A Tale of Two Cities

Manchester was bombed by the IRA on Saturday the 15^th June 1996.


Two-hundred and six people were injured.

Omagh was bombed by the real IRA on Saturday the 15^th August 1998.


There were twenty-nine deaths and over two-hundred and twenty people were reported injured.

The Omagh victims have just received compensation through the Civil courts (Breslin & Ors v McKenna & Ors (Omagh Bombing case) [2009] NIQB 50).

Will the victims of the Manchester bombing be able to find justice through the courts?

If not, why not?

(See earlier post, Gerry, meet Ioworth).

The Fingerprint Examiner's Fallacy

There's a chap called Simon A Cole who's been calling into question the forensic validity of fingerprints.

Here's a link to one of his many papers, "Is Fingerprint Identification Valid? Rhetorics of Reliability in Fingerprint Proponents' Discourse" from his, University of California, Irvine webpage.

Part of his argument is something he calls the fingerprint examiner's fallacy.

"The fingerprint examiner’s fallacy holds that the fundamental empirical
question concerning forensic fingerprint identification is not

How accurate are latent print examiners’ attributions of source?

but rather

Are all human friction ridge arrangements unique?"

At the heart of the fingerprint examiner's fallacy, therefore, is the elevation of uniqueness over accuracy.

Before going on, here are the compulsory links to Brandon Mayfield (erroneously linked to the Madrid train bombings of 2004 on the basis of fingerprint evidence) and Shirley McKie (accused of leaving her thumbprint at a murder scene). Both examples of cases where the fingerprint examiners got it spectacularly wrong: unfortunately I can't link to other cases where they got it spectacularly wrong until the people concerned prove their innocence.

However, it isn't only within the area of fingerprints that the fingerprint fallacy crops up.

In Dallagher, a ninety-four year old, deaf, arthritic woman was suffocated while she was in bed. It seemed clear that an intruder had broken into her house through a small transom window above her bed during the middle of the night: he had scrambled through the window and then suffocated the victim. The prosecution made the case that the intruder was the appellant. Ear prints were found on glass immediately below the transom window; the prints were examined by experts and compared to control prints provided by the appellant and others. The experts found that the ear prints from the scene matched those provided by the appellant who was subsequently convicted.

Later however, the conviction was found not to be safe and was overturned.

While another case, as reported by the BBC ('Ear print' burglar wins appeal), was overturned.

In this case the fingerprint examiner's fallacy was shown when "... specialist ear-print officer Cheryl McGowan told the jury that no two ears were the same [(uniqueness)] and she did not believe the ear could belong to anyone other than the defendant [(over accuracy)]."

Q. Err, Cheryl ... how accurate is your belief?
A. One-hundred Percent.
Q. Based on what?
A. ...

Anyway, here's a much subtler one from Job v Halifax [2009]. In brief, a chap has phantom withdrawals taken from his bank. He complains to the bank; they don't reimburse him; he takes his complaints to the court.

Anyway, during the proceedings Inglis J said,

"It is said that it is for the bank to show that the card did not have any flaws that would enable the key to be extracted from it; that a strong random number generator was used; that there were appropriate controls on key management; and that there were appropriate controls on the personalisation process. The only evidence is identified as being Mr Baker's assertion that there has never been a key compromise in the industry. The assertion is only a statement of the bank's ignorance."

That, "there has never been a key compromise in the industry" is the uniqueness part of the fingerprint examiner's fallacy. Again, this is presented in lieu of accuracy.

What are the accuracy rates? It is implied that they're one-hundred percent but where's the evidence? How was it measured? Is your measurement process valid? Etc.

Mr Justice Inglis's comments are quite interesting here, uniqueness in lieu of accuracy ... "a statement of ... ignorance."

---

As I read the Law Commission's consultation paper Expert Evidence in Criminal Trials I wonder whether or not their recommendations will end up getting rid of fingerprint evidence. I doubt it. They only mention fingerprints once in the report and that is with regard to something called judicial notice. This is where the judge says, "it's obvious to me the technique is valid, I'm not prepared to listen to any arguments otherwise, so the evidence can be admitted."

Gerry, meet Ioworth

News just in, "Four Real IRA leaders found liable for Omagh bombing."

The Guardian reports,

"Four leaders of the Real IRA have been found liable for the 1998 Omagh bombing in a landmark civil case brought by the families of those killed."

But will this mean that the IRA will be liable for the atrocities that they committed?

Ordinarily there is a time limit as to when you can bring about a claim for damages under trespass against the person.

Ioworth Hoare

But do you remember the Lotto Rapist case?

The affect of this case (A v Hoare) was to give some leeway to otherwise statute barred claims to make their way through the courts.

Lord Hoffman said, "In A v Hoare the defendant was convicted in 1989 of an attempted rape of the claimant, involving a serious and traumatic sexual assault. He was sentenced to life imprisonment. In 2004, while still serving his sentence, he won £7m on the national lottery. The claimant started proceedings for damages on 22 December 2004 but Master Eyre, applying Stubbings, struck out the action as barred under section 2 of the 1980 Act. This decision was affirmed by the judge and the Court of Appeal [2006] 1 WLR 2320. I would allow the claimant's appeal and remit the case to a judge of the Queen's Bench Division to decide whether the discretion under section 33 should be exercised in the claimant's favour."

So are we to expect a great number of claims through the courts?

That depends upon whether or not the victims of these terrorist attacks can provide evidence to present to the courts. Look again at the Guardian story, "[t]he Omagh civil action became the first case to be heard on both sides of the Irish border after gardaí – the police of the Irish Republic – were granted special permission to give evidence about the bomb plot and the Real IRA."

"Special Permission"?

That doesn't bode well. It looks as though all of the evidence for these terrorist offences will be under the control of the state through their ability to use Public Interest Immunity Certificates. The public interest being the maintenance of the Good Friday Agreement.

Compare - The Law and Subversion and Insurgency Suppression

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Update - bailii has published the case, Breslin & Ors v McKenna & Ors (Omagh Bombing case) [2009] NIQB 50.

Political Purpose

Is Common Purpose a political organisation?

It may or may not be: the question is whether or not it is a political organisation with respect to the law surrounding charities. Since Common Purpose is a charitable organisation, if it is found to have political objectives it cannot be registered as a charity in England and Wales.

According to guidance from the Charity Commission,

"... A ‘political purpose’ means any purpose directed at furthering the interests of any political party; or securing, or opposing, any change in the law or in the policy or decisions of central government or local authorities, whether in this country or abroad. This means that a political purpose cannot meet the public benefit requirement and so cannot be a charitable purpose. However, charities do have a great deal of freedom and flexibility to undertake political activities and campaigning as a way of carrying out their charitable aims."

Deciding whether or not a charity is political can sometimes be extremely difficult. In Southwood and Parsons v. Her Majesty's Attorney General [1998] EWHC Ch 297 Carnwath J said,

"13. To determine what is a political purpose, it is helpful to refer to the review of the earlier authorities by Slade J in McGovern -v- Attorney-General [1982] 1 Ch 321. The case concerned a trust set up by Amnesty International to administer those parts of its activities which were considered by its advisers to qualify as charitable. This view was rejected by the Court in relation to two of the stated purposes: the purpose of seeking release of prisoners of conscience, and the purpose of procuring the abolition of torture or inhuman or degrading treatment or punishment. These objects, however laudable, were held to be political in nature, because they involved seeking the alteration of current legislation or Government policy in the countries involved.

14. Slade J referred to statements of high authority that "political" purposes cannot be charitable (for example per Lord Parker in Bowman -v- Secular Society [1917] AC 406, 442). He summarised his conclusions as to the effect of the relevant authorities relating to trusts for political purposes :

"(1) Even if it otherwise appears to fall within the spirit and intendment of the preamble to the Statute of Elizabeth, a trust for political purposes falling within the spirit of Lord Parker's pronouncement in Bowman's case can never be regarded as being for the public benefit in the manner which the law regards as charitable. (2) Trusts for political purposes falling within the spirit of this pronouncement include, inter alia, trusts of which a direct and principal purpose is either (i) to further the interests of a particular political party; or (ii) to procure changes in the laws of this country; or (iii) to procure changes in the laws of a foreign country; or (iv) to procure a reversal of government policy or of particular decisions of governmental authorities in this country; or (v) to procure a reversal of government policy or of particular decisions of governmental authorities in a foreign country.

This categorisation is not intended to be an exhaustive one, but I think it will suffice for the purposes of this judgment; I would further emphasise that it is directed to trusts of which the purposes are political. As will appear later, the mere fact that trustees may be at liberty to employ political means in furthering the non-political purposes of a trust does to necessarily render it non-charitable""

The case is worth reading in full. It explores the boundary between education and politics, particularly,

"... in re Koepplers Will Trust [1986] Ch 423. ... a project, known as Wilton Park, under which name were promoted conferences for politicians, academics, civil servants and others, relating to political, economic and social issues of common interest, with a view to promoting co-operation in Europe and the West in general. It was held in the Court of Appeal that the project was sufficiently well defined to be the subject of a valid charitable gift, and that the objects were charitable in nature. In particular, the project was held to be educational in nature notwithstanding the "political flavour" of some of the matters discussed."

This would give Common Purpose room to argue that they are not a political organisation.

Common Purpose, however, argue that one of their charitable objectives is education. I suspect that this would be where their weakness lies.

Of course, if all you do is whine and bleat to Suzi Leather rather than going to the courts, forever a charity they will remain.

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Southwood & Anor v Attorney General [2000] EWCA Civ 204 was an appeal and is included here for completeness.

Ricin?

Stereoview of ricin -
data source 2aai, here.

The Daily Mail report, "Police smash white supremacist terror plot to poison ethnic minorities with ricin."

"Police have smashed a global terror plot by white supremacists aimed at poisoning ethnic minorities with the deadly poison ricin.

They discovered the lethal toxin in a sealed jam jar after a six month investigation ended with dawn raids on two properties in County Durham.

Two men were arrested under the Terrorism Act 2000 and were yesterday being quizzed by officers over their involvement in a worldwide plot."

The question this report raises is ... how would they know to test for ricin?

Consider this tale from a couple of months back, "Cannabis Mimic where a synthetic cannabis mimic was found in herbal incense.

Reading the story closely one realises that the compound was only discovered by chance. Going back to the original story from the Royal Society of Chemistry, "Synthetic cannabis mimic found in herbal incense," we have -

"several laboratories tried unsuccessfully to deduce what ingredient was responsible for the high, with one expert suggesting it was simply a placebo effect. But in December, THC Pharm, a Frankfurt, Germany-based company that makes medicines from cannabis, was able to detect JWH-018 in several packets of Spice.

Christian Steup, a medical doctor and pharmacist in charge of quality control at THC Pharm who supervised the analysis, told Chemistry World that he was able to detect JWH-018 while bigger labs failed because he had synthesised the substance about two years ago and all information was still on the company computer."

In other words, you have to know (or strongly suspect) what you're looking for in order to find it.

How did they know to look for ricin?

Taxing Proportions

Philip Absolon
(Executive Job Club)

The BBC have released an interesting story, "Recession shrinks UK top tax take," in which it explains how the forty percent tax take is expected to diminish as the recession grinds on.

It explains that,

"HMRC statistics show that the tax authorities expect the number of higher rate payers to shrink from 3.89 million in 2007-08 to 2.9 million in 2009-10.

The amount of income tax they pay is also predicted to shrink by £15.9bn in that time, from £91bn to £75.1bn. "

The story however, doesn't discriminate between public vs private tax payers. Consequently, we can't tell what proportion of this tax revenue is wealth generation and what proportion is dissipation.

Bear in mind that we must have a private sector in order to sustain the public sector. If we have no private sector tax take then the public sector can only be financed by borrowing. So, without the proportions of public sector to private sector tax revenue data, it isn't possible to judge how quickly we are hurtling into debt, and hence sovereign bankruptcy.

Will Smith be Savaged?

"Home Secretary Jacqui Smith will fight defamation proceedings launched against her by a US "shock jock" barred from entering the UK, the Home Office said today."

Reports The Independent in, "Smith fights defamation claim."

It started with a speech to Parliament in October 2008 where Smith announced an exclusions review.

"The Secretary of State for the Home Department (Jacqui Smith): My right hon. Friend Prime Minister made a commitment in the National Security Strategy statement of 19 March 2008, Official Report, column 929, to take “stronger action against those we suspect of stirring up tensions”. In the light of that, I have reviewed existing policy on the exclusion from the UK of those individuals who encourage violence or hatred in support of their ideology."

Mrs Smith explained that most of the necessary measures had been implemented and (only tangentially related to the main point but of interest) that the The Immigration (European Economic Area) Regulations 2006 (No. 1003) will be amended so that "I personally may exclude EEA nationals and their family members."

(The amendment can be found in "The Immigration (European Economic Area) (Amendment) Regulations 2009, specifically:

"Regulation 19 (exclusion and removal from the United Kingdom)

6. In regulation 19 —

(a) after paragraph (1) insert –

...

(1B) If the Secretary of State considers that the exclusion of an EEA national or the family member of an EEA national is justified on the grounds of public policy, public security or public health in accordance with regulation 21 the Secretary of State may make an order for the purpose of these Regulations prohibiting that person from entering the United Kingdom.”;".

On the 5th May 2009, related to all of the above, the Home Office issued the following press release.

Home Office name hate promoters excluded from the UK

"Individuals banned from the UK for stirring-up hatred have been named and shamed for the first time, the Home Secretary announced today.

The list covers people excluded from the United Kingdom for fostering extremism or hatred between October 2008 and March 2009.

It follows the Home Secretary’s introduction of new measures against such individuals last year, including creating a presumption in favour of exclusion in respect of all those who have engaged in spreading hate.

The Home Secretary Jacqui Smith also announced today that the government is now able to ban European nationals and their family members if they constitute a threat to public policy or public security.

In the period from 28 October 2008 to 31 March 2009 the Home Secretary excluded a total of 22 individuals from coming to the United Kingdom. It is not considered to be in the public interest to disclose the names of six of these individuals. The remaining 16 individuals are:

...

Michael Alan Weiner (also known as Michael Savage)

Controversial daily radio host. Considered to be engaging in unacceptable behaviour by seeking to provoke others to serious criminal acts and fostering hatred which might lead to inter-community violence."

The statement may well be defamatory but surely Mrs Smith has the defence of privilege?

In the schedules of the Defamation Act 1996 we have,

"Schedule I

...
Part II
Statements privileged subject to explanation or contradiction

9. — (1) A fair and accurate copy of or extract from a notice or other matter issued for the information of the public by or on behalf of—
...
(b) the government of any member State, or any authority performing governmental functions in any member State or part of a member State, or the European Commission;".

I'd be curious to find out what happens next. Based upon the information given so far and the analysis above, the case should be thrown out. I can appreciate that there may be some sort of argument but as to whether or not this lies in a defamation suit or simply an appeal against being banned, isn't clear? Anyway, as to whether or not the case does get thrown out, time will tell.

If this case does make some headway it will focus attention upon the credibility of the government and their criteria for banning people.

Another aspect of the Home Office's statement - who are the six individuals not named?