27 August 2009

Asymmetric Warfare 01

The Independent reports,

"Helicopter laser prankster condemned

"A woman who dazzled a police helicopter pilot by shining a laser beam into the cockpit "for a laugh" was condemned for her behaviour today.


Inspector Steve Cheeseman of the Surrey Police Air Operations Unit said: "Laser pens can be very powerful and to shine one into the cockpit of any aircraft during flight is extremely dangerous.

"It could easily blind or distract the pilot and puts everyone on board at risk.

Cost of police helicopter £ 4.3 million.

Cost of laser pen, estimated at £ 10.00.

What Are Technical Regulations?

After yesterday's wikileak, which explains that since sections 9 and 10 of the Video Recordings Act 1984 (and the Video Recordings (Labelling) Regulations 1985 - but no internet links available) are technical regulations, the Act and Regulations have not been ratified. Hence, it is ambiguous (to say the least) whether or not they can be used as a basis of prosecuting someone.

So, what are technical regulations? These ones are found in the directive 83/189/EEC at

Article 1(5) " "technical regulation", technical specifications, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing or use in a Member State or a major part thereof, except those laid down by local authorities;"

Going back to ss 9 and 10 of the Video Recordings Act 1984, we can see that the "classification certificate" part of the sections is the technical regulation, since (i) it is an "administrative provision" and (ii), it "is compulsory".

The gov letter goes on to refer to European case law (CIA Securities C-194/94) where the European Court said,

"2. Articles 8 and 9 of Directive 83/189, ..., are to be interpreted as meaning that individuals may rely on them before the national court which must decline to apply a national technical regulation which has not been notified in accordance with the directive."

This could be quite worrying. What would happen if someone gets drunk, tries to drive home and gets stopped by the police. If the driver fails a breath test would this evidence be admissible in court if the technical specifications of the breathalyser had not been declared in accordance with directive 83/189?

This happened in Belgium (Lemmens C-226/97); however, this time the court ruled,

"Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations is to be interpreted as meaning that breach of the obligation imposed by Article 8 thereof to notify a technical regulation on breath-analysis apparatus does not have the effect of making it impossible for evidence obtained by means of such apparatus, authorised in accordance with regulations which have not been notified, to be relied upon against an individual charged with driving while under the influence of alcohol."

Where that leaves us isn't clear.

It makes sense for the government minister to claim that the non-notification, with respect to the Act and Regulations, may not have any effect on past cases (contrary to what the tone of my previous note may have implied). However, there are going to be people up and down the land who may be going to lawyers to find out whether or not they can get some recompense.

Lastly, the letter expresses concern about offences relating to "industrially manufactured products which require a prior authorisation before they can be supplied or used."

As to speculating and finding oversights in this field ...

Update - 28th Jan 2010 "How often does Parliament enact unenforceable laws?"

"More difficult is the question raised in both Houses of Parliament of what now happens to those defendants who were prosecuted and convicted under the 1984 Act and who are out of time to appeal, or who did appeal and had their appeals dismissed. Since they were, as the Government and Parliament agree, convicted under a law that was in truth unenforceable [or, didn't even exist. How could it if it wasn't the law, which, it wasn't] (although the defendants could not have known that, any more than could the prosecution, until the Government discovered the unhappy facts last summer), should their convictions now be revoked as not being in accordance with law? "

26 August 2009

Yet More Hidden Laws

Here we go again. I've blogged before about what I've been calling hidden laws; that is, laws that don't really exist but people are prosecuted on the basis of them.

See, Hidden Laws for details.

The thing is, our law is based upon liberty: we can do whatever we want unless there is a law against it. This is fundamental to our system of law.

The problem comes when we want to know whether or not there is a law against whatever we want to do. In order to find out, we need to search what are called the sources of law. There are three sources of law: the Common Law, legislation from Parliament and legislation from the European Union. Common Law comes from what judges discover the law to be during court cases, and it is reported after the court case in question; we search these court cases in order to discover the law. Legislation is passed by Parliament (for constitutional reasons we regard statutes as though they were law) and we search the Statute books in order to find law from this source. Since a treaty (or number of treaties) has been signed with other States within Europe; legislation emanating from Europe has legal effect in Blighty; we search European legislation in order to ensure that we comply with this source of law.

Now the Guardian reports, "Error in 1984 halts prosecutions for sale of unclassified videos."

"An act of parliament passed in 1984 to police the DVD and video games classification system, which has led to thousands of prosecutions, was never enforceable because the government of the time did not inform the European Commission, it emerged last night."

Remember, we can do what we want unless there is a law against it. If the law wasn't enforceable was it a law? If it wasn't a law the State didn't have any power to prosecute nor impose any penalties on anyone who they may have found guilty.

It gets worse.

Anonymousprosecutor has posted a copy to the letter sent out to the CPS. (His comments about the issue are also worth reading).

This tantalisingly says,



3 mmm. "In particular, we are concerned that there may be issues of unenforceability of any offence relating to "

What is the particular offence that the letter is referring to?

Are there any other offences that haven't been discovered, as yet?

We are looking for failures of notification of Directive 83/189/EEC which provides,

"Article 2

1. The Commission and the standards institutions in List 1 annexed hereto shall be informed each year, not later than 31 January, of the standards programmes drawn up by the national institutions in List 2 annexed hereto. This information shall be brought up to date every quarter. The Commission may amend or supplement these lists on the basis of communications from the Member States.

And goes on to say,

"Article 2 ...

3. The Commission shall keep this information at the disposal of the Member States in a form in which the different programmes can be compared.


" Article 8

1. Member States shall immediately communicate to the Commission any draft technical regulation, except where such technical regulation merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice ; they shall also let the Commission have a brief statement of the grounds which make the enactment of such a technical regulation necessary, where these are not already made clear in the draft.

The Commission shall immediately notify the other Member States of any draft it has received ; it may also refer this draft to the Committee for its opinion.

Time to scrutinise the list. See if the newspapers can get there before the bloggers.


The Anonymous Prosecutor tells us that the letter is on wiki leaks.

24 August 2009

A-Levels Worse Than Useless

The A-level results came out last week and generated headlines such as, "A-level results: another great leap forward." In the article Ceri Edwards explains,

"Record A-level results! Another year group of teenagers becomes inexorably brighter! Soon they will be building their own space shuttles, ending poverty and cracking world peace, all in three modules!

I don’t mean to be dismissive of any individual’s success, but it is hard to react with anything other than cynicism to a system which gives over a quarter of A-level papers an A grade, with overall pass rates rising for a 27th consecutive year.

According to the BBC broadcast journalist, Tim Hartford, there is a

"1 in 100 million chance of 27 consecutive years of improvement if teaching and examination standards were varying by chance."

This can be found on the Radio 4 programme, "More or Less, 21.08.2009. There is a listen again facility but this only lasts for seven days - the A-level results section starts just after 20 minutes.

Hartford finds further authority for explaining why this A-level rise isn't just by chance: he talks to Prof Gordon Stanley. Stanley explains that across all of the A-level subjects there is the same rate of increase of exam results year on year (ca 1 - 2 %). But this isn't seen in other education systems at which he looked (Australia and Scotland); he concludes that the increase in results is a function of the standard setting system. Although not directly referenced in the programme, it appears that the paper, Stanley 2008, is being discussed.

Hartford goes on to explain about the switch, in 1987, from normative assessment to criteria assessment. In normative assessment the results from the exam in question for the whole year was collated. The data was analysed such that a grade could be found where 10 % of pupils out of the cohort got a grade A. So, if one year 10 % of the pupils achieved 70 marks (or above) out of a hundred then the grade A mark for that year was 70 marks; if 10 % of pupils achieved 98 marks or above out of a hundred then the grade A cut off for that year was 98 out of 100. Under a normative system; if you got a grade A you were part of the top 10 % of the country for that year. This is in contrast to a criteria assessed system. In this system criteria are set before hand; eg, you need to get 80 marks out of 100 in order to get a grade A. The latter is the system that we are under now.

There is a lot more to the normative vs criteria assessment argument. The broadcast journalist said that in the normative system the A grade was always 10 % of the highest performing cohort: this wasn't true. Every year a committee would sit and fiddle with the figures. It was a numerous clausus mechanism that ensured sufficient numbers of private school pupils got a place at University. While the criticism of the criteria assessed system depends upon an objective measure of what is an A grade? Who's to say? How is it justified? How is it maintained? In fact, all of the criticisms that we are hearing now.

Returning to the Hartford broadcast, it was explained that in maths pre 1987 10 % of students got an A grade but now, the number who get an A grade is 45.2 %. Hartford then invites Prof Timms to discuss some of his work. From 1988, Timms explained that every year he has tested the underlying abilities of A-level students and has compared this ability to the pupils's A-level grade. He found that a comparison of the students over time who had the same underlying aptitudes, had A-level grades that had been rising over time. The grade drift in maths was found to be about one grade per decade with a three grade drift from 1988 to the present. Hartford got a maths E grade in 1992; Timms concurred that this would be the equivalent of a C/B grade now.

The A-levels are no longer A-levels. They have changed in everything but name from 1987 and the objective measure of the neu A-level is changing every year.

This brings us to the title of this post. A-levels are worse than useless because if anyone attempts to use them to discrimate between people of differing ages there is a very good chance that they would fall foul of the age discrimination regulations. Imagine if Hartford saw a job advertised that required a grade C in A-level mathematics; what would Hartford's lawyers make of that?

See, Age Discrimination and Exam Results for an explanation and links.


Stanley, G & Tognolini, J. (2008) Performance with respect to standards in public examinations. 34 September 2008.
† Although Hartford didn't explain how he got this figure, I think he is approximating two to the power of 27. He seems to be asking every year whether or not there will be an increase; if the answer is yes for twenty seven successive years the chances of that occurring are 1 in one hundred thirty-four million two hundred seventeen thousand seven hundred twenty-eight times.

23 August 2009

Update Hidden Laws 02

Back in January I blogged about Hidden Laws - people were prosecuted on the basis of laws that didn't exist. (Pathetic isn't it?).

This was updated in April: essentially, other cases started to come out of the woodwork.

Now we have the BBC giving us this headline

"Tobacco smugglers 'due payouts'"

explaining that, "[t]housands of tobacco smugglers could be due compensation because their assets were wrongly confiscated, customs officials have admitted.

More than £10m has been recovered from smugglers during the last four years.

But officials failed to notice a change in the law in 2001, which meant only the main players in smuggling scams should have had their assets seized.

18 August 2009

Stuck On You

Superpowerless by
Wolf Howard
One of the Stuckists, Charles Thomson, complains of Cronyism at the Tate.

He complains about the "appointment of "Bob and Roberta Smith" (aka Patrick Brill) and Wolfgang Tillmans as two new artist trustees" and explains that there is a potential conflict of interest. They are trustees and also artists who may want to sell/display their work at the gallery.

I'll leave Charles Thomson to it; since I want to focus on the Charity Commission.

Aren't they supposed to regulate this sort of thing?

According to their webpage they are ... So, why aren't they doing so?

This matters because the Charity Commission are also responsible for overseeing thousands of other charities and determine, for example, whether or not some schools are eligible for charitable status.

The problem is that if they can't sort out such obvious trangressions, are they fit to oversee the charitable status of any entity? I appreciate that this sounds a bit extreme but the last thing one would expect of an organisation overseeing the charitable status of a group of organisations is caprice.

The sooner the Charity Commission comes under some sort of scrutiny the better.

17 August 2009

Getting Away With It

The end of any further legal dealings about the Lockerbie disaster, that comes with the release of Megrahi, leaves one with the sense that someones got away with it.

The thought of the father of one of the victims of the the bombing

"... preparing to sue the Scottish prosecution service because he is convinced it deliberately blocked attempts to bring his daughter's "real" killers to court"

is incredible.



Update - Background context, Allegations of DEA drug smuggling in the 1990s.

12 August 2009


I remember attending a microfabrication course a while back where one of the slides was of a Gas Chromatography (GC) instrument. The thing that was special about it was its size, which was about the size of a ten pence piece. Its column was etched on silicon and it was used to analyse components in air. On the course we were told that the instrument was made (fabricated) in the 70s - so where are the commercial ones?

When I had a lab my GC was huge in comparison (ca 0.75 m x 0.75 m x 0.75 m); also, it needed gas bottles for hydrogen, helium and air. Having a hand held gc that didn't require stored gases and was as cheap and fast as TLC was very attractive.

A quick search through the literature came up with a paper from 2007 from the Journal of Microelectromechanical Systems called,

"A Low-Power Pressure- and Temperature-Programmable Micro Gas Chromatography Column."

The instrument that was reported in this paper (sorry but its closed source) and shown above was about the size of a dime (?, ten pence piece?) and could achieve the separations shown (also above).

This work is very impressive and the authors of the paper are quite right to say, "[o]verall ... this paper represents a significant stride toward ultralow-power and fast column operation and sets the stage for portable analysis instruments with better performance than their table top predecessors."

One curious irony ... the authors justify the work by talking about applications such as 'industrial control, food processing/monitoring'; all the usual sorts of things. However, they go on to say that the system would be useful for homeland security; further, one of their chromatograms (above) shows the performance of the instrument at separating explosive and chemical warfare agent simulants. The thing is ... this instrument will be extremely useful in the preparation of these sorts of compounds and designer drugs.

Law - Free Online Resources

Charon QC has got meat space entities to prepare some useful, free, online legal resourses.

The resources can be found on his Insite Law Magazine site as follows:-

I will update this space as Charon QC updates his site and perhaps migrate the pages to a side box on this blog when his content settles (tort, public law, etc are being promised).

ps - the resources are extremely useful. They are still work in progress with typos and broken links but these are trivial compared to the wealth of knowledge that's there for the taking.
pps - well done Charon QC.

11 August 2009

Convinced of Treachery

Chapman Pincher

The Mail reports,

"Chapman Pincher, who has devoted his life to exposing traitors, identifies the KGB agent he says was at the heart of British Intelligence."

The story gives a brief glimpse of treachery amongst Blighty's spooks: I say story, it's just an advertising piece for a forthcoming book, "TREACHERY by Chapman Pincher, published by Random House, New York."

The story explains that the author of the book, Pincher, was convinced that MI5 chief Sir Roger Hollis was a traitor.

No concrete evidence is cited: instead a string of coincidences, cock-ups and inaction. As to all of these circumstances, "[n]one of this, it must be said, cuts any ice with those who leap to Hollis's defence with as much vehemence as Pincher attacks him. Indeed, nothing has ever been proved against him.

Hollis didn't confess, as Fuchs and Blunt did. When a fellow MI5 officer, Peter Wright, confronted him with suspicions that he was a Soviet agent, Hollis, who was about to retire, denied the charge. 'All I can say is that I am not a spy,' he declared. But he would, wouldn't he?

Four years after his retirement, he was called back for two days of interrogation about the serious intelligence failures during his period of office.

He remained calm and unruffled throughout, and his interrogators, while finding that he had repeatedly avoided and even prevented action that could have been damaging to Soviet interests, could alight on nothing to substantiate treachery.

If not a green light, it was an amber one.

After reading this I can't help but wonder how many others were accused of treachery. How many, with suspicion in lieu of evidence were simply removed from their positions. But unlike Hollis, there wasn't anything they could do about it.

07 August 2009

Numerus Clausus, NEET?

Wikipedia gives an explanation (of sorts) of numerus clausus.

"Numerus clausus ("closed number" in Latin) is one of many methods used to limit the number of students who may study at a university."

Let's expand that definition to,

"Numerus clausus ("closed number" in Latin) is one of many methods used to distribute limited economic opportunity to a populuation."

In other words, if the economic system is rigged so that there are less jobs than there are applicants, a means of distributing these jobs is needed, lets call it numerus clausus. Bear in mind that the numerus clausus has to be something that we can all agree is fair, just and reasonable.

So, it is fair that those best suited to do the jobs will be the ones who get the jobs. But how are we going to decide who is best suited for a particular job?

Education is considered to be the best method as to how one decides who is best suited for a particular job. It is supposed to tell us who has a particular aptitude for a particular subject and who is (and hence isn't) prepared to work hard.

So, woebetide you if you don't have any education ...

This story, "150,000 dole kids ‘dead in 10 years'", in the Sun, describes how researchers tracked what happened to NEETS "the term for those not in education, employment or training."

The researchers found that,

"Up to 150,000 jobless kids will be dead within ten years, a shock report predicted yesterday. One in six drop-outs not in full-time work, training or education is at risk. A chilling study shows 15 per cent of idle kids aged between 16 and 24 die within a decade of leaving the system. They are more likely to be killed by drug and alcohol abuse, violent crime, ill health or suicide."

But let us look at whether or not we really need education to enter the jobs market. I don't think that we do.

Of course, I accept that there are many jobs that require an educated person in order to be able to do these jobs: in order to be able to be trained to do these jobs. But this isn't all jobs. However, as jobs are getting scarcer, in order to allocate jobs, employers are demanding of applicants unnecessary qualifications.

Sickenly, rather than drawing attention to short comings of this situation, the teaching profession profits from it. It elevates the importance of the teaching profession.

It is profoundly wrong that we are duped into thinking that we can turn our backs on these people because they are "drop outs."

04 August 2009

Validity of Your Assay?

"Drug charity director sues after he is wrongly targeted by sniffer dogs". The story explains that someone was using public transport in London - specifically he was trying to get out of a tube station - when a police sniffer dog indicated to its user that the person was carrying drugs. This resulted in the person being searched by the police. Nothing illegal was found and the person was allowed to go on his way.

According to s1(3) of the Police and Criminal Evidence Act 1984,

"[t]his section does not give a constable power to search a person or vehicle or anything in or on a vehicle unless he has reasonable grounds for suspecting that he will find stolen or prohibited articles"

So, was it reasonable to stop and search the person on the basis of the response from the sniffer dog?

"According to Release, sniffer dogs are an "unreliable and ineffective police method" and the charity is campaigning for more regulation of the practice.

Research carried out in Australia showed almost three quarters of people searched after dog alerts were found not to have drugs on them.

In other words, is it reasonable to be stopped on the basis of an assay that gives the wrong result more times than it gives the right result?

The newspaper article says,

"The claimants are asking the High Court to make a declaration that the operation was unlawful and that the use of the sniffer dog as a means of establishing reasonable grounds for a search in this case was unlawful."

The result (ratio) of this court case should give us an idea as to what the courts regard as being reasonably valid.