23 December 2013

Wind up..

Not seen Mr Blackbird this morning. Mr Robin has taken his place in the plum tree. Put some bread scraps and bacon rind out for them. Walking down to feed the chooks the wet wild wind is blowing stinging rain into my face and turning compost bin lids into frisbees. The trees are humming in it. Most of the tin roof of the shed has blown off along with some heavy timbers supposedly holding them down.  Two panes of the greenhouse next to it have been smashed.  Hey ho: work for another day.

 A vote is taken and the chooks opt to stay in where they have a new layer of clean dry straw, fresh bedding in the nesting boxes and a bucketful of feed. The only complaints are from the ducks who like to be out whatever the weather is doing. If I let them out though they will just scumble in the muddy puddles with their beaks and root up the grass cover which, once gone, is hard to get back again and the plot will eventually become just bare earth which so many chikkin plots are. Don't really want that.  

17 December 2013

Red Pill - Blue Pill

[click to enlarge]

I can think about years or tens of years, maybe even a few centuries, but after that it's a struggle. Anything much beyond that is really abstract. The same sort of thing is true of space or quantity. Infinities? Out of the question. 

If each letter in the image represents the twinkle of an eye, let's say a million or 10 million years of change, our brains just can't cope with that scale depth...they're not wired to. It's one reason evolution is rejected: it's counter intuitive.


Which begs the question: where are we gonna suddenly get the ability to think long term from? To think and act like we might still be around in a paltry five thousand years or so? I dunno. Strange & upsetting to live in a time where we can see what's coming down the line but can't prevent it.

pwn goal

I probably don't understand football. I mean, if they put the net at the front of the posts that would remove the need for expensive goal keepers wouldn't it? Plus all those other people wouldn't have to run around kicking a ball and getting very tired.

11 December 2013

Operating Thetan - Level Three.... (at least)

This is great! If you all agree to worship Clod, I can set my plot up as a place of worship (it is anyway), and get tax exemption and you can come and get married there... and I can marry chikkins, even same sex ones and if you bring your accounts, I'll audit you as well with my C-meter.

"Religion should not be confined to religions which recognise a supreme deity," wrote Lord Toulson, giving the judgment.

That's some tortoisesology. Anyone know what it IS necessary to recognise in order to be a religion then?

"Of course," points out commenter Basil, "this is no "ordinary Scientologist wants to get married" story.  She is the daughter of Peter Hodkin, Solicitor, of East Grinstead - Scientologist, responsible for sending out hundreds of threatening letters to anti-Scientology protesters under instruction of the cult, He's also Scientology's official lawyer in the UK, and "copyright holder/enforcer" for Scientology texts in the UK."

Did Scientology Change The Internet?

EDIT: The dumb court backed itself into a position where it is now going to get asked to define what is and what isn't a religion. Courts oughta deal in the realm of verifiable facts, not in the realm of the subjective and the personal. In the case of the latter, it should be saying 'whatever floats your boat..not our business', unless there's some harm principle at issue.' Teh state oughta be more careful: it should recognise that whatever religion is to some folk, it IS relly relly important to them, but it should butt out of defining what that something is imo.

10 December 2013

Smoked Clodlet

 Long day spent tidying up the plot/s, burning detritus and taking whatever could be usefully recycled to the dump.
Clodlet worked unusually hard: he gets easily distracted like most youngsters do!

Always time for a nice duck cuddle though.


quincey clod


Lots of quince and apple jelly methinks.

Pixelated

Saw a pixie up the apple tree.  No kidding.

21 August 2013

Miranda - Rights or Wrongs?

Regardless of whether you think Snowdon, in revealing the extent of various governments involvement in the monitoring of private citizens data is a criminal offence (probably), or that it is morally justified (or not - undecided), the detention of Miranda under schedule 7 of the Terrorism Act 2000, looks (on its face) to be a sting operation to obtain the data in Miranda's possession by using terror legislation to bypass the normal legal routes through which journalistic materials may be legitimately obtained. If that's right, it seems to me highly dubious: two wrongs don't make it right.

So, this letter from his legal team kicks off Miranda's challenge:

1. We write to inform you that we intend to challenge our client’s
detention under Schedule 7 Terrorism Act 2000 at Heathrow airport
on 18 August 2013, and the consequent unlawful taking and retention
of his property including sensitive journalistic materials.

2. We have set out our proposed grounds of claim below. The purpose of
this letter is to comply with the CPR 54 Judicial Review Pre-Action
Protocol. We also want to give the Defendants an opportunity to
reconsider their position and respond in a way that either makes the
proposed claim unnecessary, or narrows what is in dispute, or at least
makes their position clearer.

3. In terms of the timing of any proceedings which may be necessary, we
require immediate undertakings, set out below, to prevent any
further harm caused by the Defendants’ actions whilst the legality of
the seizure of his property is in the process of being determined. If
undertakings in the following terms are not provided by 12pm on 20
August, we will be left with no option but to seek urgent interim
injunctive relief in the High Court and seek costs on an indemnity
basis.

4. We ask that the Secretary of State and the Commissioner of Police of
the Metropolis undertake that there will be no inspection, copying,
disclosure, transfer, distribution or interference, in any way, with our
client’s data which was seized pursuant to Schedule 7, pending
determination of our client’s claim.

5. If there has already been inspection, copying, disclosure, transfer,
distribution or other interference with that data we require
undertakings that the product of that inspection or interference will
not be disclosed, shared or used further in any way, and will be kept
secure pending the outcome of our client’s challenge to the legality
of the seizure of that data.

6. If any other public authority or third party – either domestic or
foreign – has been granted possession or access to that data (or copies
of it) we require you to provide similar undertakings from each of
those parties if you are in a position to do so. Further, or
alternatively, we require immediate disclosure by you of the identity
of those parties to whom such access or disclosure has already been
given so that we may obtain similar undertakings from them directly.

7. Our client’s electronic equipment, including his mobile phone, laptop,
memory sticks, smart-watch, DVDs and games consoles were
confiscated. In addition to the undertaking’s outlined above, we
would ask that the property be returned within 7 days of their being
taken, and no later than 25 August, as set down in paragraph 11(2) of
Schedule 7.

8. By way of remedy, we seek a quashing order, and a declaration that
the decisions to detain our client, question him under pain of criminal
sanction, and seize his property under Schedule 7 were wholly
unlawful. We will also seek a mandatory order that all data seized
and all copies be destroyed, and recalled if transferred to third
parties. We will argue that the decisions were unlawful for the
following reasons:

i. The Schedule 7 powers were utilised in relation to our
client who was merely in transit in the UK. The
Defendant is required to justify the use of Schedule 7
powers in relation to a person in such circumstances.
ii. The decision to detain and question our client and to
seize his property pursuant to the powers in Schedule 7
amounted to a frustration of the legislative policy and
objects of the Terrorism Act 2000 Schedule 7 power
and/or was for an improper purpose, and was therefore
unlawful.
iii. The decisions to use Schedule 7 powers in our client’s
case amounted to a grave and manifestly
disproportionate interference with the Claimant’s
rights under Articles 5,6,8 and 10 ECHR.
iv. Further, or alternatively the powers under Schedule 7
are incompatible with Articles 5,6,8 and 10 ECHR.

9. Given the urgency of the matter, this letter is sent to outline our
grounds and put the Defendants on notice of the claim. However, as
further details emerge, we reserve the right to amend our grounds.

10. We are aware that there are a number of cases in which Schedule 7
powers are in the process of being challenged. However, the use of
Schedule 7 powers in relation to our client in order to obtain access
to journalistic material is of exceptional and grave concern.

11. We hope that the misuse of this power in these circumstances will be
clear, and that we can reach agreement on the legality of our client’s
search, given the facts of the case. However, insofar as our client’s
claim also makes a wider challenge to the compatibility of Schedule 7
with fundamental rights and seeks declaratory relief, it appears to us
that this will require Parliamentary action if the court agrees with the
Claimant. Therefore, it will be incumbent upon us to issue
proceedings, in any event. For that reason, we consider it
appropriate to abridge the time of service for the detailed protocol
response to 7 days. If you disagree, please let us know by return and
set out your proposed timetable. We stress, however, that we seek
the undertakings set out above on a more urgent timetable.

12. We would be grateful if you would respond to this letter in line with
the pre-action protocol for judicial review by close of business on 27
August.

Factual Background

13. Our client, Mr David Miranda, is a Brazilian citizen. He is in a long
term relationship with Mr Glenn Greenwald a journalist, who has
written a series of stories for the Guardian including articles relating
to mass surveillance programmes by the US and UK government
agencies.

14. Our client assists Mr Greenwald in his legitimate journalistic work and
was doing so when he was detained, pursuant to Schedule 7 powers.

15. At that time, our client was travelling from Berlin to the couple’s
home in Rio di Janeiro via Heathrow airport on 18 August 2013. During
his trip to Berlin, he visited Laura Poitras, a film-maker who has been
working with Mr Greenwald. The Guardian paid for our client’s flights
because of the work he was doing with Mr Greenwald.

16. At 8.05am our client was detained, shortly after he had begun
changing flights and was in transit at Heathrow airport.

17. Guardian News contacted Kate Goold, Associate in this firm’s crime
team. She arranged for Mr Gavin Kendall to represent Mr Miranda.

18. After multiple efforts to make contact with our client through an
initial telephone call, Mr Kendall attended in person as he was given
no telephone access to our client.

19. Mr Kendall arrived at Terminal 5 at 3.25pm. He called a sergeant who
said he would send someone to collect him. Twenty minutes later he
was brought through by an officer whose warrant number was 203654.
The only explanation proferred by the police for our client’s
treatment was that he was detained pursuant Schedule 7 Terrorism
Act 2000 at 8.05am. They confirmed that he would be released at
5.05pm.

20. At 4.05pm Mr Kendall was finally granted access to our client – just
one hour before the 9 hour statutory maximum detention power
expired and after our client had been subject to intensive, intrusive
questioning by approximately six different officers over the day.

21. Mr Kendall asked whether our client was being detained as a result of
a suspected offence in the UK or on behalf of another state, country
or government organisation abroad. He was told the police could not
say and was not provided with any explanation for his detention. They
refused to confirm what our client had been asked before his
representative arrived, nor would they provide him with a record of
what was discussed. Our client asked for a pen to write down the
questions and this too had been refused. Our client was not provided
with an interpreter and found the whole experience most distressing.

22. At 8.15am our client was issued with the appended Schedule 7 Notice
of Examination TACT 1 form which described the purpose of his
detention as follows:
“This notice is to inform you that you are being questioned under the
provisions of Schedule 7 to the Terrorism Act 2000 as someone whose
presence at a port of in the border area (in Northern Ireland) is
connected with entering or leaving any place in Great Britain or
Northern Ireland.
This applies to a person travelling by air [….]
This in itself does not necessarily mean that the Examining Officer
who is questioning you suspects that you are a person who is, or has
been, concerned in the commission, preparation or instigation of
acts of terrorism. The purpose of the questioning is to enable him to
determine whether you appear to be such a person.
At this stage you are not under caution, arrest or detention.
However, should the circumstances change you will be notified.
Your Duties”
[…you must answer all questions and hand over any data or
documents requested ]
“If you deliberately fail to comply with any of these duties, you
could be prosecuted under paragraph 18(1) of Schedule 7 to the
Terrorism Act 2000.”

23. At 8.25am he was served with the TACT2 Notice of Detention
(INTERIM 2011). A copy of that notice is appended hereto.

24. The following items were listed on our client’s ‘Detained Property
List’ which is appended to this letter signed by examining officer
206005:
1. Samsung Laptop
2. Samsung Phone
3. 1 x Gold, 1 x Silver Memory Stick
4. 2 x DVDs (The Oath My Country My Country)
5. Sony Games Console
6. Smart Watch
7. Hard Drive.”

25. These items contain sensitive, confidential journalistic material and
should not have been seized. It is axiomatic that if the police seek
access to sensitive/personal/confidential/journalistic material of this
kind they will ordinarily be required to do so by way of a production
order and will have had to satisfy a number of important legal
requirements that protect journalistic material of this nature. The use
of Schedule 7 powers against our client appears to have enabled the
police to circumvent all of those important legal protections and
obtain that information from him by coercive means accompanied by
the threat of prosecution if he failed to comply.

Legal Framework and Submissions
Schedule 7 to the Terrorism Act 2000

26. Schedule 7 gives police officers and other officials broad powers to
detain, question and search individuals travelling through ports and
airports in the United Kingdom to determine whether or not a person
appears to be a terrorist, as defined by section 40(1)(b) of the Act.

27. Paragraph 2 applies to a person if (a) he is at a port or in the border
area and(b) ‘the examining officer believes that the person’s
presence… is connected with his entering or leaving Great Britain or
Northern Ireland or his travelling by air within Great Britain or within
Northern Ireland’.

28. Importantly, those powers do not require reasonable grounds for
suspicion (or even subjective suspicion) on behalf of the officers
exercising them. On the contrary, they are only capable of being
exercised where the individual in question is not suspected of being
involved in terrorism: individuals who are suspected of involvement in
terrorism must immediately be cautioned and advised of their legal
rights (including the right to remain silent) and cannot be compelled
to answer questions.

Application of Schedule 7 powers

29. Our client had not entered through UK immigration, nor was he
travelling by air within Great Britain or the UK.

30. In such circumstances, the Defendant is required to justify how
Schedule 7 powers could apply to an international traveller who is at
an airport in transit without ever passing into the United Kingdom.
Misuse of power / improper purpose

31. The decision to detain, question and search our client involved an
unlawful exercise of the powers under Schedule 7. The powers under
Schedule 7 are intended to facilitate inquiries aimed at determining
whether the person being questioned is or has been concerned in the
‘commission, preparation or instigation of acts of terrorism’.
‘Terrorism’, for these purposes, means the use or threat of violence
designed to influence the government or intimidate the public and
which is done for the purpose of advancing a political, religious, racial
or ideological cause (section 1).

32. Our client is a Brazilian citizen. He is in a relationship with an
American journalist who writes for international newspapers such as
The Guardian and The News York Times. At the time of his detention
and search under Schedule 7, our client was travelling to Brazil in
connection with his and his partner’s legitimate journalistic activities.
Our client has no criminal record. Neither our client nor his partner
has any connection with any terrorist or extremist groups of
proscribed organisations. The Defendant’s use of Schedule 7 powers in
the present case was therefore plainly not aimed at investigating
whether our client was involved in the commission, preparation or
instigation of politically motivated acts of violence. This is evident
from the nature of the questions that were put to our client during his
Schedule 7 interviews, which did not suggest any involvement in the
preparation etc. of unlawful violence.

33. Instead, in the absence of any other explanation, it appears clear that
the decision to detain, question and search our client was driven by a
desire to obtain access to the confidential journalistic material that
was in our client’s possession. The Defendant’s exercise of the
Schedule 7 powers was not pursuant to the proper statutory purpose,
but was for a different, improper purpose. In frustrating the
legislative purpose, the Defendant has acted unlawfully: Padfield v
Minister of Agriculture, Fisheries & Food [1968] AC 997.

34. Schedule 7 is not intended to be used as a mechanism for gaining
access to journalist and others’ private information merely because
journalists are passing through a UK port. A number of legal
mechanisms are available to a public authority that wants to obtain
confidential information held by a journalist, including application to
the Crown Court for a production order. Those mechanisms contain
explicit safeguards that are designed to protect the confidentiality of
journalistic sources and to prevent disproportionate infringements of
journalists’ Article 10 rights.

35. For example, the Police and Criminal Evidence Act 1984 (PACE)
enables public authorities to apply for search warrants or production
orders that enable the police to search premises and seize property
and comupterised information connected with the commission of
criminal offences. Under the Act, some classes of material are
subject to additional protection from seizure. These include legally
privileged material, journalistic material and certain types of
material held in confidence. “Special procedure material” is defined in
section 14 of PACE and includes journalistic material and material
acquired in the course of a trade, profession or similar and which is
held subject to a duty of confidence. Schedule 1 of the Police and
Criminal Evidence Act 1984 sets down conditions for the police to
apply to court for a warrant to compel a person to hand over (or to
seize) special procedure material, if certain conditions are met.

36. Similar provisions are contained in schedule five to the Terrorism Act
2000. Broadly, in terrorist cases, the court can order the production
or seizure of special procedure material where the order is sought for
the purposes of a terrorist investigation; there are reasonable grounds
for believing that the material is likely to be of substantial value to
that investigation; and there are reasonable grounds for believing that
it is in the public interest for the material to be disclosed, having
regard to the benefit likely to accrue to the investigation, and the
circumstances under which the person had the material in his or her
possession. These conditions are reasonably similar to those under
PACE, albeit slightly less stringent.

37. By using Schedule 7 to obtain our client’s confidential journalistic
information, the Defendant deliberately bypassed the appropriate
statutory regimes for obtaining confidential journalistic information
and circumvented the important safeguards (including the
requirement to obtain a court order before seizing material)
contained in those mechanisms. The decision was a flagrant misuse of
the Defendant’s statutory powers.
Arts 5,6,8,10 ECHR

38. The Defendant’s actions in detaining, questioning and searching our
client and confiscating his confidential journalistic material breached
our clients rights under Articles 5, 6, 8 and 10 of the European
Convention on Human Rights (as incorporated into English law by the
Human Rights Act 1998).

Article 5

39. Our client was detained by police for almost nine hours in a secure
area at Heathrow Airport. During this time out client was not
permitted to leave the room in which he was held and was prevented
from contacting his family and friends. His detention therefore
constituted a deprivation of liberty for the purposes of Article 5
ECHR.

40. The European Court of Human Rights has previously indicated that, in
relation to a ‘stop and search’ lasting between 20 – 30 minutes, the
‘element of coercion involved was indicative of a deprivation of
liberty’ (Gillan v United Kingdom). Similarly, in Shimovolous v Russia
(App. No. 30194/09, 21 June 2011) the Court found a deprivation of
liberty in circumstances where an applicant was taken to a police
station to establish his identity and to answer questions regarding his
movements, during a process that took 45 minutes. It is therefore
clear that detaining an individual in a secure zone at an international
airport lasting for almost nine hours engages Article 5.

41. The Applicant’s detention was not ‘in accordance with law’. Gillan v
United Kingdom establishes that a power to stop, search and question
a person through coercion will not be ‘in accordance with the law’ if
it is insufficiently circumscribed and lacks sufficient safeguards
against its arbitrary exercise and abuse. The Schedule 7 powers used
against our client fail to meet those requirements.

42. Our client does not, of course, suggest that all powers of questioning
and search at airports and ports should be curtailed or are invalid.
Immigration officers properly use other more carefully circumscribed
and focused powers that enable them to question passengers at
airports. However unlike Schedule 7, those powers are proportionate
and are significantly curtailed because they are directly connected to
the context in which the person is travelling, their immigration status
and their movement of goods into or out of the country.

43. In contrast, the powers under Schedule 7 are too broadly drawn. They
provide wide scope for disproportionate and discriminatory use:
(a) First, in the absence of a requirement of reasonable
grounds for suspicion, there is no meaningful way of
properly focusing on who will be examined and preventing
subjective and illegitimate factors – for example, a desire
to obtain information unrelated to potential involvement in
terrorism – from contaminating the exercise of those
powers.
(b) Second, the powers themselves are disproportionate. The
breadth of searching, questioning and investigation that
officers may undertake has no rational connection to a
person’s presence at a port or his activity at that location.
The powers therefore go far beyond the activity that
triggers them (namely, a person’s arrival at a port).
Accordingly, merely because a person happens to be
travelling, police officers may require him to answer
questions about matters entirely unconnected with his
travel, or to seize and copy his possessions. Persons may be
subjected to questioning or searches that would be entirely
inappropriate in any other location (or which would at
least be accompanied by certain legal protections if
conducted elsewhere).
This scope for abuse, while theoretical in some cases, is
illustrated vividly by the use of the powers on our client in
this case.
(c) Third, in general terms, there is no way to prevent
improper racial, religious or other discrimination in the
exercise of Schedule 7 powers other than through
encouragement not to do so in the accompanying Code.
Statistics consistently reveal a significant disparate impact
of the exercise of Schedule 7 on minority communities.
Nor is there any way of sufficiently ensuring that the
powers are not applied for an improper purpose.

44. Our client’s deprivation of liberty cannot be justified under Article
5(1). The only potentially relevant ground for justifying the detention
is contained in Article 5(1)(b): ‘lawful arrest or detention… in order
to secure the fulfilment of any obligation prescribed by law’. The
case law of the Strasbourg Court demonstrates that, for this ground to
apply, the ‘obligation’ must be ‘already incumbent on the person
concerned’ prior to the police exercise their powers to compel the
fulfilment of that obligation (see Vasileva v Denmark Application No.
52792/99, 25 September 2003).

45. At the point in time when our client was subjected to Schedule 7
powers he was lawfully progressing through transit at Heathrow
Airport and had not failed to comply with any order or obligation
prescribed by law. Accordingly, there was no lawful basis under
Article 5(1) for depriving our client of his liberty.
Article 8

46. Our client was held for almost nine hours, during which time he was
prevented from contacting his partner and he was required to answer
a number of personal questions including about his relationships. Our
client was physically searched and prevented from boarding his flight
to his home country of Brazil. In addition, his personal belongings,
including electronic devices, his mobile telephone and laptop were
seized for the purpose of searching their contents. In these
circumstances, there was clearly an interference with our client’s
Article 8(1) right to respect for his private life and correspondence.

47. That interference must be justified under Article 8(2) and must be ‘in
accordance with the law’. For the reasons explained above in relation
to Article 5, the interference with our client’s rights under Article
8(1) was not in accordance with the law. In addition, since our client
has no involvement in any terrorist activities, his detention also failed
to pursue any legitimate objective. For all these reasons, the
Defendant’s decision to detain, question and search our client
violated Article 8.

Article 10

48. The case law of the Strasbourg Court repeatedly emphasises the
importance of protecting journalists’ sources. In Goodwin v UK (1996)
1 BHRC 81 the Court stated:
‘Protection of journalistic sources is one of the basic conditions for
press freedom, as is reflected in the laws and the professional codes of
conduct in a number of contracting states and is affirmed in several
international instruments on journalistic freedoms (see amongst others the
Resolution on Journalistic Freedoms and Human Rights, adopted at the 4th
European Ministerial Conference on Mass Media Policy (Prague, 7–8
December 1994) and the Resolution on the Confidentiality of Journalists’
Sources by the European Parliament of 18 January 1994 (OJ 1994 C44, p
34)). Without such protection, sources may be deterred from assisting the
press in informing the public on matters of public interest. As a result the
vital public watchdog role of the press may be undermined and the ability
of the press to provide accurate and reliable information may be adversely
affected. Having regard to the importance of the protection of journalistic
sources for press freedom in a democratic society and the potentially
chilling effect an order of source disclosure has on the exercise of that
freedom, such a measure cannot be compatible with art 10 of the
convention unless it is justified by an overriding requirement in the public
interest.’

49. In his concurring judgment Judge De Meyer emphasised that:
‘The protection of a journalist’s source is of such a vital importance for the
exercise of his right to freedom of expression that it must, as a matter of
course, never be allowed to be infringed upon, save perhaps in very
exceptional circumstances…’

50. The Court recently restated these principles in Financial Times v
United Kingdom (2009) 28 BHRC 616:
‘The court reiterates that freedom of expression constitutes one of the
essential foundations of a democratic society and that, in that context, the
safeguards guaranteed to the press are particularly important.
Furthermore, protection of journalistic sources is one of the basic conditions
for press freedom. Without such protection, sources may be deterred from
assisting the press in informing the public on matters of public interest. As a
result, the vital ‘public watchdog’ role of the press may be undermined and
the ability of the press to provide accurate and reliable reporting may be
adversely affected. Having regard to the importance of the protection of
journalistic sources for press freedom in a democratic society and the
potentially chilling effect that an order for disclosure of a source has on the
exercise of that freedom, such a measure cannot be compatible with art 10
unless it is justified by an overriding requirement in the public interest (see
Goodwin v UK (1996) 1 BHRC 81 at para 39)’

51. These principles are reflected in section 10 of the Contempt of Court
Act 1981, which prevents a court from ordering a person to disclose
the source of information contain in a publication for which he is
responsible unless the court is satisfied that disclosure is necessary in
the interests of justice or national security or for the prevention of
disorder or crime. They are also reflected in a long line of domestic
authorities (see, for example, X Ltd v Morgan-Grampian (Publishers)
[1990] 2 All ER 1; Ashworth Hospital Authority v MGN Ltd (2002) 12
BHRC 443; Mersey Care NHS Trust v Ackroyd (No. 2) [2007] EWCA Civ
101) as well as the additional protections afforded to journalists;
sources in legislation such as PACE.

52. The decision to seize our client’s journalistic material constituted a
clear infringement of our client’s rights under Article 10(1). For the
reasons explained above, the infringement of that right was not ‘in
accordance with law’ for the purposes of Article 10(2). Nor did it
pursue a legitimate objective or represent a proportionate restriction
on our client’s right.

53. In addition, the fact that journalistic material may be seized for
examination without prior warning or explanation is likely to have a
seriously chilling effect on the ability and willingness of journalists to
travel to and from the United Kingdom.

54. For all these reasons, the coercive powers under Schedule 7 and their
application against our client violate Article 10.
Article 6

55. Article 6 ECHR protects the privilege against self-incrimination (see
for example Saunders v United Kingdom (1997) 23 EHRR 313; JB v
Switzerland [2001] Crim LR 748; Heaney and McGuinness v Ireland
(2001) 33 EHRR 264). The breadth of the principle is reflected in
O’Halloran and Francis v United Kingdom (2008) 46 EHRR 21:
‘in all cases to date in which ‘direct compulsion’ was applied to require an
actual or potential suspect to provide information which contributed, or
might have contributed, to his conviction, the Court has found a violation of
the applicant’s privilege against self-incrimination.’

56. Paragraph 5 of Schedule 7 provides that a person who is questioned
under paragraph 2 must giving the examining officer ‘any information
in his possession which the officer requests’. Failure to comply with
such a request is punishable by up to 51 weeks’ imprisonment.
Importantly, the Act contains no provision restricting (a) the scope of
permissible questioning or (b) the admissibility of statements or
evidence obtained through the exercise of those coercive powers.
Incriminating statements and evidence obtained through questioning
under Schedule 7 are therefore admissible, in principle, in a
subsequent criminal trial against the individual subjected to
compulsory questioning.

57. Our client was required to answer numerous questions and to divulge
the confidential passwords to his personal computers, telephone and
encrypted storage devices. The abrogation of our client’s privilege
against self-incrimination cannot be justified merely by reference to
any national security or public interest arguments: in Heaney and
McGuinness v Ireland the Strasbourg Court expressly held that security
and public order concerns ‘cannot justify a provision which
extinguishes the very essence of the applicants’ right to silence and
against self-incrimination guaranteed by Article 6(1)’. The use of the
compulsory powers of questioning against our client violated Article 6.

Action which the Defendant is requested to take

58. We ask that the Defendant agree that the detention, questioning and
seizure of our client’s confidential journalistic and other material was
unlawful, and consequently agree to return all property and
undertake to destroy all copies of materials retained, and confirm
that they have not been shared with any third parties.

59. Our client is also entitled to other relief, including damages for his
unlawful detention and other breaches of his fundamental rights.
Disclosure Sought under Pre-Action Protocol CPR 54

60. Please provide with your reply the following information requested in
line with the duty of candour, which applies equally under the preaction
protocol for judicial review to assist the court and in
furtherance of the overriding objective. (It is in any event information
to which our client is entitled under section 7 Data Protection Act
1998 and section 1 Freedom of Information Act 2000).
a. Please provide a full copy of our client’s records including:
o Tape and transcript of our client’s police interviews;
o The incident report, notebooks/pocket books of officers
involved;
o Any other records held by the police in relation to the incident
and our client;
o Any statements taken;
o Copies of all other documents, correspondence, internal
memos and emails in relation to our client;
o A print out of our client’s Police National Computer records.
b. Please confirm ho authorised the use of Schedule 7 powers
against our client and on what grounds?
c. Please confirm whether or not any UK government ministers,
or any third parties, such as US government ministers, were
consulted prior to the use of the power and, if so, whether
they approved of its use.
d. Please confirm whether any information obtained in the course
of our client’s detention has been passed onto third parties
including foreign state powers – if so, who, when, what and on
what legal basis?
e. Please confirm the number of times Schedule 7 has been used
to stop and seize journalistic material in the last 5 years, with
a breakdown by year.
f. Please explain why the use of Schedule 7 powers was
considered appropriate in relation to the seizure of journalistic
material in this case.

Concluding remarks

61. As is hopefully clear, our client has embarked upon this course of
action in order to prevent further harm being caused as a result of the
consequences of the decision to detain and question him. In relation
to the parts of his claim that do not require the involvement of a
Court (e.g. the return of his belongings and all related data) he would
be willing to consider ADR. However, other issues in the case are such
that judicial oversight is likely to be necessary. We seek the
Defendant’s views on mediation in your reply.

62. Should you have any queries please contact Gwendolen Morgan,
solicitor with conduct of the case in the Public Law and Human Rights
department on [ ].

63. We look forward to hearing from you by 12pm today, 20 August, in
relation to the undertakings requested and your substantive response
by close of business on 27 August 2013.

Yours faithfully
Bindmans LLP
Enc

Terrorism Act 2000

Schedule 7

28 July 2013

relativity

 In which hard labour is extracted from relatives and the borage fairy is finally spotted.  It was only a matter of time.




16 June 2013

both

There's no requirement for human concepts to map onto reality: so they don't, but they do. 

In this sense both atheism and theism are correct. It's like the double slit experiment with light which shows it to be both a particle and a wave. Like Schrödinger's cat paradox, where the cat is neither alive nor dead until someone looks and collapses the wave function.

The atheist and the theist are both creating their own reality by mapping their concepts onto it. It doesn't matter that neither might be the case, the consequences follow whatever you do, so you can make either position real. This makes all Gods true and none of them.

Like Sherlock said..."when you have eliminated the impossible, whatever remains, however improbable, must be the truth?"


EDIT: This conceptual world curiously matches our real world. Schrödinger said, of the emerging quantum physics 'I don't like it, and I'm sorry I had anything to do with it,' - despite being one of the clever clogs that helped develop the math describing it. It seemed to be nonsensical and still does. It's mirrored in that the physics that describe the macroscopic and the microscopic refuses to be unified, just as the world views that inhabit the mental worlds of the theist and atheist stubbornly refuse to reconcile. Something has to give as the tension stretches to breaking point. Both arenas need a wraparound to unite them otherwise the polarisation will destroy us, eventually.

Another EDIT:  So, anyway, I don't believe that the universe is a place where for the big stuff you use Newton's laws and for the small stuff you use Quantummy equations (though we do). We are all made of the funny stuff and can be all over the place at the same time, just not so you'd notice. If you twang a string hard and fast enough it looks like it's in two places at once, but the frequency is so fast you only see it existing at two points in the oscillation, because that's all we're capable of seeing. To unite the two worlds needs some further insights into what time and space actually are. It's beginning to feel like we're standing in a forest going 'where the %^&* are all the trees?' Something that simple, like opening our eyes on a different perception.... after which you go 'how did I not see that?'

DOING THE IMPOSSIBLE

Bakewell Tarts


We're playing here on 29th June. Tral la.

14 June 2013

relativity

Einstein was right:  weight is relative to age.

the eightfold chiks

video
All eight eggs hatched out successfully.  Mum is busy teaching them how to forage.  I think that brings the total to 15 new chiks this year, so far.

raison de marvin

People say believe half of what you see
And none of what you hear.

I bet you wondered how I knew?

Well, I heard it through the grape vine.

finished

The new path is made from Kellet quarry tailings. It's the stuff the big contractors don't want: full of dust and fluff. So what's going to bind that path when a decent flood pours down it? Nothing really, and it's only a couple inches thick, if that. That is why I'm not optimistic about the job lasting. We'll see.

12 June 2013

gravelty

The pile is going down down down......










.....and almost reached clod's plot.


but there is still a lot to do...
....and what bright spark laid the water supply pipe 2" below the surface along the line of the path?

Oh....and please don't run over my compost bin which is parked legally.

in the greenhouse

Stuff....growing....in a greenhouse.  Always good, that.

11 June 2013

the path of least resistance

In the long wet winters, the allotment paths turn into a quagmire of mud 1/2 way up yer wellies.

Every morning you have to squelch through it to get down to feed the chikkins.  It's like being at Glastonbury in a bad year without the music. Sometimes your arse gets intimately aquainted with the mud.

When the fiftieth person had gone over, teh committee eventually decided to fix it by laying some paths.  That was a looooong time ago, before the flood of Noah.  However, work did start this week: the first order of business, obviously, was to dump all the hardcore at the allotment gate so no one could get in.




The next thing is to scrape a bit off the top...about the thickness of a turf.










After that you roll out a bit of weed-proof Axminster and bung an inch of hardcore on top and Bob the builder's yer uncle.

Does anyone think that'll be enough? I haz me doubts...

clodhoppering

It's been a long time coming this year but, at long last, clodhoppers is beginning to look like it might actually be productive.  Most of the crops are in.  There's some work to do fettling the greenhouse....but it can wait until I get a round tuit.

10 June 2013

terwitt terwoo

Then again.....if this was the kind of owl in the beautiful pea-green boat, my advice would be to leg it, no matter what size stoat you were or what variety of martial arts training you'd had.

It's a grey owl in the Kielder forest.

Sixnets

 Awww.

Cygnet Ring

video
Unusual to get this close without mum or dad showing the least sign of being at all bothered.  I must look like a pushover or a gentle soul.

The Owl and the Pussycat

The Owl and the Pussycat went to sea
In a beautiful pea-green boat
They took some honey and plenty of money
But their biggest mistake was the Stoat

28 February 2013

What Pryce Justice?

It's too easy to join in the tsk-tsking and dismissal of the first set of jurors in the Vicky Pryce case as a bunch of incompetent nitwits incapable of understanding basic judicial guidance.  But is that really the case or is there more to it under the bonnet?  So I looked at the questions that the jurors put to the judge, here they are:

Q1. You have defined the defence of marital coercion on page 5 of the jury bundle and also explained what does not fall within the definition by way of examples. Please expand on the definition, provide examples of what may fall within the defence, specifically ‘will was overborne’ and does the defence require violence or physical threat?

Answer: “The pressure applied by the husband need not involve violence or physical threats. The law requires that a husband was present and coercion was to such an extent that she was impelled to commit an offence because she truly believed she had no real choice but to do so.”

Q2. In the scenario that the defendant may be guilty but there may not be enough evidence provided by the prosecution at the material time when she signed the notice of intent to prosecute to feel sure beyond reasonable doubt, what should the verdict be, not guilty or unable or not safe to bring a verdict?

Answer: “Turning to page three of my written directions, the direction is combining the burden and standard of proof with the need for a majority verdict. If, having carefully considered all of the evidence, at least 10 of you feel sure of the guilt of the defendant then it would be your duty to return a verdict of guilty. On the other hand, if after careful consideration at least 10 of you were feeling less than sure of guilt, then it would be your duty to return a verdict of not guilty. And so it follows that if at least 10 of you are not sure, the appropriate verdict is one of not guilty.”

Q3. If there is debatable evidence supporting the prosecution case can inferences be drawn to arrive at a verdict? If so can inferences/speculation be drawn on the full evidence or only where you have directed us to do so?

Answer: “The drawing of an inference is a permissible process. Speculation is not. In this case the evidence on which the prosecution relies is largely undisputed, and where you are willing to draw inferences from that is entirely a matter for you.”

Q4. Can you define what is reasonable doubt?

Answer: “The prosecution must make you feel sure beyond reasonable doubt. A reasonable doubt is a doubt that is reasonable. These are ordinary English words that the law does not allow me to help you with, beyond the written directions [he had already given them]“.

Q5. Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it?

Answer: “The answer to that question is a firm no. That is because it would be completely contrary to the directions I have given you.”

Q6. Can we infer anything from the fact that the defence didn’t bring witnesses from the time of the offence, such as the au pair or neighbours?

Answer: “You must not, as I have now emphasised many times, speculate on what witnesses who have not been called might have said or draw inferences from their absence. Her evidence is that no one else, other than Mr Huhne, was present when she signed the form.”

Q7. Does the defendant have an obligation to present a defence?

Answer: “There is no burden on the defendant to prove her innocence and there is no burden on her to prove anything at all. The defendant does not have an obligation to present a defence, in this case the defendant has given evidence and it is for you to judge the evidence from her in the same way you would any other witness.”

Q8. Can we speculate about the events at the time Miss Pryce sent the form or what was in her mind when she sent the form?

Answer: “The answer to that is an equally firm no. The position in a criminal is that no one must speculate. There is a difference between speculation, which is not permitted, and inference, which is the drawing of common-sense conclusions from the facts of which you are also sure. Speculation is guesswork. That is not the same as inference at all.”

Q9. The jury is considering the facts provided but is continuing to ask the questions raised by the police. Given that the case has come to court without answers to these questions please advise on which facts in the bundle the jury should count on to determine a not guilty or guilty verdict.

Answer: “You must decide the case on the evidence [put before the court]. It is for you to decide which you consider to be important, truthful and reliable then decide what common-sense conclusions you can safely draw. It is not for me to tell you which piece or pieces of evidence are important and which are not. That is a matter for you to decide.”

Q10. ”Would religious conviction be a good enough reason for a wife feeling she had no choice i.e. she promised to obey her husband in her wedding vows, he ordered her to do something and she felt she had to obey?

Answer: “This is not, with respect, a question about this case at all. Vicky Pryce does not say that any such reason formed any part of her decision to do what she did. Answering this question will not help you in any way whatsoever to reach a true verdict in this case. I must direct you firmly to focus on the real issues in this case.”

Mr Justice Sweeney went on: “I want to repeat the absolutely vital importance of your following my directions of law to the letter and the fact that it is an equally important part of each of your individual duties to ensure that all of you do follow my directions of law to the letter.

“Without doing so, you are simply not in a position to reach a true verdict according to the evidence one way or the other.

“It is essential that each of you ensure that my directions of law are faithfully applied by all of you. If, for whatever reason, any one or more of you feel you do not understand my directions, then it would be wholly wrong to reach a verdict one way or the other.

Well, do those seem entirely 'unreasonable' questions to you? Some, possibly.  But really...what does 'reasonable doubt' actually mean?  Without corroborating evidence from witnesses, how can the prosecution possibly 'prove' that Vicky Pryce's testimony of marital coercion is false, unless they rule it out by defining marital coercion in such a way that discounts the abuse of power in relationship?  

What does marital coercion mean exactly? In the judges words: 

"A wife’s will would not have been overborne if, for example, she was persuaded by force of argument to choose (albeit reluctantly) to commit the offence rather than to take another course, or if she was persuaded (albeit reluctantly) to commit the offence out of love for, or loyalty to, her husband or family, or to avoid inconvenience (whether to herself or others). Her will must have been overborne in the sense that she was impelled to commit the offence because she truly believed that she had no real choice but to do so.

It is not, however, for the defendant to prove that Mr Huhne coerced her – rather it is for the prosecution to prove that he did not do so. The Prosecution may do that (as they seek to in this case) either by making you feel sure that Mr Huhne was not present when Ms Pryce committed the offence, or by making you feel sure that her will was not overborne (i.e. that she was not impelled to commit the offence because she truly believed that she had no real choice but to do so). 

Impelled? How impelled, argument, loyalty, emotional blackmail?  Certainly not, it seems, threat or violence?  No real choice?  What does that mean?

Sorry, but I don't think it fair for the media or the judiciary or whoever else to be blowing rasberries at that jury. There are legitimate questions to be asked about how jurors are given guidance, particularly when someones liberty and career are at stake.



   

30 January 2013

LLAW EHT FFO RORRIM RORRIM


So I started the online philosophy course being run by Edinburgh University.  It's good, but I just can't keep up with all the discussion forums that have sprung up.  I just don't have the time to read all that stuff, and, even if I did, there would be no time left for drinking thinking.

There are a lot of students trying to answer some basic questions the lecturer has thrown out to get things going.  Questions like: What is the meaning of life? What is philosophy? Is it important?

In a way it seems so self indulgent, so petty: the chances of YOU existing are beyond calculation. YOU have already won the biggest lottery in the universe, ever ever, ever.

Imagine you don't exist, (it's not easy if you try). There can be no time and space, no cause and effect, no ups and downs, no singing and dancing, no music, no children, no cold beer. You are just not there. History tells you that stuff already happened while you weren't' around, but so what? It will go on happening after you've gone. Sooooo what?

Philosophy is the universe experiencing you, experiencing life. If you were not in it, it would probably cry. Get your tummy tickled! Say thanks!

That isn't very philosophical really.  I'm just going to posit that philosophy is life looking at itself in a mirror and trying to see a clear enough reflection to understand itself....but, like a babies eyes, they can't focus properly, or the mirror is dirty, or something like that.

Or maybe life is just so so gobsmacked/excited/obsessed/astounded/infatuated by seeing it's own reflection at all, that, like some love struck teenager, it's gazing at itself with moony eyes and stinking the bathroom out with Lynx deodorant.

Anyways... in my previous post, the one where I quoted Russell saying... "when you think, you think of something.... therefore both thought and language require objects outside themselves."  Well, that might be problematic in the sense that you immediately create the duality by looking in the mirror and you see something... but it isn't real, it's a reflection...nevertheless, it's very compelling and very easy to get infatuated with it.  I'm really talking about the process involved in creating the idea of 'self' in consciousness and then seperating that out as something special, as something that, when its attention is directed towards itself...something funny happens. It starts to think that it has a core of identity that transcends the nuts and bolts of normal, everyday, bog standard conscious experiencing.  It also thinks that that core can somehow survive itself or that some sort of powerful external agency can grant that continuation.  It's too painful to think that the beautiful, if somewhat smelly, teenager can no longer BE somehow.

The other aspect to think about is: What consolidates this process of the creation of identity?  Is it memory?  Is that the factor?  If that's not it, what is the nature of the vessel that contains this 'I' notion? Does this reduce metaphysics to the explanation of experiencing?

Questions for another day.

09 January 2013

Monist Minnie


I never realised quite how many philosophers were monists of one sort or another.  The list would include Zeno, Parmenides, Plato, Plotinus, Spinoza, Berkeley and, if you count panpsychists, you've got to add in Leibniz, William James and now, it seems, Galen Strawson as well, and a host of others I've missed out.

Whatever nuanced flavour of monist they are, the thing that unites them is that they all think that the universe is just one kind of stuff, or, if you like, one kind of consciousness. It's very similar to the common religious notion that spirituality stems from one source but has many different expressions. In fact, I have a theory that Parmenides bunked off to India via Halifax and re-surfaced as Siddhārtha Gautama Buddha. The timing fits.

Of course, Buddha taught that this world is illusion, and today science is confirming it.  Things are not what they seem to be.  The commonality of experience, of thought, of toe-stubbing,is deluding us all the time.

Still, what does it mean?  Bertrand Russell, who started off in the idealist tradition in philosophy which essentially viewed the mental world as in some way more fundamental, more basic, that the material, physical world, later moved to reject that idea and came to the view that the material world really does exist independently from us i.e. it isn't just the way we perceive the world that makes it what it seems to be.  He identified a problem with the monist viewpoint and put it like thusly...

"When you think, you think of something; when you use a name, it must be the name of something. Therefore both thought and language require objects outside themselves. And since you can think of a thing or speak of it at one time as well as another, whatever can be thought of or spoken of must exist at all times. Consequently there can be no change, since change consists in things coming into being or ceasing to be."

Well, I'm not sure about that: does it not it depend on exactly what you are meaning by 'change'? Also on what you mean by exist?  Because we can think about something does not mean that it actually exists, rather that it subsists and is dependent on the mental machinery that is doing the thinking about it. Anyway, Russells' antipathy to monism might have stemmed from his work on the logical foundations of mathematics, and the realisation that, if monism holds up, mathematics gets stonewalled at the number one..... because there isn't a number two!  There are no discrete things, numbers, sets, classes or whatever you want to call them.  All is one.  But distaste alone isn't going to make the problem go away: we can construct our ideas about mathematical relationships between discreet objects to a fantastic degree of logical coherence without any of it corresponding to anything 'real' at a more fundamental level - whatever that means.  Russell might be like Aesop's fox - jumping up many times, but failing to get to the luscious grapes hanging there, tantalisingly just out of reach and slinking off in disgust, tail between legs, muttering 'bet they're not ripe anyway.' Maybe.  But mathematics stuck on the number one isn't going to build an aeroplane, is it?

It's just common sense that things are seperate isn't it?  Well no.  Remember we're all stardust, and if the universe turns out to be one single entangled quantum field, then, as Gribbin would have it "Particles that were together in an interaction remain in some sense parts of a single system, which responds together to further interactions. Virtually everything we see and touch and feel is made up of collections of particles that have been involved in interactions with other particles right back through time, to the Big Bang… Indeed, the particles that make up my body once jostled in close proximity and interacted with the particles that now make up your body. We are as much parts of a single system as the two photons flying out of the heart of the Aspect experiment." Eughhhh!  But Nadeau and Kafatos agree....“If non-locality is a property of the entire universe, then we must also conclude that an undivided wholeness exists on the most basic and primary level in all aspects of physical reality.”

As to panpsychism, Galen Strawson holds to the view that there is an experiential conscious aspect to what exists because of the very fact that experience DOES exist.  In other words, that consciousness is somehow basic and fundamental to reality but we have the idea that it is an emergent property of complexity instead because anything else seems barking mad.  In a way, his is an argument from incredulity which I cannot buy into.  He sais "how could experience arise just from putting wholly non experiential things together in a certain way or in a certain pattern......"why have we simply assumed that the physical is in its fundamental nature non experiential?  What's the evidence for that idea?  There is none."  He goes on to argue that it is just pure prejudice that we have assumed it to be otherwise and why not instead assume the opposite and sidestep the whole problem of explaining the emergence of consciousness from non-consciousness.

I can think of a few good reasons and I think he's over egging the problem of emergence and building that into the insurmountable problem it may turn out not to be.

I knicked Scot's photo for this post, but he's busy driving the Mars rover so might not notice.....:-))