Friday, 20 April 2007

Sadistic' foster mother jailed

From BBC News:
“A woman who punished three children in her care by ramming sticks down their throats and making them eat their own vomit has been jailed for 14 years. Eunice Spry, 62, from Tewkesbury in Gloucestershire, was convicted at Bristol Crown Court last month, of 26 charges of abuse spanning 19 years. The prosecution said Spry's behaviour was "horrifying" and "sadistic". Spry had denied all the charges, which related to offences in Gloucestershire between 1986 and 2005. Spry, who was the legal parent of the three children, was arrested when police raided her home in February 2005.

She was found guilty of a range of charges from unlawful wounding, cruelty to a person under 16, assault occasioning actual bodily harm, perverting the course of justice and witness intimidation. Judge Simon Darwall-Smith told Spry that this was the worst case he had come across in 40 years in law. He told her: "Frankly, it's difficult for anyone to understand how any human being could have even contemplated what you did, let alone with the regularity and premeditation you employed."

Tuesday, 10 April 2007

A balancing act - conflicting human rights

This one has made the headlines big-time. The facts are straightforward: Natallie Evans, before undergoing treatment for cancer, underwent IVF treatment using sperm from her then partner, Mr Johnston. Six embryos were frozen, with both the couple’s permission with a view to later starting a family together. As a result of the cancer treatment, Evans was left infertile.

However, Evans and Johnston then split up. Essentially, Mr Johnston withdrew his consent for the embryos to be implanted. The Human Fertilisation and Embryology Act 1990 states that unless both parties consent to storage and use, the embryos must be destroyed. Further, there is a 5 year period of ‘contemplation’ after which a decision must be made as to what should be done with the embryos: implantation or destruction.

The UK is by no means the only E.U. country to allow embryos to be frozen while permitting both the potential mother and father to withdraw consent right up to implantation. However, there is no European consensus about the stage in IVF treatment when the sperm donor's consent becomes irrevocable. Indeed, this formed part of the reason as to why the European Court did not find in Evans' favour.

The two conflicting human rights here are obviously those of the potential parents and their interests are “entirely irreconcilable". By permitting Evans to have the embryos implanted, Johnston would be forced to become a father; if she was not, she would be denied the right to become a "genetic parent". Evans argued that her right to become a genetic parent and thus enjoy a family life - as entrenched in Article 8 of the European Convention on Human Rights - was violated by the Human Fertilisation and Embryology Act 1990.  Additionally, she argued that it also fell foul of discrimination law as the embryos' fate was being determined wholly by her former partner.  While sympathising with Ms Evans the European Court of Human Rights in Strasbourg rejected these arguments. As leading legal academic, Gary Slapper, points outs, “The law allows Natallie Evans’ partner to withdraw his consent. Plainly that is the end of the argument”.

On balance, forcing Johnston to father a child would constitute a human rights violation of greater gravity than that of refusing implantation of the embryos, even though this would prevent Evans from ever having a genetically related child. While Evans claimed greater "physical and emotional expenditure" during the IVF process, the judges refused to accept that this meant her human rights should take precedence over those of her ex-partner's. This is clearly a commonsense and logical verdict and one that has met with approval from the medical profession. While Evans will never become a genetic parent, her options for adoption or surrogacy remain intact. And of course, the overriding question still remains: why did Evans choose to have the created embryos frozen and not simply her eggs? Doing so would have allowed her complete and unfettered freedom with whom she had a child in the future. Sadly, against professional advice it seems, Natallie Evans truly did put all of her ‘eggs’ in one basket.

Saturday, 7 April 2007

British Super-geek loses extradition appeal – the truth is out there ….. somewhere

Gary McKinnon, the bumbling UK hacker, has lost his appeal against being extradited to the US to stand trial. McKinnon stands accused of hacking into dozens of US Army, Navy, Air Force, and Department of Defense computers during February 2001 and March 2002. It is also alleged that he infiltrated 16 NASA computers. He is reputed to have caused 700, 000 dollars worth of damage and modified and deleted files at a US Naval Air Station making around 300 computers inoperable. Crucially, the timing of McKinnon's hacking coincided with the furore and heightened sense of vulnerability in the aftermath of the 9/11 terrorist attacks.

The U.S alleges that his objective was to access classified information, and his motive, "intentional and calculated to influence and affect the US government by intimidation and coercion".

McKinnon, however, considers himself no havoc-wreaker – just a bumbling computer nerd. His main objective, he claims, was to access information he believed the U.S military and NASA had on UFOs. In short, he wanted to discover if there was, as he believed there to be, a UFO cover-up/conspiracy type thing (you get the idea) and expose it. So his efforts could justifiably be labelled as ‘humanitarian’ right? Well clearly the British court, or the U.S. military don’t think so.

McKinnon certainly believes the truth is out there – or rather IN there, there being the US military’s computer systems. He says, "I believe that there are spacecraft, or there have been craft, flying around that the public doesn't know about." McKinnon believes the US recovered an anti-gravity propulsion system from an alien spacecraft and reversed engineered it for their own use.

While lawyers acting for McKinnon argued that he may be sent to Guantanamo if extradited, US officials have assured the British government that he will not be made subject of 'Military Order Number 1' meaning that he could be detained indefinitely under the President's orders. McKinnon feared he would suffice prejudice if tried in the US, stating that if he was forced to stand trial in Virginia he was "[a]lready hung and quartered".

Above and beyond the legal (and moral) questions at issue here, is the worrying ‘hackability’ of the US military’s computer systems. Once McKinnon discovered they were running Windows, he was in there like a shot. But, it wouldn’t have happened if they’d been running Vista, right?!

Anyway, his supporters argue that instead of prosecuting him, the US government should thank him for bringing to light the massive security vulnerabilities in their computer systems. They might have a point. The matter has now been passed to Home Secretary John Read for a final decision. God help McKinnon, then!

Monday, 2 April 2007

Imprecise xenophobia still racial abuse

From: R v Rogers (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) [2007]

UKHL 8 A man (Rogers) who was found guilty of racially aggravated abusive or insulting words or behaviour with the intent to cause fear or provoke violence has had his conviction upheld.

Mr Rogers, shouted insults at 3 Spanish women which included the term “bloody foreigners”. The case hinged on whether these words constituted the racially aggravated form of using abusive words and behaviour with intent to cause fear or provoke violence, contrary to s31(1)(a) of the Crime and Disorder Act 1998?

Rogers’ appeal centered on the premise that "foreigners" is not a group of people identifiable as a race and therefore were not racially insultable. It was argued that the hostility must be shown towards a particular group, rather than to foreigners as a whole. Mere xenophobia, it is said, does not fall within the ordinary person's perception of hostility to a racial group.

BARONESS HALE: "It is argued for [Rogers] that the [Crime and Disorder] Act requires that the group be defined by what it [i.e. Spaniards] is rather than by what it is not [non-British]". "Hence it is argued that Spaniards are covered but ‘foreigners’, that is the non-British, are not.

Unsurprisingly, this line of argument was given short shrift. The definition of a racial group goes beyond groups defined by their colour, race or ethnic origin; it encompasses nationality. The list of prohibited grounds of discrimination was deliberately expanded in the Race Relations Act 1976 so as to specifically include nationality. Just because the perpetrator of this offence was vague and unspecific as to which racial group he was discriminating against, it does nothing to negate the gravity of his actions. Would it have made any difference to the Spanish women if Rogers had insulted them with the phrase ‘Bloody Spaniards’ instead of ‘Bloody foreigners’? Was the level of discrimination lower because direct reference was not made to their national origin? Of course not. Discrimination, by definition concerns the less-favourable treatment of certain persons compared with others for whatever reason: gender, nationality, ethnic origin, sexual orientation, etc. Using the pejorative term, ‘bloody foreigners’ was just as discriminatory as ‘bloody Spaniards’ i.e. an exact reference to the victims’ nationality. There was no argument, even from counsel for Rogers, that this latter type of insult would not unquestionably constitute the offence in question.

Case law illustrates that decisions of the Divisional Court and Court of Appeal have generally supported this line of reasoning. In DPP v M [2004] EWCA 1453 it was held that "bloody foreigners" was capable of demonstrating hostility to a racial group. Equally, in A-G’s Ref. No 4 of 2004 [2005] EWCA Crim 889 the term “non-British” was also capable of constituting a racial group for the purposes of making out an offence. Further, in R v White (Anthony) [2001] EWCA Crim 216, the word “African” was deemed to express hostility to a racial group because of the general interpretation of that word to mean black African.

The context of the abuse is seen as critical in determining whether that abuse can be categorised as racial hostility. During the C of A proceedings for Rogers it was stated: "[t]he very width of the meaning of racial group for the purposes of section 28(4) gives rise to a danger that charges of aggravated offences may be brought where vulgar abuse has included racial epithets that did not, when all the relevant circumstances are considered, indicate hostility to the race in question." Clearly, however, their Lordships were under no doubt that the circumstances and context in this case did indeed constitute racial hostility. Perhaps Baroness Hale sums the case issues up most profoundly: "The mischiefs attacked by the aggravated versions of these offences are racism and xenophobia". "Their essence is the denial of equal respect and dignity to people who are seen as 'other'. This is more deeply hurtful, damaging and disrespectful to the victims than the simple versions of these offences. It is also more damaging to the community as a whole, by denying acceptance to members of certain groups not for their own sake but for the sake of something they can do nothing about. This is just as true if the group is defined exclusively as it is if it is defined inclusively."