I assume this would come after the previous vote? Because the House has a much more complex procedure for voting for President - it doesn’t (for once) vote as 435 individual Congressmen on this vote. They vote by state delegation. There must again be a quorum of 2/3 of states voting, and a bare majority of states will win the vote.
So in the case of, say, New York casting its vote, they currently have 29 Congressmen, of whom 21 are Democrats and 8 are Republicans. New York would therefore (probably) cast a single vote for Barack Obama as President. That’s easy. But some delegations are much more evenly-balanced. Therefore the voting, horse-trading, and tantrum-throwing of all those Congressmen within 50 independent state delegations will take time before the House even begins to vote.
In the current House, Democrats have a majority in 15 state delegations, the Republicans in 32 complete delegations (plus a majority in the incomplete Kentucky delegation of 3 Republicans, 2 Democrats and a vacant seat). There are two tied delegations at the moment - Minnesota has 8 Congressmen, half Republican and half Democrat. New Jersey has the parties tied 6 apiece, with an extra vacancy. Tied delegations probably abstain in a XIIth Amendment vote.
Of the 15 delegations where the Democrats lead, they lead by 1 vote in 6 delegations and by more than 2 votes in only 5 delegations. The Republicans lead 10 of their delegations by a single vote and another 6 delegations by 2 votes. Given that they are expected to keep-but-shrink their overall majority in the House, that could see them easily lose overall control of the majority of House state delegations even if they kept their majority of voting members.
One interesting note - DC only has 3 votes in the Electoral College thanks to the XXIIIrd Amendment, which allowed DCers to vote for the first time for Lyndon B Johnson in 1964. But DC has no Congressional Delegation, as it isn’t a State. It is not clear whether or not it would get to vote in either the House or Senate in the event of a XIIth Amendment situation. However, I have discovered this snippet:
With the ratification, District citizens were granted a limited right to vote for president – the first time they could vote in nearly a century. In the event that no candidate for President has a majority or there is a tie vote, the Twelfth Amendment provides that the House shall choose the President. Because D.C. does not have voting members in Congress, D.C. would not be included in that decision. Samuel H. Still, Legislative Attorney of the Legislative Reference Service of The Library of Congress wrote an opinion to the House Committee on the Judiciary on June 14, 1960 saying that because of the language “they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State” D.C. would be able “to participate in this choice should the District at some further date be granted Representation in the House.”
There is no particular reason whatsoever that the House and Senate would feel compelled vote for candidates of the same party. I suspect that Joe Biden has enough Republican friends in the US Senate of which he has been a member since ancient times that he would be chosen ahead of Paul Ryan barring a Republican landslide. I think the Republicans will comfortably keep the House, and would probably choose Mitt Romney, assuming Congressmen voted with their party rather than their state (which only happens to hold their district).
In the relatively unlikely scenario of an Electoral College Tie, barring a Faithless Elector, I think the most likely outcome would be President Mitt Romney and Vice-President Biden. The kicker is that, failing agreement in the House (the horse-trading would be intense, and I can imagine many Representatives wanting to abstain to stymy a vote that wouldn’t go their way) it is far from unthinkable that the House would gridlock, causing VP Biden or Ryan to be sworn in as President.
Finally, it’s worth election geeks having a full read of Jones v Bush 122 F.Supp.2d 713 (2000), the lawsuit that in 2000 sought to challenge the election on the grounds that Dick Cheney was really a resident of Texas (rather than Wyoming, where he’d re-registered in the state for which he’d once been a Congressman shortly before polling day). If this had been the case, then the Electoral College electors from Texas would’ve been barred from voting for both George W Bush for President *and* Dick Cheney for Vice-President, as the XIIth Amendment makes clear that an elector of a state cannot vote for a ‘favourite son’ for both offices.
Once you’ve consumed the judgment, there’s a wealth (in quality rather than quantity) of secondary literature worth your time, especially at the Volokh Conspiracy, and by Christopher Scott Maravilla in That Dog Don’t Hunt: The Twelfth Amendment After Jones v Bush 23 Pace L Rev 213 (2002).
That year, the Electoral College gap between the parties was fewer than the votes that Texas cast, and so this would’ve been determinative. Interestingly, as of election day, the Democrats held the Congressional majority of the Texas delegation in the House, so had the Electoral College Votes (“ECV”) from Texas been found void (never really likely) the Texas delegation might have been faced with an awkward State-v-Party conflict which could have determined the 2000 election. Not to put too fine a point on it, but in 2012, there is a Republican majority (11-8) in the House delegation from President Obama’s state of Illinois…
Here’s hoping that Congress isn’t forced to resolve the 2012 election in a more acrimonious a fashion than even the US Supreme Court managed in 2000…
If you’d like a copy of the databases / spreadsheets / simple SQL code I used to generate these combinations, drop me a line: I’m @Greg_Callus on Twitter.
I want to start a difficult conversation. I’m wondering if we should consider getting rid of Legal Aid for adults, and replace it with Legal Insurance.
I know this sounds incredibly right-wing (like getting rid of the NHS and replacing it with US-style medical insurance of yesteryear), but a rampant free-market insurance model that would penalise the poor, the young, the male and those from minority-ethnic backgrounds is (please believe) not what I’m suggesting. I’m suggesting a model of insurance that I hope might be better than Legal Aid.
We all know that many criminal barristers, and solicitors who largely or entirely rely on work funded by Legal Aid, are facing the abyss. Underfunding of criminal and family justice are perennial problems, given horrific new dimensions by LASPO. Some have claimed the existence, let alone the independence, of the criminal Bar is at stake, to the extent that industrial action is being mooted. As a not-entirely-unrelated issue, successive governments have considered the possibility of limiting or abolishing the right to trial by jury even before the current climate of austerity gave them new motivation.
We have a tradition of justice, both criminal and civil, of which we are rightly proud, but it is being systematically harmed by reliance on a funding model that is unimaginative at best, and destructive at worst.
I do not have either strong ideological leanings, or a fully-worked suggestion for how State funding could be reimagined, but it strikes me that the legal professions need to have a serious conversation as to whether direct State funding is the right mechanism for meeting the bulk of the costs of legal assistance for those (the majority) who cannot afford to pay privately for a lawyer. For the sake of the professions, their clients, and the efficient administration of justice, if Legal Aid is the best the we can conceive, then it should be because we have considered it to be better than all the alternatives. I’m interested in fleshing out what those alternatives might constitute.
Allow me to begin with some fairly uncontroversial premises:
1) IT’S BAD AT THE MOMENT - There is a crisis at the criminal bar, especially at the junior end, due largely to low (and/or late payment of) fees from the public purse. This is causing practitioners to leave, go bankrupt, or take on increased workloads thus devoting less time to each case. There is a similar crisis, albeit not as severe, at the family bar. Solicitors’ firms who do significant amounts of publicly-funded work are also feeling the squeeze. This state of affairs is regrettable and not conducive to the quality of legal services or the health of the legal professions.
2) IT’S JUST GOT WORSE - The government has (in LASPO) restricted Legal Aid in order to save money as a result of the austerity agenda. This will likely prove a false economy in civil matters where inexperienced litigants-in-person will slow the rate at which cases are managed through the courts.
3) IT WAS BAD IN THE GOOD TIMES AND IS UNLIKELY TO GET BETTER - The courts service and Legal Aid did not experience the same boon of increased investment enjoyed by Education and the NHS under the last Labour government. This is understandable - everyone sees the benefit of better health and education, making investment in them vote-winners, whereas spending on courts and Legal Aid sounds to voters like spending taxpayers money on keeping criminals on the streets. Few governments will ever treat Legal Aid and the courts as investment priorities in keeping with their actual importance. Most governments seeking cuts will see the Ministry of Justice as fair game.
4) EXPENSIVENESS IS A FEATURE NOT A BUG - Our common law system, with its trial by jury, is a cornerstone of British justice, but one that costs a disproportionate amount of money. Consequently, our Legal Aid bill is disproportionately high compared to other EU member states. Reduction of costs by abolishing jury trials would hopefully be too dangerous for any government to seriously consider, but even if this is borne out, it means our costs will remain high even though funding is cut - this financial pressure is likely to continue.
5) INDEPENDENCE OF THE BAR IS IMPORTANT BUT UNDER THREAT - The Bar has traditionally been an independent profession, and it considers its independence to be an important characteristic for the administration of justice. Excessive reliance on a single client, including government, is considered a danger in most businesses, even those that do not have an ideological attachment to independence.
6) LEGAL AID IS BEHAVIOURALLY-BLIND - The majority of people who contribute (through taxes) to Legal Aid will never use it. Unlike healthcare and education, which are used universally, Legal Aid is overwhelmingly used by those who are unemployed or on low-wages, and lower net contributors by way of taxation. Although means-tested, there is no ‘desert’ element for Legal Aid - it is not capped or reduced based on moral or legal culpability or past behaviour. Like the NHS, the justice system is free at the point of use, and not tethered to the rectitude or otherwise of the recipient’s behaviour.
7) WE HAVE TO HAVE SOME MODEL OF PROVIDING CRIMINAL LEGAL ASSISTANCE - Lastly, but perhaps most importantly, the UK has a duty - as a matter of domestic, European, and international law - to provide legal assistance to those who cannot afford it. Article 6(3) of the ECHR spells out this right and its limitations.
From the premises above, I would say that the non-negotiable characteristics of any acceptable replacement system are:
1) It must be universal - no-one can be without the means to pay for legal assistance
2) It must provide sufficient funding for practitioners to maintain the high standards demanded by the professional codes of conduct
3) It should be sufficient to pay for the aspects of British justice that are disproportionately expensive, but integral to liberty and justice (like jury trials)
There are other desirable, but negotiable, characteristics as well, such as:
4) It should be inoculated from the politicized budgetary decisions of Government
5) Following 4, it should preserve the independence of the Bar
6) It should not be entirely behaviourally neutral - it should act as a driver of behavioural decisions
Considering these characteristics, it strikes me, watching the victory of Obamacare in the US Supreme Court, that it is therefore worth having a conversation about the viability of a scheme of mandatory individual legal insurance for all adults as a replacement for Legal Aid.
AN OBVIOUS SUGGESTION: MILIA
I have coined MILIA to be the term for a generic “Mandatory Individual Legal Insurance for Adults” model. This can be further refined to account for policy decisions about scope of coverage, how to vary premiums, how to deal with the uninsurable etc etc, and I am there will be many ingenius alternatives from others, but this strikes me as the standard solution to counterpose to direct State funding through Legal Aid.
Criteria 2-4 above (sufficiency and independence of government) are easily satisfied by MILIA - working on the same basis as Obamacare, with strict regulation of any private insurers to ensure premiums are broadly affordable, it is unlikely that there would be insufficient money flowing into the system under MILIA. Indeed, by being freed from the strictures of Government budget-setting, it would likely see more money flowing into the legal services industry than is currently the case.
It is my contention that Criterion 5 being met is also self-evident - it is difficult to imagine a single insurer ever being so dominant as to approach the monopsony that the Legal Services Commission enjoys over some barristers’ practices. If you doubt that this monopsony is a threat to the independence of the bar, ask yourself if there would be a more practical way for a government to increase conviction rates than gutting publicly-funded defence of some of its best talents, then overworking the rest to avoid them performing at their best.
I think the interesting areas for debate about the viability of legal insurance are Criteria 1 and 6. Let’s start with the latter.
THE BEHAVIORAL NUDGE
Insurance as a behavioural nudge is an ethical question as well as one of public policy. We have to ask whether charging a variable premium on the basis of behaviour is ethically acceptable (for a particular field of insurance), as well as whether there is sufficient evidence to believe that variable premiums can - as a matter of fact - affect behaviour in a way desirable in the eyes of policy-makers.
I’m not an ideological free-marketeer. I happen to be resolutely opposed to the insurance model for healthcare - I favour a fully nationalised NHS over the Obamacare model, or even a Single Payer model of state-run insurance, because I think the “non-behavioural” aspect of healthcare is morally critical. Although lifestyle choices are a component of some health conditions, there is often only a weak correlation between an activity and disease. The overwhelming majority of smokers do not get lung cancer, and the majority of those who exceed government guidelines on alcohol consumption will never get cirrhosis of the liver. This isn’t to deny the causation - it’s to say that the impact of non-behavioural factors (genetic, external/environmental, or Fate) play a significant part that means that it would be inequitable to blame patients for their diseases by charging them more (whether at point of use or in insurance premiums) for their medical complaints they happen to develop.
I think variable-premium insurance is only ethical as a behavioural nudge when the consequences for which the insurance is taken out are strongly correlated to the behaviour that creates the risk.
Take car insurance. There is a strong causative link between unsafe driving and accidents. Having higher insurance premiums as a result of multiple claims, and offering discounts for no claims, is a behavioural nudge that encourages safer driving. It seems almost self-evident to me that if the cost of repair all car accidents was picked up by a general fund of taxpayers’ money, people would have less incentive to drive safely (thus causing a higher accident rate) but there would also be complaints that the general taxpayer was unjustly supporting the unreasonable actions of a badly-behaved minority.
Car insurance works because there is a loose desert-based link between the amount you pay and the probity of your previous behaviour, which in turn acts as a disincentive to behave badly. This is considered both just and sensible as a matter of public policy. How is this different to the suggestion of legal insurance? Or rather, concerning the rectitude of variable contribution on the basis of behaviour, do we think contributions to legal services should more closely follow driving or healthcare? I would lean towards saying that the degree of causation of harm by behaviour, and the moral culpability for higher costs, puts legal insurance ethically closer to motor insurance (which I support) than health insurance (which I don’t).
Many aspects of behaviour (for which a claim would be made on legal insurance) would raise premiums - claims for criminal defence, previous convictions, getting married (potential cost of divorce/custody proceedings), buying a house, but the overwhelming majority of these are voluntary acts, unlike the capricious blight of many medical conditions. Of course a completely innocent person can be caught up as a defendant in a criminal trial, but most behaviour that would raise legal insurance premiums is behaviour for which we would ascribe high degrees of moral and legal culpability.
UNIVERSALITY & AFFORDABILITY
The likely approach to ensure universality of coverage of an insurance-based model is to include an individual mandate, as with Obamacare. I don’t think the constitutional impediments that almost scuppered that model in US would apply here, although the attitude of the Administrative Division or the ECJ to compulsory insurance by virtue of being a citizen (rather than for a given activity, like driving) could make for fascinating case law.
I also wondered whether the impact of a conviction on higher premiums for insurance mandated by statute could be considered a breach of human rights (legislatively prescribed sentence without judicial discretion). It clearly isn’t at the moment, in terms of higher motor insurance following points added to a licence, but motor insurance is voluntary (if you choose not to drive or have a car, you don’t need it). I’d welcome views on this point.
Certainly, I think it is clear that this could only apply to adults with full-capacity - those who require litigation friends would almost certainly require Legal Aid or government-funded insurance.
I think it is an open question whether an insurance model would be wholly State-run (akin to the ‘Single Payer’ proposal in the US healthcare debate), or wholly-private, or a hybrid system of both public and private insurance. I’m not sure that the question is particularly important - I think the pros/cons of a generic ‘mandatory individual legal insurance for adults’ (“MILIA”) can be discussed without necessarily recourse to specifying Single Payer/Private/Hybrid characteristics.
Let us just presuppose a requirement for every adult with capacity to have public or private legal insurance that covers (at an absolute minimum) criminal defence, so as to meet the standard demanded by Article 6(3). I would suggest that, practically speaking, government might demand that minimum coverage also cover basic family law proceedings (divorce & custody) for those who are married/parents, or public law actions. I wouldn’t expect that it would be mandated to have other areas of litigation insurance (such as personal injury or probate) although it would be within the realms of public policy to determine how comprehensively to set minimum standards, as with Legal Aid (LASPO Schedule 1).
I would argue that, given that the State still has to pay for the courts service, it would be in the Government’s interest to set quite high minimum coverage requirements for insurance policies, as it would decrease the likelihood of litigants-in-person and make for more efficient litigation. But this is a policy matter.
Two problems instantly present themselves:
(1) What factors should statute mandate are included/excluded by insurers in tailoring premiums for individuals?
(2) How to ensure that insurance is generally affordable, and that those for whom it cannot be made affordable are otherwise covered?
I think that the behavioural model dictates that previous claims on insurance are valid factors that should be included, to include ‘litigation history’ (whether publicly or privately funded) would be an included factor. To that end, I would expect all activity related to the criminal justice system from the moment of arrest would be an admissible factor to be used to calculate an individuals premium.
Similarly, if the policy covered family law, I would expect marital status, whether or not the person has children, would be admissible factors. Arguably, immediate family or other strong ties to other jurisdictions, making likely the possibility of Hague Convention complications in custody might need to be accounted for in factoring likely claims under family law.
Ownership of property and tenancy status would likely be reasonable factors if the policy covered other areas of civil law, as would employment status (as I would expect most policies to cover Employment Tribunals, even if not set as a mandatory minimum area by Statute.
However, I would argue that general socio-economic and demographic features should be explicitly excluded from factors used to set premiums. I would argue that it is unjust to make premiums for legal insurance higher on the basis of immutable (or difficult to change) characteristics that are not directly due to behaviour or life choices. Socio-economic class, race, gender, sexuality, education level, disability and age would - I suggest - be barred from being used by insurance companies to set premiums, meaning that statistical variations correlated to these characteristics would see the risk socialised across the entire adult population. This is, to be sure, an interference in the free-market of legal insurance, but one that maintains the social benefit of avoiding making legal insurance unfairly expensive for factors beyond an individual’s control. This is necessary, because (unlike motor insurance, whereby it is only mandatory if you choose to drive) legal insurance would be mandatory for all adults. In order to make it affordable (and fair) some burden-sharing is necessary, and this should be tied to uncontrollable factors, rather than those connected to voluntary behaviours.
Most adults of good character (in the legal sense), then, would pay a fairly flat rate for legal insurance (criminal and public), raised upon getting married or having children. The employed would likely pay a little extra, but property/housing related litigation would likely be covered by property (building & contents) insurance policies. For those without any/sufficient private income, the cost of premiums would need to be factored (at a standard rate only) into benefits as part of the cost of living calculation.
Significantly higher costs - so as to make legal insurance unaffordable to the extent that universality of criminal legal insurance might be threatened - would likely be reserved for those with extensive histories of contact with the criminal justice system. Persistent offenders - to include those with significant numbers of arrests and cautions, as well as convictions - would likely have massively higher premiums to pay. This is a feature rather than a bug of any insurance model designed to give a behaviourial nudge, but it is clear that there is a non-negligable minority for whom a private insurer would never be able to quote an affordable premium.
For such individuals, there would have to be some form of representation made by the State - either on an insurance or Legal Aid basis. Let’s call this the Persistent Offenders’ Defence Fund (“PODF”). As well as economic estimates of the expected standard premium, and increases associated with marriage/children/convictions, it would be essential to have evidence of the likely number of individuals who would be ‘uninsurable’. Clearly, if this number was so high a proportion of existing Legal Aid recipients, then the entire insurance model would fail.
Page 8 of these statistics suggests that, by the age of 53, 33.2% of Men and 9.1% of Women have a conviction. However, only 6% Men and 0.4 Women have 5 or more convictions by the age of 53. Even amongst offenders, only 18.1% of Male offenders have 5+ convictions (vs 51.7% with only the 1 conviction) and 4.5% of Female offenders have 5+ convictions (vs 74.9% with only the 1 conviction). If, for the sake of ease, we define persistent offending (to the extent that insurance would be unaffordable) as 5 convictions or more, the overwhelming majority of people on whom Legal Aid is already spent would be able to be covered by insurance.
Clearly, for those with 4 convictions having to pay high premiums, you would not want to incentivise a 5th conviction to enter the Persistent Offenders’ Defence Fund system. Those who were uninsurable would still have to pay PODF the premium of a 4-conviction adult, but would be allocated legal assistance from the PODF. I would expect this PODF to have permanent salaried lawyers - similar to the Public Defenders’ scheme in the US to limit the disparity between money paid in and expenditure.
I think there is an important, non-ideological conversation to be had about whether we can replace the current model of Legal Aid with Mandatory Individual Legal Insurance for Adults (“MILIA”) plus a smaller pot of Legal Aid for children, the incapacitated, and uninsurable persistent offenders. I think it could preserve the Bar’s independence, ensure sufficiency of funding for our traditional criminal justice system (including reducing the risk of abolition of jury trials), act to deter people from criminal activity and unnecessary civil litigation, whilst still meeting our international obligations.
QUESTIONS FOR THE READER
Beyond whether I’ve erred in my purportedly-uncontroversial premises or characteristics of any Legal Aid replacement programme, I think the viability of MILIA as a substitute for Legal Aid rests on the following questions, and I’d invite legal and political bloggers to give their thoughts on these questions (or to say if I’m asking the wrong questions):
1) Should, as a matter of ethics, the individual’s duty to contribute to the cost of their/other’s legal assistance have any behavioural ‘nudge’ component?
2) Would, as a matter of fact, a scheme (such as MILIA) that introduced behavioural metrics as a factor in determining cost to the individual actually do anything significant to shape individual behaviour?
3) Does an individual mandate for all competent adult citizens induce insurmountable ethical or legal objections, as almost happened in the US?
4) Would a scheme such as MILIA satisfactorily meet the demands of Article 6(3) and European Union law?
5) What factors should be explicitly included/excluded by Statute in the set of those used by insurers to determine individual premiums?
6) How wide should the scope of mandatory minimum civil legal coverage be, beyond criminal defence?
7) Are there significant differences (pro/con) between Single Payer/Fully Privatised/Hybrid insurance models?
8) What approximately would we expect the standard premium of an Adult of Good Character to be (for minimum insurance policy covering criminal defence only)? Current Legal Aid budget is about £2.2bn (half criminal, half civil) so around 40m adults suggests about £50/year average. Does this sound about right?
9) What proportion of offenders/the general population do we think would be ‘uninsurable’ based on their criminal records? How many convictions would likely make insurance unaffordable?
10) How high would the residual “Legal Aid” budget (Persistent Offenders’ Defence Fund, children’s legal aid etc) - still at the whim of Government budgeting - actually be?
Send me short responses via Twitter - I’m @Greg_Callus - or even better, write a response blogpost. I’ll RT all blogposts responding, and will share a collection of them here soon.
Cards on the table: I think Julian Assange should go or be sent to Sweden to face the allegations of sexual crimes in a Swedish court. I will do all I can to oppose any attempt by the United States to extradite him for his role in the Cablegate affair.
His extradition from the UK to Sweden has been found to be lawful by both the English High Court and the UK Supreme Court. Sweden has sufficient due process, and the protections of Article 6 of the European Convention on Human Rights that I am satisfied he would receive a fair trial. I have no strong view on his innocence or guilt, and think the presumption of innocence is frequently forgotten by Assange’s detractors, and confused with a need to believe in his innocence by his supporters.
The ONLY reason I would have any concern about him being extradited from the UK to Sweden is if this extradition materially increased the likelihood of him being extradited to the United States. The burden is on him and his supporters to show that this is so.
If extradited to Sweden, he will either be in custody (awaiting trial or as a sentence after conviction), or released. If he is released, then the UK would only be able to get him back if he was serving an imprisonable sentence in the UK before he was sent (ie if convicted of an offence, such as failing to surrender under s6 of the Bail Act). Otherwise he would be free to go anywhere upon being found Not Guilty - and I’d expect him to choose somewhere more difficult for the US to reach him than its European allies.
So going to Sweden and being found Not Guilty definitely reduces his chances of being extradited to the US. But how about if he were either in custody pre-trial or convicted and imprisoned? What if the US tried to extradite him from Sweden whilst he was in custody? Is that more likely than extradition from the UK?
“There are specific risks in Sweden – for example, its fast-track “temporary surrender” extradition agreement it has with the US.”
He is referring to Article VI of the US-Sweden Extradition Treaty (supplemental, 1984). As a commenter on Lenin’s Tomb called Fiaro notes, this clause is almost identical to Article 14 of the operative US-UK Extradition Treaty . But even if the UK didn’t have such an awful, one-sided treaty with the US, it would still apply to the UK, because of Article 9 of the EU-US Extradition Agreement (to which the UK and Sweden are party). Temporary Surrender is not unique, rare, or actually relevant.
Imagine the UK were to jail Assange for (let us imagine) breach of bail conditions but send him to Sweden before he served his UK sentence. On conclusion of his Swedish trial, Sweden could temporarily surrender him back to the UK to serve his UK sentence. If he had been found Guilty in Sweden, the English courts would then decide whether to send him back to Sweden for his Swedish sentence.
Temporary Surrender is a get-around in extradition law to allow people already prosecuted or convicted of crimes and serving jail time to be transferred temporarily, on the condition that they are returned to serve their prison sentence in the country that sent them.
So could Sweden use Temporary Surrender to send Assange to the US if he was being prosecuted there? Yes, insofar as they could extradite Assange to Sweden (allowed for by the same Treaty). But there is one, very important condition that has to be met for Assange to be sent to the US from Sweden, whether by extradition or by Temporary Surrender - it can only be done with the agreement of the British Home Secretary.
If Sweden had originally arrested and prosecuted Assange, they would have been entirely free to send him, by extradition or Temporary Surrender, to the US as long as there was an undertaking that he wouldn’t be tortured or subject to the Death Penalty (ECHR strictures).
But Sweden didn’t arrest and detain him for prosecution. The UK did, and Sweden’s mechanism for having control of Assange is through the European Arrest Warrant, or EAW for short. The EAW is a creature of EU law - begat by the European Arrest Warrant Framework Decision, to which all EU Member States including the UK and Sweden are signatories. It is binding EU law, supreme to domestic law in this area, both in the UK and in Sweden.
The EAW Framework Decision sets out how EAWs should work, and most importantly how to resolve clashes between competing demands for the same person. The State who originally have the Defendant in custody is the Requested State or Executing Member State. The States that want him are Requesting States. Requesting States that are using the EAW are also called the Issuing Member State.
For the purposes of Julian Assange, the Requested State/Executing Member State is the UK. The Requesting State/Issuing Member State under the EAW is Sweden. The US is also a Requesting State in this hypothetical. The UK and Sweden are both Category 1 countries, but the US is Category 2 - this matters for determining how any US request is treated.
The EAW Framework Decision says that:
1) If the UK received both a request from Sweden and from the US, Article 16(3) leaves it up to the Home Secretary to decide which one to grant. Assange cannot be extradited from the UK without the express permission of the Home Secretary.
2) If Sweden receives an extradition request from the US, they are bound by Article 28(4) which states very clearly:
Notwithstanding paragraph 1, a person who has been
surrendered pursuant to a European arrest warrant shall not be
extradited to a third State without the consent of the
competent authority of the Member State which surrendered
the person. Such consent shall be given in accordance with the
Conventions by which that Member State is bound, as well as
with its domestic law.
So if Sweden has Assange persuant to the EAW that the UK Supreme Court upheld, ”he shall not be extradited to a third State [the US] without the consent of the competent authority [the Home Secretary] of the Member State which surrendered the person [the UK]”. And the form of the UK’s consent would be in the ‘waiver of specialty’ which is codified not only in International Law, but also in section 58 of the Extradition Act 2003.
Consent to further extradition to category 2 territory
(1)This section applies if—
(a) a person is extradited to a category 1 territory (the requesting territory) in accordance with this Part;
(b) the Secretary of State receives a request for consent to the person’s extradition to a category 2 territory for an offence;
(c) the request is certified under this section by the designated authority.
(2) The designated authority may certify a request for consent under this section if it believes that the authority making the request—
(a) is a judicial authority of the requesting territory, and
(b) has the function of making requests for the consent referred to in subsection (1)(b) in that territory.
(3) A certificate under subsection (2) must certify that the authority making the request falls within paragraphs (a) and (b) of that subsection.
(4) The Secretary of State must serve notice on the person that he has received the request for consent, unless he is satisfied that it would not be practicable to do so.
We also know that, if the Home Secretary gave consent under s58, it would be as Judicially Reviewable as if she allowed his extradition from the UK to the US. In short, it makes no difference whether Assange is in Sweden or in the UK. The Home Secretary still gets the final say.
This is corroborated by Chief Magistrate Howard Riddle, in the original judgment in the Assange extradition matter (from end of page 27):
There was at one stage a suggestion that Mr Assange could be extradited to the USA (possibly to Guantanamo Bay or to execution as a traitor). The only live evidence on the point came from the defence witness Mr Alhem who said it couldn’t happen. In the absence of any evidence that Mr Assange risks torture or execution Mr Robertson was right not to pursue this point in closing. It may be worth adding that I do not know if Sweden has an extradition treaty with the United States of America. There has been no evidence regarding this. I would expect that there is such a treaty. If Mr Assange is surrendered to Sweden and a request is made to Sweden for his extradition to the United States of America, then article 28 of the framework decision applies. In such an event the consent of the Secretary of State in this country will be required, in accordance with section 58 of the Extradition Act 2003, before Sweden can order Mr Assange’s extradition to a third State. The Secretary of State is required to give notice to Mr Assange unless it is impracticable to do so. Mr Assange would have the protection of the courts in Sweden and, as the Secretary of State’s decision can be reviewed, he would have the protection of the English courts also. But none of this was argued.
In spite of Magistrates’ Court rulings not in themselves being binding precedent, the Chief Magistrate at City of Westminster Magistrates’ Court is as persuasive an authority on European and English extradition law as exists in this country. Not only would the Home Secretary’s decision be judicially reviewable, Assange would get notice of it, so as to be able to injunct the Home Secretary from giving consent until the English Courts had determined it lawful.
If the Home Secretary always gets the final say on extradition to the US, whether Assange is in Sweden or in the UK, then it is difficult to see how him being extradited to Sweden makes any difference at all to his chances of ending up in the US. If anything, going voluntarily and being found Not Guilty in Sweden actually seems to be his best chance of avoiding the US extradition request entirely, assuming he can be found Not Guilty before the Virginia Grand Jury finishes its business.
There are two possible holes in this argument. The first is that Sweden or the US would break the law on requiring the Home Secretary’s consent. The second is that they would find a meaning of the law that is different to that I’ve stated above and persuade judges that they were correct.
Could the US/Sweden break the law and send him from Stockholm and across the Atlantic without the Home Secretary’s consent? Yes, but I think it vanishingly unlikely they ever would. Theresa May is the most compliant Home Secretary imaginable, as demonstrated by her contemptible decision to allow the extradition of Richard O’Dwyer for crimes against 20th Century Fox. Why would the US or Sweden risk even the slightest diplomatic incident, to avoid the scrutiny of the woman most likely to agree to his being extradited? That makes no sense.
Could another interpretation of the law be found, that contradicts my claim that wherever Assange is (in Sweden or the UK) that it always comes back to a final decision of the Home Secretary (and so makes no difference if he faces the Swedish allegations)? Absolutely - all law is arguable, and I could formulate a couple of ways to claim that other readings of the law are possible. But they are (in my view) so outside of mainstream legal thinking, so radically torturous for the plain text to endure, that I don’t think a single judge would ever agree to them. And for such tortured meanings to work, it would have to endure the scrutiny of the English High Court, Court of Appeal, UK Supreme Court, European Court of Justice, and European Court of Human Rights. That simply won’t happen. The law is simply too clear for this to be realistic. If you think you have another reading of the law that could plausibly be accepted by the relevant courts, I’d genuinely love to hear it.
Whether Julian Assange is in the UK or in Sweden, his chances of extradition to the US are unchanged, because the final decision will always be that of the British Home Secretary. Therefore, I see no reason for him not to face the sexual offences allegations. When (or if) the Home Secretary does entertain the request from the US, I will fight that with ever sinew of my being. But that is a separate fight for another day. On the issue at present, I see no reason why Swedish justice should not run its course.
It is common knowledge by now that offences under the Data Protection Act 1998 (“DPA”) include a public interest defence (section 32). It is seemingly less-well-known (or at least it was) that computer hacking, including accessing e-mail by guessing passwords, constitutes an offence under the Computer Misuse Act 1990 (“CMA”) that has no such defence.
Whether Alistair Brett conducting the infamous NightJack litigation, or Sky News’ statement today on Gerard Tubb’s hacking of the Canoe Man citing the (genuine) public interest, it seems that the lack of a public interest defence hasn’t enjoyed the prominence it deserves. I have yet to see evidence before Leveson LJ that lawyers were forcefully imparting that for this reason, computer hacking was a much more risky mode of investigations than mere blagging.
Matthew Hibbert’s witness statement on behalf of Sky News to the Leveson Inquiry makes interesting reading in this regard. Sky News is, in my view, a very well-run journalistic outfit. As a broadcaster, it already faces stricter external regulation. However, although staff were provided with guidance on compliance with OfCom Broadcasting Code, Data Protection, editorial policy on accuracy and the new Bribery Act, no such written guidance existed for either the CMA or RIPA (the Regulation of Investigatory Powers Act 2000).
On page 5 (penultimate paragraph, emphasis added):
"Sub-paragraph f: There is no written guidance on the provisions of RIPA. The Sky News editorial and reporting staff to whom we have spoken have never intercepted communications and any proposal to do so would not be countenanced. The legal team that supports Sky News, as part of its day-today advice to the same, has advised various editors and journalists on the provisions of RIPA on an ad hoc basis”
Then over the page (second paragraph on page 6, emphasis added):
"Sub-paragraph h: There is no guidance documentation on the Computer Misuse Act 1990. The Sky News editorial and reporting staff to whom we have spoken are aware that unauthorised access to computers is an offence. The legal team that supports Sky News, as part of its day-to-day advice to the same, has advised various editors and journalists on the provisions of the Computer Misuse Act 1990 on an ad hoc basis.”
Alistair Brett’s evidence to Leveson is more remarkable still - one of Fleet Street’s most-esteemed media lawyers (and the champion of much of the libel law on which defendants still rely) states clearly that he was unfamiliar with the CMA and the lack of a public interest defence until the NightJack affair in 2009.
I have heard this apparent industry-wide blind-spot attributed variously to technophobia in the legal profession, to the focus of media work being libel & contempt of court, or to the relative obscurity of cases involving the CMA: there have been a mere 55 prosecutions in the last 22 years .
Maybe there was a degree of confusion for another reason. Whilst there is no “public interest defence” in the CMA, all crimes involve a 'public interest stage' of the 'Full Code Test' employed by the Crown Prosecution Service (CPS) before deciding whether or not to bring charges, although this doesn’t include the criterion that the person was acting in the public interest in committing the crime. Might the CPS public interest test for CMA offences, resulting in journalists not being prosecuted when doing public interest work, have transmogrified in the minds of lawyers into a CMA public interest defence? And were there any such examples that could have caused this confusion?
Well thanks to Michael J L Turner we have a comprehensive list of cases brought under the CMA. Several involve private searches of the Police National Computer, but journalism is conspicuous by its absence. The most serious instance involving newspapers was a printworker at Associated Newspapers making an offer to Express Newspapers to destroy his employers’ computer system for £600,000. But there’s one case in particular that might have shaped how media lawyers thought about the CMA.
On 28 November 1994, John Arlidge, the intrepid Scotland Correspondent for the Independent newspaper, broke a fantastic story about the laxity of protection given to customer data held by BT’s computer system. He was invited in by engineeer-turned-whistleblower Nigel Mahomet, a Royal Signals Regiment veteran, who was appalled at the access even temporary staff had that allowed them access to the addresses and phone numbers of even classified military installations. Mahomet demonstrated the flaws for Arlidge in person, and the latter exposed the scandal in a piece entitled "Telecom Computer Sheds Its Secrets" (£).
BT identified the whistleblower, and Mahomet was prosecuted at for an offence under Section 1 of the CMA (unauthorised access) at Middlesbrough Magistrate’s Court. He was acquitted by a Stipendiary Magistrate (now would be called a District Judge [Magistrates’ Court] or DJMC) who found no case to answer.
As a consequence of a clear aquittal in “R v Mahomet”, the CPS decided to drop the charges against the journalist John Arlidge. The Independent lauded the victory as a victory for journalism:
In a decision that safeguards a journalist’s right to receive secret computer information from sources, a stipendiary magistrate in Middlesbrough found that Nigel Mahomet, a former BT engineer, had no case to answer. A similar charge against John Arlidge, the Independent’s Scotland Correspondent, was dropped by the Crown Prosecution Service. Both had been charged with unauthorised access under the 1990 Computer Misuse Act.
The action, which could have made it illegal for journalists to receive computer information from sources not authorised to access it, was being seen as a test case. Last night, BT said it was “disappointed” and would be examining procedures “to see whether use of this Act can ever be justified … in future”. [emphasis added]
Now I don’t think there’s much doubt that the Independent was overstating the persuasive precedent-setting power of Middlesbrough Magistrates’ Court, and RE Bell reminds us (£) that the definition of “unauthorised use” was later settled by the House of Lords in 1999 in a way that might have changed the verdict. But to the extent that the lawyers of Fleet Street were aware of CMA offences (there had only been 17 prior to Mahomet) its conceivable that this case seemed a ringing endorsement that journalists could use information derived from computer hacking with impunity when there was a public interest argument.
Much of the problem with the lack of a Public Interest Defence in the CMA, unlike the DPA, is to be found in the way the CMA was rushed to Parliament. The Law Commission had prepared Working Paper No. 110 Computer Misuse (1988), but Hansard is clear that this was a rare instance where the Law Commission did not also provide a draft Bill. The House of Commons debate at the Second Reading of the Bill on 9th February 1990 (column 1134 onwards) then had in common with the Law Commission Report that it did not mention the possibility of a “public interest defence” whatsoever. This is in stark contrast to the Official Secrets Act 1989, which amongst other things made a much-debated point of removing the public interest defence that had been provided for by section 2 of the 1911 Official Secrets Act.
I don’t think that a public interest defence was deliberately omitted from the CMA 1990 - I think it was overlooked. I certainly think there should be a public interest defence for computer hacking, although I would say that in order for it to apply, intent to committ the offence and rely on a public interest defence should be documented in advance, and the police should be contacted by the journalist as soon as possible afterwards so the decision can be assessed objectively.
I think Gerard Tubb’s seeking prior authorisation from his editor and then turning over of his evidence to the police and prosecutors at the time strongly suggests that he considered he was acting unashamedly in the public interest. Should the CPS choose to now charge him with CMA offences having themselves used the product of such a crime to prosecute fraudsters, I would hope (if tried upon indictment) for a rare case of jury nullification, or (if tried summarily) for the DJMC to think about the decision in R v Mahomet before deciding the case…
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There are skeptics who don’t think much will come out of the Leveson Inquiry. Guido Fawkes told Leveson LJ that the true test would be prosecutions arising out of Operation Motorman, and Hugh Grant will seemingly not be satisfied until there’s a statutory regime for regulating Twitter. Everyone has their own wishlist, items of which would horrify other Core Participants.
I am more optimistic, and have just one, uncontroversial aspiration of the Leveson Inquiry: that its findings will kill-before-birth the abhorrent General Surveillance Policy which is being floated in the press today (and which is apparently not an April Fool). When the dust has settled on blagging and listening to the occasional voicemail, the most staggering revelations of Leveson will likely surround the practice of ‘Pinging’, the corruption that enabled it, and the regulatory failure that allowed it to happen right under the nose of the State.
Anticipating the policy bun-fight to come, already the soothing voices of authoritarianism at the Home Office are assuring us that:
"We need to take action to maintain the continued availability of communications data as technology changes. Communications data includes time, duration and dialling numbers of a phone call, or an email address. It does not include the content of any phone call or email and it is not the intention of government to make changes to the existing legal basis for the interception of communications.”
Let’s pick apart that Home Office quote.
The State does already have the power to intercept the content of emails and phone calls, but it needs a warrant from a Warrant Issuing Department such as SOCA or the UK Border Agency. This happens several hundred times a year, and is done mostly for the purposes of anti-terrorist operations. For those who are interested, this power is to be found in Part I, Chapter I of “RIPA” - the Regulation of Investigatory Powers Act of 2000.
But there is a less well-known part of RIPA - Part I, Chapter II which came into force in early 2004, and allows any police force, local council, and a whole host of other public sector organisations to effectively self-certify authorisation to compel telephone companies and ISPs to hand-over access to Communications Data - not the content of phone calls and emails, but traffic data such as the identity of parties, the IP addresses/telephone numbers, and the locations of the parties at the time of a communication.
In the case of mobile phones, the providers are able to triangulate the position of any mobile phone by ‘pinging’ it and seeing to which telephone masts it responds and the strength of signal at each. The particular signature communicated as a phone is being turned off was a key piece of evidence - likely critical in fact - in convicting Ian Huntley of the deaths of Holly Wells and Jessica Chapman.
Thanks to Sean Hoare’s interview with the New York Times shortly before he died, we already know that tabloids used this method to identify the whereabouts of certain celebrities. From the NYT article from 11 July 2011:
A former show-business reporter for The News of the World, Sean Hoare, who was fired in 2005, said that when he worked there, pinging cost the paper nearly $500 on each occasion. He first found out how the practice worked, he said, when he was scrambling to find someone and was told that one of the news desk editors, ——- ———, could help. Mr. ——- asked for the person’s cellphone number, and returned later with information showing the person’s precise location in Scotland, Mr. Hoare said. Mr. ———, who faces questioning by police on a separate matter, did not return calls for comment.
The article also remarks on the regime that supposedly regulated this accessing of private Communications Data, noting that authorisation is required on a case-by-case basis. When any of the public bodies to whom RIPA applies decides that it has an instance (maybe a fiendish villain sending their kids to the right school) where it needs to check someone’s location, or with whom they are communicating, there is a procedure for communicating that to the ISP/Telephone company (generically referred to as Communications Service Providers, or CSPs).
'PINGING': PROCEDURE AND INSPECTION
Within each public authority, a Designated Person (DP) objectively assesses the request of the police officer (or whomsoever is asking for the data), and if they agree they refer it to the RIPA Single Point of Contact (SPoC) who refers it to the CSP. The SPoC has a Personal Identification Number (PIN) which accompanies the notification to the CSP, to authenticate that it is a genuine RIPA notification to provide Communications Data. The integrity of the entire process is the responsibility of the Senior Responsible Officer (SRO). Every public authority should have a DP, a SPoC, and an SRO.
This whole system is overseen by the Interception of Communications Commissioner (the ICC is usually a retired judge from the Court of Appeal - Sir Paul Kennedy handed over to Sir Mark Waller in January 2011), who is ably assisted by a Chief Inspector and 5 Inspectors, who visit the various public bodies who use their RIPA powers and check their processes work.
The IPC also reviews a significant sample of the Part I, Chapter I interceptions, which are police/security services interceptions that also include the content of communications, as well as interceptions of communications in and out of prisons. There are a few hundred Chapter I interceptions each year and every mistake or error (transposed digits in a telephone number being the most common) is recorded and explained to the IPC. The system seems to work well - there, I think, is adequate oversight when SOCA/MI5/MI6 or other Warrent Issuing Departments (WIDs) want to listen to your phone conversations. Each WID is inspected twice annually.
But the Chapter II interceptions, of just Communications Data, like the result of Pinging to locate a data subject, are not as thoroughly externally monitored. This is because there are over half a million such interceptions each year - around 550,000 last year and growing at 5% per annum. These are instances of police officers, or council officials, or someone working for the Royal Mail, or the OFT, or the Health & Safety Executive, seeking to ascertain who owns a mobile phone, or where the owner was a certain time, or who they called on Monday morning. Around 650 errors are recorded each year. There are hundreds of public authorities who have this power, although the majority do not make much use of them, and thousands of people who have the power to request access to your Communications Data.
Sometimes, there isn’t time for a written request because of an imminent threat to life and limb, and so the Urgent Oral procedure kicks in - the SPoC will normally be rudely awoken by a police officer explaining they have (eg) an urgent terrorism/kidnapping situation, and they need a notification to be sent to the CSP urgently. This happened over 31,000 times last year, up from around 21,000 times the year before, and around 87% of police forces were good or satisfactory in their post-haste record keeping which is a statutory requirement if there isn’t paperwork at the time.
How many of these tens of thousands of urgent oral requests went unrecorded? I can’t tell you, because the very presence of an oral procedure with a less-than-perfect score for record-keeping means that there could be any number of applications for private Communications Data that have never been logged.
How can the oral authorisation of interception (without warrant) on this sort of scale possibly be within the intention of Parliament?
Perhaps we could rely on the CSPs like Vodafone, or O2, or EverythingEverywhere to tell us exactly how many requests came through to them for Communications Data under Chapter II. Because they would definitely know, given that under RIPA s24, the CSPs can and do charge public authorities that make such requests. It’s a burden on them, and they are compensated by the public purse. I’m sure the illicit ‘pings’ ordered by news editors would have looked entirely innocent to the CSPs, and probably would have been billed back to the police force, or the Secretary of State in the normal way.
The irony of the News of the World phone-hacking scandal is that if you’re a taxpayer, you probably helped pay for those exclusives.
CONCLUSION - FOR THE MOMENT…
I make no criticism of the ICC, or the Investigatory Powers Tribunal, or the Inspectors who I’m sure do an excellent job at guarding the guards. But it is clear that the 94 organisations inspected for Chapter II interceptions last year are capable of making more requests for Communications data than could ever be scrutinised by any inspectorate this small. A sensible approach has been taken to conduct sampling, but when each an every breach is the State prying into the intimate details of its citizens lives, I think a more robust system is necessary.
There are accusations from ITV, from Panorama, from the Guardian, from the New York Times, that journalists and private investigators have enjoyed relationships with corrupt police officers to obtain private information. Part of this information has included the whereabouts of celebrities, or witnesses. Whilst some mention has been made of attempts to blag information from phone companies in the Operation Motorman era (pre-2003), since 2004 there has been a way of getting Communications Data from CSPs without having to mislead them, or rely on failures in their processes.
How was this done? Was a DP bribed or duped by a requesting officer? Was a SPoC bribed, or duped by a DP? Was a SPoCs PIN (for CSPs to authenticate the notifications) leaked? Why did the various SROs fail to spot requests for data that could not possibly be linked to any serious crimes? And is there anything that the ICC or the IPT could have done to regulate illicit data requests?
Pinging will be the next major phase of this scandal - if listening to celebrity voicemails is a distasteful invasion of privacy, having journalists bribe police officers to obtain their real-time location (presumably so the paparazzi could be sent round…?) is far more sinister. I have a million thoughts on the rights and wrongs of statutory regulation of the Press, but it just doesn’t matter when compared to the power of surveillance already given to every council, police force and public authority who might want it, without any sufficient oversight.
If Lord Justice Leveson’s Inquiry is to do anything constructive, it should highlight how widely government has already distributed the power to spy on our Communications Data, how little it has managed to safeguard us against misuse of those powers to date, and to make us think twice before we give the State any more power to monitor our thoughts, expressions and movement.
Send me tips and feedback via Twitter: I’m @Greg_Callus