Court of Appeal (Hari's Division)
[Recent Entries][Archive][Friends][User Info]
Below are the 20 most recent journal entries recorded in the "Hari" journal:[<< Previous 20 entries]
|
07:22 pm
[Link] |
Consent and drunkenness
The UK has recently seen another high profile case [1] concerning the question of whether drunkenness can vitiate consent to sexual intercourse. In this the defendant was cleared within 45 minutes consideration by the jury.
Rape is the offence where sexual intercourse takes place without the consent of the complainant and where the defendant does not reasonably believes that the complainant has consented. In cases such as this, following the Sexual Offences Act 2003, there is the first question about whether the evidential presumptions that the complainant had not consented apply. "Consent" is defined by s74:
For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.
This is supported by evidential presumptions in s75 which state that in certain cases, the complainant is not to be taken to have consented unless the defendant can raise sufficient evidence to suggest otherwise.
75 Evidential presumptions about consent
(1)If in proceedings for an offence to which this section applies it is proved—
(a)that the defendant did the relevant act,
(b)that any of the circumstances specified in subsection (2) existed, and
(c)that the defendant knew that those circumstances existed,
the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(2)The circumstances are that—
...
(d)the complainant was asleep or otherwise unconscious at the time of the relevant act;
On the facts of this instant case, the defendant claimed that the complainant was an active participant in the act. Hence, based on that, there was nothing for the evidential assumption in s75(2) to be operative.
In terms of the operative law, the key question is for the purposes of s74 to what extent do drunk complaints have the freedom and capacity to make a free decision? This was considered by the Court of Appeal in 1997 [2]. In that case, it was found that there was no rule of law that drunkenness meant that there was no capacity to consent and again the defendant was acquitted. What the Court of Appeal did hold was that, depending on the circumstances of a specific case or rather the state of mind of those involved, it might be found that the capacity to consent did evaporate well before unconsciousness.
Hence, following Bree there were proposals to change the law so as to bring drunkenness as an evidential presumption against consent [3]. However, if such proposals were ever introduced, there might be a curious interplay of statute law and existing case law. The case of Kaitamaki v R [4] establishes the position that sexual intercourse is a continuing act - and hence consent has to be present throughout the duration. So if at some point drunkenness can result in a loss of capacity to consent but without loss of consciousness, the position from Bree would that a charge of rape could stand notwithstanding that the time that sexual intercourse started, there was the requisite capacity and consent.
Most of the evidential presumptions in s75 consider the state of the complainant at the time of the "relevant act". s77 states the "relevant act" for the purposes of rape is penetration. So any change in the law to make drunkenness a circumstance to vitiate the capacity to consent would need careful consideration. For example - is the defendant's knowledge of drunkenness enough or is it necessary for it to be shown that there was knowledge of a loss of capacity? In the latter circumstance, that is a formidable bar for the prosecution to prove. However, in the former, it is unclear what evidence the defendant could adduce to rebut the presumption other than the fact that at the time that sexual intercourse started, the complainant appeared to have capacity to consent [5].
The difficulties in framing a change in the law really touch on a point made by the Court of Appeal in Bree in that circumstances like this, the court is essentially ruling on a state of affairs known only to the individuals involved. The presence of alcohol raises the second aspect - that of sufficiency. Bree considered the unreported case of R v Dougal which was subject to heavy criticism as the pithy summary "drunken consent is still consent" was interpreted by some to mean that in any rape case where the complainant was drunk, there was no chance of a guilty verdict being founded.
The point is that in Dougal, Bree and in this instant case, the drunkenness was such that the complainant could not remember whether or not there was in fact consent. So the fundamental procedural question is that drunkenness may make it impossible to determine from the outset about whether or not there is any case to answer. A rule of law which excluded any such cases going to trial would be abhorrent, yet the same could be said of a rule which provided that all such cases should go to trial. This would go too far and would invite retrospectivity and post facto regret to cast their light on acts which at the time, and by virtue of alcohol, were merely misguided and not criminally culpable.
So if Parliament is to bring drunkenness into the evidential presumptions, they might do well to consider defendant anonymity. This should apply to investigations where the only possible basis for the charge is the presumption that because the complainant was drunk there was no capacity to consent.
[1] The Times, [X]* cleared of raping solicitor so drunk that she could not remember sex, 27th March 2009, < http://www.timesonline.co.uk/tol/news/uk/article5982638.ece >
* Having been cleared, I don't see any need for the defendant's name to actually be further mentioned.
[2] R v Bree [2007] EWCA Crim 804
[3] The Times, Men who rape drunk women face tougher law, 17th June 2007, < http://www.timesonline.co.uk/tol/news/uk/crime/article1942904.ece >
[4] Kaitamaki v R [1985] AC 147
[5] But to address this, the law might be framed such that as with s75(2)(a) and (b) the consideration is around capacity to consent at the first of a continuing set of sexual acts -
see s75(3).
Current Mood:  thoughtful
Current Music: Braid OST
|
|
09:55 pm
[Link] |
6 degrees of snottiness
It turns out that it is a small world. I was having lunch when one of the project managers joined me. After recommending the lamb tagine (which thankfully turned out to be good as I did so without any warranty or disclaimers), we got chatting about other places it was better to be.
It turns out that she worked with one of our competitors/partners. And it turns out that she had worked with a colleague in my previous business unit. And that they had a dispute about project costing where her company refused to pay us the full amount. Said dispute was one that I got dragged into and where I helped to write (and wrote) several emails and letters worth of snottiness to try to get our money. As for grudges, we were laughing about it today and wondering whether the correspondence was still around. And in retrospect, I probably think that on balance she was more right than we were!
Current Mood:  amused
|
|
10:01 pm
[Link] |
On relocations in general
So the long journey from Reading to London has began. Quite successfully too as addressing my Augean room has neither resulted in loss of blood nor required the Thames to be diverted. Which is just as well, as in a circumstance rather embarrassing for a contract professional, my expectation was for the lease in Reading to last for a further month turned out to be a false (but not unwelcome) dawn.
While detailed observations follow, it can be seen that a common thread is that I'm both a pack rat and someone who doesn't readily let go [1]. It's just as well that I'm not an ER doctor for I fear, I'd be defibrillating until my obscenity shouting self was dragged out of the morgue.
But anyway:
1) My move to Reading (two years ago!) might have been easier if I'd jettisoned all of the ingredients that in the end I brought with me. Most, if not all, of those ingredients were thrown out today untouched. This time, I am merciless. The only survivors will be the odd tin of fish, pasta and oyster sauce. And possibly a bottle of Thai fish saurce after I duly consult the authorities about whether it's still good after 4 years.
2) My handling of correspondence needs to improve. I found what I thought was my current cheque book, and so made a note to go to the bank for a new one. A couple of hours later, I found an unopened cheque book in an unopened envelope. In terms of the correspondence that was accumulated, I'll be more judicious in what I keep (and what I keep I shall file). So old bills and love notes/letters are gone. One exception is tax related matters, as no one expects a Fiscal inquisition.
3) I've bought way more DVDs, CDs, books and games since I moved into this current place. But with books in particular, I think I'm under read, so I'll make amends there. It shouldn't be too difficult as there'll be my brother's collection to browse (at least the English language ones).
4) It's still unresolved how I'm going to dismantle my desk, TV stand. And where and how am I going to back the suit of chainmail up. And perhaps more importantly, when am I going to repair the previous botched repair job (another repair like that and I'm doomed).
I will miss Reading. There have been ups and down, but overall, I think I've done more than tread water, and I've met, worked and taekwondoed with lots of cool people. But more importantly I won't be gone totally. There'll still be taekwondo training at least twice a week as the club is that fantastic.
But I'm excited about moving to London. If these last two years were essentially getting myself together and consolidating, I want this year to be about growth and experience.
[1] A case in point would be rather sorry hole-puncher that's on my desk looking plaintively at me. I remember it from Belize in my youth. I'll be damned if it gets thrown away on my watch just because it doesn't punch holes.
Current Mood: wistful
Current Music: Pentangle - Cruel Sister
|
|
07:22 am
[Link] |
Memememememememe Thing
1. Tell you why I friended you.
2. Associate you with something - fandom, a song, a colour, a photo, etc.
3. Tell you something I like about you.
4. Tell you a memory I have of you.
5. Ask something I've always wanted to know about you.
6. Tell you my favorite user pic of yours.
7. In return, you must post this in your LJ.
Current Mood: working
|
|
12:19 pm
[Link] |
Dodging the bullets
As I've reasonably progressed my next essay (Consent, Tissue Donation, Organ Donation), there is sufficient time to jot down a number of notes:
1) The Register's Andrew Orlowski has been commendably iconoclastic about slaughtering the holy cows of the "freetard" movement. His latest piece [1] is an excellent write-up about how myopic, narrow-minded and masturbatory so-called "digital rights"/"computer rights"/"open rights" campaigners can be.
2) There has been controversy over a proposed Bill to amendment the Human Fertility and Embryology Act 1990 [2]. Among other things, the Bill proposes to authorise researchers to create embryos from human nuclei and denucleated animal eggs. The scientific justification is the shortage of unfertilised human eggs (arising because the donation process is on the wrong side of painful).
Leaving aside the ethical controversy (my views have been covered elsewhere - in essence what ought to be protected by the law is personhood not humanity per se, embryo research does not diminish the dignity of persons), the other controversy is whether Labour MPs should have a free vote on the provisions. A free vote would allow the MPs to vote as they like, rather than as directed by the party whips. It is expected to be announced that Gordon Brown will permit MPs to vote in accordance with their conscience.
Now voting for a position as opposed to merely abstaining leads to some questions about the worth of parliamentary democracy. I am not at all convinced that MPs should be entitled to positively vote on their conscience. MPs are elected to represent and to serve a constituency; I would be disappointed if my own MP sought to prioritise their religious views above mine and the views of the constituency.
3) An innovative technique to fight child pornography (CP) on the internet, or a technologically flawed abuse of process? Those are the questions being raised about an FBI "honey pot" to find those who view images of CP online [3]. What the FBI are doing is to publish a link to what purports to be CP on a known forum where such material is traded. In fact the link is to gibberish stored on a server monitored by and hosted on behalf of the FBI. From this, the FBI are able to obtain IP addresses of the viewer. The next step was obtaining an administrative subpoena to obtain the user associated with the IP address and a warrant to search the premises and computers.
While assessing the instant case properly is not possible without access to the case report (Note: the user was convicted and sentenced to 10 years in prison), the general points of principle can be discussed:
Should clicking on the link amount to an attempt to view/possess child pornography?
In principle, the answer has to be yes. If the viewer has believed that the link is to CP and intended to access it, then clicking on the link should amount to an attempt, notwithstanding the fact that the link did not lead to child pornography. While there has been a certain amount of angst about the fact that links can always be disguised as something else i.e. one could be "rick-rolled" into viewing CP [4], the outcome has to be one of fact and degree, always being mindful that the level of proof shown required is "beyond all reasonable doubt".
On that basis, a single click without more is unlikely to meet the burden to prove beyond all reasonable doubt that the link was clicked with the intent to access child pornography. However, where log files show repeated attempts at accessing the link in question, then it burden is more likely to be met. (The user in question above did access the links on two separate occasions.)
However, to minimise the "rick-rolling" possibility, the logging of visits should include references to the referring website, such that it could be determined if the link was accessed from the honey pot website or from a rick-roll.
Should clicking on the link be a basis for a wider search warrant?
As discussed above, the issue is one of fact and degree. One viewing ought not to be sufficient to show "probably cause", unless there was clear evidence that the user was not rick-rolled. However, if such evidence is present, it is difficult to understand why the fact of deliberate clicking of a link purporting to be CP should not give rise to a basis for suspecting that the user has been a viewer of CP.
Should clicking on the link be regarded as entrapment?
There is no rational basis for holding that presentation of a mere link amounts to pornography. Although there is a principle that law enforcement officers should not create crimes (for example by targeting a known paedophile with offers to supply CP), this scenario is a long way from creation of a crime. The user chooses to click on a link and so is damned for it. In all likelihood, a different link to CP would have been clicked on, so the FBI was doing no more than allowing the user to act in accordance with his desires. The case here can rightly be seen as analogous to cases (in England) involving "sting" operations such as deliberately leaving a van with valuable goods unlocked, or flagging down a taxi driver outside of his licensed area.
So in summary, there is unlikely to be anything legally problematic about offering "honey pot" links to CP, particularly where the "honey pot" is used to facilitate a wider investigation. The decision to imprison a suspect is for the jury to decide. Such a decision must consider whether it was been made out, beyond all reasonable doubt, that the user has been in possession of child pornography given what emerges from the wider investigation. Decisions on inchoate offences such as attempts should be accordingly left to the jury, but the judge ought to make directions that clearly distinguish between intent to click on the link and intent to access the material behind the link.
[1] Andrew Orlowski, The LSE's Freetard Fiasco, 21 March 2008 < http://www.theregister.co.uk/2008/03/21/lse_music_debate/ >
[2] BBC News, Pressure mounts over embryo bill, 22 March 2008 < http://news.bbc.co.uk/1/hi/uk_politics/7309445.stm >
[3] C|NET, FBI posts fake hyperlinks to snare child porn suspects, 20 March 2008 < http://www.news.com/8301-13578_3-9899151-38.html >
[4] Jacqui Cheng, From the Newsdesk
Rick Rolled to child porn = you're a pedophile, says FBI, 23 March 2008 < http://arstechnica.com/news.ars/post/20080323-rick-rolled-to-child-porn-youre-a-pedophile-says-fbi.html >
Current Mood: thoughtful
|
|
06:21 pm
[Link] |
Resolution #5
is one resolution that I think I am failing slightly...
But a quick update with random thoughts:
1) Working in London is metropolitan and fun. And the commute is sleepable.
2) Easter is great because of the multiplicity of rabbit related items on sale.
3) I can still write competent law essays. Shame that I wasn't able to avoid a small word-count penalty.
4) I have two months to write two more essays.
5) Nick Cave's new album (Dig!!! Lazarus Dig!!!) is very good lyrically and musically. So it is rated \o/
Current Mood:  sleepy
Current Music: Nick Cave - Dig!!! Lazarus Dig!!!
|
|
09:18 pm
[Link] |
More jurisprudentially challenged people...
Further examples of two fairly innocuous statements leading down into a flurry of needless effluent.
First, there's a statement from the UK Chair of the Business Software Alliance regarding the BSA's approach to starting actions for software infringement [1]. The quote in full:
“The BSA’s legal team will be looking into each case, and, if piracy is suspected, the businesses will have to provide evidence that they are operating legally. If they are not, further moves will be taken which could result in legal action.”
With the usual myopia that surrounds issue of law as reported in the IT media, only half of the quote is seized upon for frenzied criticism. Hence, the comments [2] consist of irrelevancies about presumption of innocence. This quite misses the point that a) presumption of innocence as a technical term is meaningless outside of the context of criminal law b) it quite misses the point of the second sentence.
If the BSA suspect you are a pirate, then unless you convince them, they will begin the legal action. Such measures might include applications to begin the process of legal discovery to obtain evidence so that they can discharge their burden to prove on the balance of probabilities that you are using unlicensed software. That’s a simple point, but simplicity and rationality are both crushed in the rush to be part of the peanut gallery.
Second, the Archbishop of Canterbury has got himself into a little bit of trouble by daring to promote a view which the counter-political-correctness guerrillas have been able to gleefully seize upon [3]. The gist of what the Archbishop appeared to be saying on the radio (hopefully there will be a transcript) was that it was unavoidable for some provision to be made for people to be able to choose to be subject to Sharia law in certain areas of their lives. Now whether he meant that by "unavoidable" is unclear. The BBC, rather unfortunately, starts the rerun of the radio transmission with the Archbishop saying the bare words "It seems unavoidable" without any context as to the question.
How the rabid crowds appear to have interpreted his remarks is that he would want nothing better for the stoning of adulterers to be brought back into the UK. As the Archbishop points out in his lecture which started this whole debate [4], there's not a good enough understanding by most people in the UK about the jurisprudence of Sharia. On that basis, it should be evident that criticising Sharia by reference to particular extremist interpretations is as intellectually justifiable criticism of Judeo-Christian principles by reference to less morally palatable acts by the British and American governments.
To the extent that the Archbishop dealt with the procedural implications, we have appallingly ignorant comments by politicians such as:
"To ask us to fundamentally change the rule of law and to adopt Sharia law, I think, is fundamentally wrong." [5]
"Dr Williams seems to be suggesting that there should be two systems of law, running alongside each other, almost parallel, and for people to be offered the choice of opting into one or the other...That is unacceptable." [6]
"There is a huge difference between respecting people's right to follow their own beliefs and allowing them to excuse themselves from the rule of law." [7]
"The archbishop should be standing up for our Judeo-Christian principles that underpin British criminal law that have been hard fought for." [8]
The simple truth is that subject to the complexities of "conflict of laws" jurisprudence, English law recognises that parties are free to choose the jurisprudence and jurisdiction under which their obligations to each other are held under [9]. Hence, through contract I can choose to have the contract subject to the interpretation of the laws of Switzerland. To the best of their ability, the courts of England will endeavour to do so (although a choice of law clause is normally accompanied by a clause for exclusive jurisdiction). Hence, subject to adequate definition, I can have a civil action or arbitration judged in England subject to the laws of Sharia. No problem - it is my choice AND the choice of the counterparty. Further, use of religious courts is not unknown in England - for example Jews have been able to choose to bring disputes before the Beth Din [10].
As is pointed out, the Beth Din does not have enforceability per se, therefore any actions (such as divorce) would need to be formalised through the English civil courts system. Where there might be a debate is whether the English courts should recognise judgments of the Beth Din or any Sharia court as binding. Hence there is room to argue the extent to which a judgment of religious courts should be binding on a party chooses to use such a procedure, rejects following an unfavourable ruling. From a point of parity of law, and reasoning, the rules about enforceability of foreign arbitration should be applied. From the standpoint of ensuring that people are not coerced into agreeing to religious arbitration, it would need to be considered as to what represents choice to adopt the religious proceedings. Again, the law of England has jurisprudence of undue influence and unconscionable bargains that can be relied upon and imported.
As the Archbishop has not implied stated that Muslims should be exempt from criminal law by pleading that they were acting in accordance with Sharia, statements bleating about the rule of law, is nothing more than "ignorant guff". Rule of law is a constitutional law construct, and it hence regulates the relationship between state and citizen (or on a historical basis, the monarch and his subjects). It should therefore have no basis in genuinely consensual decisions reached by two parties.
[1] The Register, Glaswegian piracy drive yields just 41 'possible' offenders, 7th February 2008, < http://www.channelregister.co.uk/2008/02/07/bsa_claims_glasgow_piracy_success/ >.
[2] < http://www.channelregister.co.uk/2008/02/07/bsa_claims_glasgow_piracy_success/comments/#c_150321 >.
[3] BBC News, Archbishop sparks Sharia Law row, 7th February 2008, < http://news.bbc.co.uk/1/hi/uk_politics/7233335.stm >.
[4] Dr R Williams, Islam in English Law Civil and Religious Law in England, 7th February 2008, < http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/07_02_08_islam.pdf > at pp1-2.
[5] Per Tony McNulty, above, n3.
[6] Per Baronness Warsi, above, n3.
[7] Per Trevor Philips, above, n3.
[8] Per Mark Pritchard, above, n3.
[9] A fact recognised as a lone cry in the wilderness by Ernest from South Carolina -> "So long as it is limited to contract law and the like, I fail to see how the idea differs from contract clauses requiring binding arbitration instead of a court trial to settle disputes." From BBC News "Have Your Say" - topic is available here < http://newsforums.bbc.co.uk/nol/thread.jspa?forumID=4246&edition=1&ttl=20080207230243 >
[10] BBC News, Religious courts already in use, 7th February 2008, < a href="http://news.bbc.co.uk/1/hi/uk/7233040.stm >
Current Mood: thoughtful
Current Music: Bach - Solo and Double Violin Concertos
|
|
08:40 pm
[Link] |
New Year's Resolutions
It's only the 3rd February, but it's probably a good idea to set these items down before the year gallops away:
1) Study hard and obtain good marks in the two Advanced Award modules of this year (Financial Services Law and Policy & Aspects of Medical Law).
2) Get round to be IACCM certified at work.
3) Write an essay "just for fun" on "virtual property" for the SCL competition.
4) Write about the limitation periods applicable in civil claims for rape.
5) Do a lot more non-fiction writing - update this blog more with topics of interest, and with substantial content at least twice a month.
6) Do a lot more fiction writing - complete at least one short story by mid-summer, and two more by the end of the year.
7) Acquire an electric cello and learn how to play it.
8) Continue to play the guitar. Learn at least one Bach Suite.
9) Restart learning A-Level Maths. Master A-Level calculus before the year is out.
10) Run at least one 10K race before the year is out.
11) Travel some more. At least Iceland before the year is out.
Edit: Forgot some important ones
12) Read more. At least one new novel a month, and one non-fiction every other month,
13) Keep my room/abode tidier.
14) Become more content with my lot.
That should be enough to keep me out of mischief...
Current Mood: thoughtful
Current Music: Nelly Furtado - Loose
|
|
10:07 pm
[Link] |
Could I pass 8th Grade Science?
Hell yeah!
Current Mood: thoughtful
Current Music: Bach - Solo and Double Violin Concertos
|
|
10:23 pm
[Link] |
The best named piece of legislation ever...
So the UK's Office of Public Sector Information (www.opsi.gov.uk) has a new section to the site where one can view legislation dating back to 1200. So I was browsing the site and have come across the most profound piece of legislation ever. Magna Carta is of no more importance than a statute covering butchers and bakers in light of:
A Charter Of 1337 (Chapter 0, 11 Edward III) at http://www.opsi.gov.uk/RevisedStatutes/Acts/aep/1337/caep_13370000_enm_1.
Current Mood: amused
Current Music: Bach - Cello Suite 6
|
|
06:47 pm
[Link] |
The missing Octoberness!
An update because the events of October since my last post require a post to do justice to them. And the event of October was visiting ![[info]](http://l-stat.livejournal.com/img/userinfo.gif) acciopants and holidaying in Canada. Calgary (10 nights):
The flight into Calgary was on 13th October. Expected ETA was to be around 1330 local time. The actual time of arrival was closer to 1800 local time. Several hours of delay at Gatwick were accrued at Gatwick while the aircraft's "technical problems" were being seen to. Given that getting to Gatwick on time required getting one of the very first trains from Reading I was not certainly not amused by the delay. However, everything went swimmingly after that, and I touched down safely in Calgary where I got collected from the airport by ![[info]](http://stat.livejournal.com/img/userinfo.gif) acciopants. Highlights included: 1) The Royal Tyrell Museum at Drumheller (with dinosaurs big and small), the Hoodoos and the Calgary Badlands. Unfortunately, a sizeable portion of the area around the Hoodoos was off-limits for conservation limits. This was a shame, as there was an exciting looking cave to explore. 2) Calgary - the Devonian Gardens, Calgary Zoo (which had lots of fuzzy wuzzy animals including a baby elephant and a very emo bear, a dinosaur park with great views of the city), Fort Calgary (where Mounties used to live), Calgary Tower (which was good practice for the CN Tower) and the Glen Bow museum (featuring what I only discovered later was a statue of tremendous pornographic merit). 3) Head-Smashed-In Buffalo Jump, which is probably the windiest place I have ever been to. At least I haven't been to any other place where despite being in coat, gloves and scarf, I have come back into the warmth with tears in my eyes and the breath knocked out of me. 4) The journey to Banff and Jasper for this was absolutely stunning and inspiring. So much so that I have a tremendous amount of photos of mountains and hills from various distances and angles. Much to the amusement of some who shall remain nameless. The trip also featured my only encounter with wild animals (excluding ninja squirrels) in Canada. There was a sighting of mountain goat and her kid on a lookout on the highway and then three mountain sheep decided to run out into the road not too far from us. Lake Louise and the Columbia Icefields were snowy, but still spectacular. Lake Louise was quite snowy at the time, but the lake was still impressively blue and also very still and mirror-like. The Columbia Icefields Centre was sadly shut for the season, but I made the most of the visit by walking someway towards the Athabasca lake. And that reminds me... the Athabasca Falls. So pretty! 5) Generally chilling with acciopants (and her friends) and discovering that Canada and England have conflicting views on pronunciation. Being gentlemanly and not wishing to pull rank on a lady, I refrained from laying down the smack than I am entitled to lay down as a representative of Her Britannic Majesty Queen Elizabeth II.
I also discovered that one can get Wii-arm (or more accurately Wii-body) even if one is moderately fit...
6) acciopants' cats! Sadly no way to smuggle them back to Britain or to fit substitute ones into my room.
Toronto (4 nights):
The flight into Toronto was great! I flew with WestJet and it was a really entertaining flight. Everything was relaxed (the cabin crew definitely had a sense of humour), and the service was marvellous. Highlights included: 1) Getting reasonable use of the Toronto City Pass. I went to the Royal Ontario Museum (no pornography there unfortunately, but they did have a marvellous whale skeleton made out of plastic chairs), Casa Loma (think Hearst Castle but on a smaller scale), the Hockey Hall of Fame (discovered that Thailand have a team and based on practice goal-keeping and shooting, there may be a career for me. I could at least help them on their 217-3 against record) and the CN Tower (tis tall! tis tall!). 2) The Niagara Falls trip. Although the area around the Falls wasn't quite what I was expecting (think heavy commercialisation, as opposed to the Rockies which are preserved), the Falls themselves are amazing. Sadly the Maiden of the Mist was not running (in fact it stopped running two days before I got to Toronto) but we got to go "Behind the Falls". I am not sure if my camera has forgiven me yet... 3) The general Fallness... so many pretty trees and so many pretty colours! 4) A city full of black (ninja) squirrels. WTFs related to Canada1) Who thought it a good idea to have 90 degree intersections with major highways protected only by a stop-sign. >_< 2) Sales tax added at the till and not shown on the shelf-price. Swindlers! 3) Not enough "eh?", eh? 4) Thai people get everywhere, even remote parts of Canada! One restaurant spotted in Banff, and there may have been one in Jasper. 5) South East Asian Meals in a Sub. I wasn't convinced enough to try one. O_o 6) Air Transat only offering vegetarian meals out of Canada... I am a meatatarian! Current Mood: content
Current Music: Panzer Dragoon OST
|
|
11:09 pm
[Link] |
On Falling Stars...
One thing about Gala Showings. There are apparently no adverts so a 1830 start means an 1830 start. So I missed the first few minutes of Stardust. And the free popcorn and drink. By the kindness of some strangers, I did manage to leave with a copy of the book, which will make good holiday (re-reading) along with American Gods.
The film was definitely worth seeing as a work in its own right - many laugh out loud moments. It was a little cheesy in places, but then the book is a romantic fairy-tale. The cinematograph was marvellous, and Michelle Pfeiffer as Lamia and Robert de Niro as Captain Shakespeare was marvellous. It's a shame that there was not enough of "Hawt" Lamia...
One thing that bugged me about the film was that it was not faithful to the book. While the screenwriter needs to have liberty to make changes in the adaptation, I think there's a difference between liberty and lobotomy. Abridging the book is fine in the interests of making the film flow. Inventing the ending and losing some major points in the story are not so fine. So below follows my list of woe...
Current Mood: calm
Current Music: Nick Cave - Lyre of Orpheus
|
|
08:35 pm
[Link] |
Discourses on Misunderstanding
Self Defence
Last Thursday, Jack Straw, the UK Justice Secretary announced that he would be undertaking a review of the law of self-defence [1]. Strangely enough, this proposition has come in for some criticism - on the grounds that the law is already of sufficient clarity in terms of the circumstances and the extent to which self-defence can be exerted [2]. The criticisms are unanswerable to the extent that they concern the context in which they were made. The law of England and Wales clearly states that force used has to be reasonable and can be used on a subjective basis. That said, Mr Straw's comments from his speech have been taken out of context.
How each of us reacts if we encounter a burglar or a street robber has to be a matter of individual discretion - and there's a critical line between responsibility and recklessness. I know from personal experience that you have all of a millisecond to make the judgement about whether to intervene. In such a situation, the law on self-defence works much better than most people think, but not as well as it could or should. The justice system must not only stand up, but be seen to be standing up for people if they do the right thing as good citizens. So I intend urgently to review the balance of the law to ensure that those who seek to protect themselves, their loved ones, their homes and other citizens, know that the law really is on their side - that we back those who do their duty.
As the emphasis above shows, and indeed the article points out, Mr Straw is directing his comments not just as personal self-defence, of one's and one's loved ones' life and limb, but also self-defence of others. It is in this last circumstance where a review to see whether the law is in balance would be most helpful. As Mr Straw has personally intervened on a number of occasions to apprehend criminals, it might be thought that the law in relation to the "self-defence" of others is perfectly clear. Yet, there are a number of potential ambiguities in relation to self-defence of third parties. What if one chances upon a fight between two people in the street? Would an inadvertent intervention on behalf of the aggressor lead to criminal sanction? What if the intervention is against a plain clothes officer attempting to make an arrest? The answer to those rhetorical questions is yes, as a result of rules under common law and under statute. If there is an intervention to not actually prevent a crime, then the intervener can be punished. An example of this is R v Fennell where a father punched a policeman who had arrested his son, apparently because he believed that the arrest was unlawful and that dangerously excessive force was being used. The courts rightly held that as the arrest was lawful, the father could was guilty of an assault of a policeman in the execution of his duty. Further, the authority is not in fact clear as to whether "self-defence" of others is available where strangers act. Fennell is a case where the defendant acted in defence of his son, while the earlier authority of R v Duffy [4] factually involved defence of a sister and the decision of the court turned on the common law of preventing a felony and to restore the peace. Such a ruling may not now be tenable with the abolition of the felony/misdemeanour distinction [5]. In any case, the view in Fennell that acting to aid a third party cannot be lawful where a crime has in fact not been committed is affirmed in statute under s3(1) Criminal Law Act 1967 which states: A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.It is evident that reasonable force can be used, but it is equally unequivocal that it can only be used if the circumstances are indeed true in fact. It would not be enough for an intervener to reasonably believe that those circumstances existed. Furthermore, s3(1) is reinforced by the Police and Criminal Evidence Act 1984. In brief, s24A holds that an ordinary citizen can assert a power of arrest if an "indictable offence" has been or is being committed, and only in a limited number of grave circumstances. So where Mr Straw acted in order to apprehend a suspected criminal, he would have been acting unlawfully if it had turned out that the offence which the criminal was later charged with turned about to be minor. Hence, there should be nothing controversial about a desire to review the law to assess whether there is adequate protection for potential citizen-heroes. Potential lacunae in the law do exist, and a welcome should be extended to a discussing if a defence should be afforded to persons who mistakenly but honestly or reasonably act in the aid of another or to prevent a crime. [1] See for example: BBC News, "Self-defence" law to be reviewed", Thursday 27th September, < http://news.bbc.co.uk/1/hi/uk_politics/7015502.stm > [2] Ibid. [3] [1971] QB 428. [4] [1967] 1 QB 63. [5] s1(2) Criminal Law Act 1967. Encryption and RIPA 2000Sometimes I think that I was born without the gene that makes me receptive to arguments by woolly-minded civil libertarians. Or alternatively that I have become a reactionary big-government goat. For whatever reason, I am unable to comprehend the hysteria attached by many particularly the technical community to alleged infringements of privacy. The latest topic for discussion is the coming into force of Part III of the Regulation of Investigatory Powers Act 2000 [1]. In short, Part III RIPA 2000 allows for a notice (a "Section 49 Notice") to be served on a person who is in possession of what law enforcement agencies believe to be encrypted data. The Section 49 Notice obliges that person to comply with the disclosure requirement indicated therein, including the provision of an passwords, data, algorithms or encryption keys (hereinafter all are referred to as “encryption keys”) needed to make the disclosure intelligible. If the Section 49 Notice is not complied with, the person may be liable for imprisonment for up to two years and/or a fine. The mischief addressed by RIPA is where an investigation by law enforcement is hampered because potentially useful information concerning that person or other persons cannot be accessed. The remedy provided by RIPA ought to be uncontroversial. If the evidence was a physical document, then a search warrant could be obtained. If that information is embodied within electronic media, then a search warrant could be evaded on a technicality, as the electronic media could be physically delivered, but the information within protected by encryption. The complaints against RIPA are made elsewhere [2], but I believe that a defence of RIPA can be mounted as follows: 1) It is in the interest of society that investigations of law enforcement agencies are not obstructed and that the measures imposed for law enforcement are activated on reasonable grounds, are proportionate to the crime sought to be investigated or prevented and subject oversight. Such principles are to be found at s49(2) and s49(3) RIPA. 2) Further, s50 only obliges the receiver of the notice to do the minimum of acts necessary to make an intelligible disclosure. So, only one necessary key needs to be disclosed, and there is not the case that law enforcement agencies can “hoover” up encryption keys unconnected to the investigation. 3) Defences in s53 allow a Defendant to plead that he was not in possession of the key for the duration of the Section 49 Notice, or that it was not practicable for him to make a disclosure in time and that he later did so. 4) The privilege of the individual not to self-incriminate himself is not prima facie prejudiced. Evidence gained can always be held by a judge to be inadmissible on the grounds that it would prejudice a fair trial [3]. Where the evidence concerns third parties, there is obviously no rationale for application of the privilege against self-incrimination. 5) In any event, s34 Criminal Justice and Public Order Act 1994, English Law has provided that inferences that appear proper can be drawn from a Defendant's failure to mention facts which he could have reasonably been expected to do so when questioned or charged. Failure of a receiver of a Section 49 Notice to disclose intelligible data when reasonably expected, can be treated as analogous to this. If the encrypted data could have exonerated the Defendant, why does he not come forward with this? So RIPA can be seen the existing jurisprudence of s34 extended in response to novel problems posed by the march of technology. 6) The rights of any individual Defendant under the privilege against self-incrimination cannot in a rational society be absolute. From a purely utilitarian perspective, if the net result of a trespass against the rights of an individual is a gain to society, then it is justified to act against a qualified right. Civil liberties are not absolute rights, and must be qualified to the extent of the incivility of a person seeking to assert them. While the slippery slope, and the famous words of Pastor Niemoller are often invoked when it comes to intervention of the state against the privacy of the individual, it must be recognised that the collective interest in law and order is an imperative against which individual freedoms need to be balanced. RIPA, as with any other law, has a theoretical effect on all citizens in England. That ignores the fact that in its practical application it will touch on an absolutely tiny majority of citizens. A potential for negative effects is no reason for not applying a law which addresses a mischief that could be of grave impact. [1] For example see Ken Fisher, UK can now data decryption on penalty of jail time, 1st October 2007 < http://arstechnica.com/news.ars/post/20071001-uk-can-now-demand-data-decryption-on-penalty-of-jail-time.html > and also Slashdot comments at < http://yro.slashdot.org/yro/07/10/02/1237215.shtml > [2] Ibid. [3] Under the general powers at s78 Police and Criminal Evidence Act 1984 or the jurisdiction of the Human Rights Act 1998 on the grounds that Article 6 of the European Convention on Human Rights has been breached.
Current Mood: thoughtful
Current Music: Muse - Absolution
|
|
11:09 pm
[Link] |
I wonder...
...if these carved heads (see http://news.bbc.co.uk/1/hi/england/7022091.stm) and the cryptic message have anything to do with the release of Stardust.
The film of which I am fortunate enough to be going to a gala showing on Thursday :D
Current Mood:  merry
Current Music: PJ Harvey - Is this Desire?
|
|
09:51 pm
[Link] |
The Daily Quail
For those unaccustomed to English papers, the Daily Mail is well known for ill-informed, misogynistic, homophobic, racist articles.
Therefore, this headline generator is magnificent and very close to the truth. Favourites so far:
WILL FEMINISM INFECT THE QUEEN WITH AIDS?
WILL TEENAGE SEX GIVE THE CONSERVATIVES CANCER?
WILL GAYS IMPREGNATE THE COUNTRYSIDE?
Current Mood: belligerent
Current Music: PJ Harvey - Is this Desire?
|
|
10:20 pm
[Link] |
Two legal quickies...
Just two quickies which will need to wait to the weekend for any further analysis:
1) First, the saga with Northern Rock continues with both more withdrawals, a collapse in the share price and a statement from the Treasury that all deposits will be guaranteed by the government [1]. Hopefully this will end the stupid*.
2) Second, Microsoft have lost their appeal against the European Commission's findings that they abused their dominant position [2]. The European Court of First Instance substantially upheld the Commission decision, save for the parts that concerned ongoing monitoring of compliance by an ongoing independent trustee. From my point of view, the findings concerning the "tying" of Windows Media Player will be interesting as that was the subject of a final year long essay. However, the judgment [3] runs to 248 pages so a detailed reading will need to wait until the weekend. An important question is the extent (if any) to which the CFI has interpreted existing anti-trust cases in light of the characteristics of the computer industry.
[1] BBC News, "Northern Rock deposits guaranteed", 17th September 2007, < http://news.bbc.co.uk/1/hi/business/6999615.stm >
[2] BBC News, "Microsoft loses anti-trust appeal", 17th September 2007, < http://news.bbc.co.uk/1/hi/business/6998272.stm >
[3] Case T-201/04 Microsoft v Commission
* There was reportedly almost a riot at the Reading branch at the weekend, and I am disappointed that I wasn't there.
Current Mood: happy
Current Music: Deep Cuts - The Knife
|
|
09:47 pm
[Link] |
Ignorance and the Internet aka Matters arising from the "Credit Crunch"
Occasionally, there are times when I believe that if Einstein was alive today, he would have lamented the fact that a lot of posters on the internet were "blessed" with a brain, when in fact a spinal cord would be enough. The latest affair to convince me of this is the furore concerning an English bank high street bank's (Northern Rock) approach to the Bank of England for a credit facility to be possibly drawn on. The Bank of England was exercising its powers as a "lender of last resort". This action has provoked an undue amount of hysteria [1] of Chicken Little proportions to the extent that there have been queues of people [2] outside Northern Rock branches seeking to withdraw or transfer all of their deposits with the hapless bank [3]. Such actions are an over-the-top reaction to the situation. The Bank of England having to step in as a "lender of last resort" is exceedingly rare, but the actions of the depositors defy any rational thoughts. The economic rationality for the decisions are covered in more detail here [4], but a potted summary is here: 1) Banks make money by taking in deposits and by loaning the money out to borrowers. The profit they make is the difference between the interest rate on savings and the interest rate on loans. 2) To be absolutely assured of making all commitments to the depositors, a bank would have to always keep enough money available in liquid assets to cover all the deposits. But given that deposits will be untouched for most of the time, doing so is inflexible and it restricts the economy as there is inadequate money for entrepreneurs. So over many, many decades, banks have been allowed (and rightly so) to retain only a fraction of deposits as liquid assets and to lend the rest. Provided that a bank has enough in illiquid assets to cover all of the deposits, the bank is solvent and the depositors are safe. 3) A bank is a business like any other and so needs enough liquid assets to fund its short term commitments. One source of cash is in short-term interbank loans, backed by collateral of illiquid assets. 4) However, with the current "Credit Crunch" banks have been fearful to lend to each other as they do not know whether the collateral offered has been prejudiced by the "Sub-Prime crisis". Hence, Northern Rock is in a position where it cannot guarantee that it has enough liquidity to meet the short-term cash commitments, and so it has asked the Bank of England to potentially provide it with a credit facility. So what is my problem with the role of the internet and the internet posters in connection with this? The fundamental problem is that the internet with the advent of the blogs, new comments has become a gigantic echo-chamber where ideas, right or wrong are bounced around and gather pace. Now that is not necessarily a problem if the right viewpoint cancels out the wrong viewpoint. However, bad news always outweighs good news. One of my colleagues at work reminded me of a Terry Pratchett aphorism - that a Lie travels around the world before Truth has got its boots on. And so it is in this case. Not only have there been utterly misinformed statements about Northern Rock and the operation of the financial system, but also the hysteria built up on the internet has led to and reinforced the view Northern Rock is in trouble. Without the internet, such mistaken ideas have less traction. Without "Web 2.0" and the "blogosphere", the wider fallout would have been a few letters to newspapers (generally the tackier ones and especially the Daily Mail). Instead we get Lemmings 2.0 throwing themselves over the point of rationality based on lies. The big lies include: 1) Northern Rock has caused itself problems by engaging in Sub-Prime lending. There was an almost triumphant citation of a page at Northern Rock's website [5] that said "We can now offer you and your clients a full range of sub-prime mortgage products from Niche Prime to Unlimited – a wide choice designed specifically to meet all of your needs". Unfortunately, that citation is proved to be misinformed as the bottom of the page makes it clear that Northern Rock only process the applications and that the legal agreement is between the borrower and a separate legal entity from Northern Rock. 2) By the Bank of England intervening as a lender of last resort, money deposited at Northern Rock is automatically doomed. This view is not even wrong. No money from the Bank of England has of yet used by Northern Rock. If the matter is considered further, the fact that the Bank of England has offered the credit facility indicates that the deposits are assured, for if Northern Rock were irrevocably headed over the precipice what would be the point of a temporary measure? The credit facility means that Northern Rock could meet its normal short term commitments. If considered even further, a rush of withdrawals is not in normal trading conditions. Therefore if anything, this "rush" could be causing more harm than good. I feel a little bit like an Iraqi Information Minister declaring that all is fine, that there is no problem, and that the infidel sub-prime mortgages shall be subdued. However, the Bank of England, the Chancellor of the Exchequer and the Financial Services Authority all take the same view. There was and is no danger to Northern Rock when in the mere fact that the credit facility has been made available. That situation may have changed now. And it is all because some deeply misinformed and irrational people on the internet thought to sound-off based on prejudice and ignorance. [1] See a selection of comments at BBC News "Have Your Say - Emergency Loan for Northern Rock. Are You Worried?" < http://newsforums.bbc.co.uk/nol/thread.jspa?threadID=7333&&&edition=1&ttl=20070915215121 > [2] I struggled not to attach any derogatory epithets to that description. [3] BBC News, "Rush on Northern Rock Continues", 15th September 2007, < http://news.bbc.co.uk/1/hi/business/6996136.stm > [4] Robert Peston, "Peston's Picks", < http://www.bbc.co.uk/blogs/thereporters/robertpeston/ > [5] Northern Rock, "Intermediaries: Specialist Lending Products", < http://www.northernrock.co.uk/intermediaries/specialist-lending/index.asp >
Current Music: Evanesence - The Open Door
|
07:58 pm
[Link] |
Obligatory Fandom
So Halo 3 is out soon and the trailers have been released. And they have all really impressed me. Games are rarely advertised in the mainstream, and if the advert usually consists of random footage with a cheesy voice-over and tagline. But Microsoft seem to be doing something different with XBox 360 video adverts. The Gears of War advert was borderline traditional advert and artistic advert, but I think the Halo 3 adverts set the threshold even higher.
Advert 1:
http://www.gamersyde.com/stream_4475_en.html
Advert 2
http://www.xbox.com/NR/rdonlyres/F0836B7F-B918-47CC-907...alo3Believe90sHi.asx
Making of Movie
http://www.xbox.com/NR/rdonlyres/CDC81EF7-0586-4DAF-A05...dHalo3MonumentHi.asx
The pressing question for me over the next few days is going to be: Halo 3 and XBox 360 Elite or Electric Cello... Halo 3 and XBox 360 Elite or Electric Cello. I have been raised this week, but said raise will not cover both, and there is good logic in waiting until pre/post Christmas time to hoover up XBox related goodies at the sales. Hmmmmm...
Current Mood:  anticipatory
Current Music: Crouching Tiger, Hidden Dragon OST
|
|
07:43 pm
[Link] |
The Green Man Festival
I'm back from the Green Man Festival, and I give it my hale and hearty approval. It was my first festival, so there's no other frame of reference to compare it to, but in absolute terms it was marvellous! Credits go to Kester for identifying this as a good festival to go to!
Being away in the Welsh hills meant that everything else here could be left behind; no thoughts about work needed to enter my mind (although I did get to be roving technical support for my father on Saturday!). The whole atmosphere was very chilled and relaxed, except when the musical-goodness demanded everyone to be happy. There were also a lot of families around, and it was amusing to see the children make the most of the shop selling giganto bubble-making devices, and roll down the slopes on the site on Friday. Why just Friday? Sadly rolling down the slopes would have produced mud-stains beyond the most powerful of detergents.
Having a lot of rain in August was slightly annoying. It caused Kester to complain of the vast volumes of mud, and me to complain of the dampness, dry weather was neither necessary not sufficient to enjoy the music. There were three places where music was to be played - the Main Stage, the Folkey-Dokey stage and the Green Man Cafe. Strangely enough, the first two stages were more inclined towards rock music, particularly towards the end of the evening and the final acts on Saturday and Sunday. It's definitely a festival to revisit - the Green Man Cafe was rather neglected in terms of viewing. The one thing that I would do again if I went is to be slightly more judicious in moving between acts. Sadly I didn't get to see Battles, due to watching Robert Plant, and all accounts suggest that they were amazing to see... next time :D
List time - bands/singers to definitely get
Rachel Undertank & the Winterset - lovely folk songs from Northumbria!
Euros Childs - very good set, and there was a song about a fridge
Tunng - these guys closed Friday on the Folkey-Dokey Stage. Wow!
Monkey Swallows the Universe - lots of original songs, beautifully song and played.
Lisa Knapp - gentle folk songs. She's got a great voice.
Clinic - lots of guitars and great vocals
Fridge - lots and lots of guitars, made into an original set.
Battles - Everyone went "Wow" about them, and that can only be a good thing.
9Bach - Welsh folk songs; beautiful although I wish I could understand the lyrics.
Misty's Big Adventure - they had a dancer with covered in blue gloves and sang about radioactive children.
Arbouretum - rockers from Baltimore. Hearing them and staying for My Brightest Diamond made Sunday afternoon.
My Brightest Diamond - described in the programme as Puccini meets PJ Harvey. Also the liveliest band there. Marvellous!
List time - bands/singers to possibly get
Pamela Wynn Shannon
Findlay Brown
Dead Meadow
Joanna Newsom (mixed feelings here - very talented, but I'm not sure if a whole album would keep me interested)
Vetiver (didn't actually see them, but what I heard from the tent sounded good!)
There's also a PS because I got two little wax paintings from a lovely store run by the Trow family. One of a horse, and one of bunnies watching the sunset :D
Current Mood: relaxed
|
|
12:10 am
[Link] |
From acorns
grow XOBX-HUEG oaks.
Consider:
1) Hari arrives at Reading West station at 0805 to catch the 0810 to Basingstoke.
2) Hari knows that there is an 0814 train to Newbury which takes a different line.
3) Hari is engrossed in his paper.
4) Hari gets on the first train to arrive at Platform 1, which arrives at 0815.
5) Just as the train slows for the the first station, Hari decides to put down his paper and nap :)
6) Before Hari closes his eyes, he looks out of the window - "Is that a new industrial estate"? :O
7) Hari looks at the indicator board for the train. Sees that it is going to Newbury >_<
8) Hari gets off the train, and sees from the timetable that there is a train back to Reading at 0832, arriving Reading West at 0839 :|
9) Hari knows that there is a train from Reading West to Basingstoke at 0842 :)
10) Hari sees that the live departure board. The 0832 to Reading West will depart at 0837 O_o
11) Hari gets into Reading West just in time to see the 0842 to Basingstoke depart from Platform 1 :(
12) Hari decides that he will get into Reading Central to late to catch the 0845 non-stop service to Basingstoke and will get the 0910 :|
13) Hari sees the 0845 to Basingstoke pass through Reading West at 0914 >_<
14) Hari sees the inbound 0910 leave Reading West for Reading at 0918 o_O
15) Hari gets on the 0910 at 0926 :|
16) Hari arrives in basingstoke at 0945 and has to pay £5 for the privilege of getting to work at 1000 :*(
Oh for a car!
---
Things to do tomorrow:
1) Pray that there is no rain at The Green Man Festival.
2) Check that everything needed to be in the new tent is in the tent.
3) Get food. Ramen, pasta, tuna, SPAM and BOOZE ! :D
4) Buy reading material - The Once and Future King?
5) Charge phone, PDA and camera.
6) Pray that there is no rain at The Green Man Festival.
7) Purchase ticket to Abergavenny to arrive at 1700.
8) Have fun!
Current Mood: amused
Current Music: Shakira - Oral Fixation (Vol 2)
|
[<< Previous 20 entries] |
