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."

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.

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!

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."

The Michael philosophises

A classic quote from 'The Michael' on December 14th 2006, clearly in a cynical albeit rather erudite and perceptive mood.

"Asking the lawyer for advice in respect of a problem, however small or ostensibly straightforward, is neither recommended nor ever simple.

Lawyers love to unnecessarily wrap issues up in complexity and obfuscation. This serves two purposes. Firstly, it helps them to present themselves as sophisticated, intelligent beings, capable of disentangling a solution from a bird's nest of a problem. This cloak of pretence and intricacy provides them with a platform on which to expand their rather under-developed and uninteresting personalities. Their high salaries allow them to afford the feckless frivolities in life that they invariably take delight in, thereby surrounding themselves with luxurious sundries to, at least for a short while, forget their own miserable existences in the vacuous wretchedness of their worthlessness.

Secondly, and perhaps more importantly, taking time to unravel particularly convoluted and troublesome issues -- which are invariably neither convoluted nor troublesome -- is vitally important to lawyers for another reason: they bill by the hour."

Boozed-up leg-rubbing, indefensible

R v Heard, Court of Appeal Criminal Division - Published March 6, 2007

This case seems to have gone to appeal on the basis of a rather fanciful and imaginative line of reasoning – one which is centred around well-settled law and in that sense should not have been given 'court-room'. The fact it went to appeal is disturbing in itself, mainly because the ‘point of law’ was simply shrouded in obfuscation and 'needed' an appeal judge to ‘set the record straight’. What a waste.

In short: a defendant who became voluntarily drunk and ‘rubbed-up’ against a police officer’s leg could not successfully rely on the defence of intoxication so as to avoid liability for sexual assault under section 3 of the Sexual Offences Act 2003. The defendant claimed he was so drunk he was not aware of his actions or in control of himself, so to speak.

For a section 3 offence to be made out the following are required:
- Defendant (D) intentionally touches another person, (victim) (V));
- the touching is sexual;
- V does not consent to the touching, and;
- D does not reasonably believe that V consents.

The trial judge directed the jury that the touching must be deliberate and the defence that voluntary intoxication with the effect that the defendant was unable to form the intent to touch was not available to him. This is based on well-settled law and is unshakeable in legal reasoning. Parenthetically, in the appeal, it was stated that there was no universal test for determining which crimes could be successfully defended through voluntary intoxication and those which could not – it would largely depend on public policy considerations.

The touching was clearly intentional: the defendant had not flailed around in an uncoordinated manner but rather deliberately rubbed his genitals up the police officer’s leg. If the touching was unintentional, irrespective of whether the defendant was intoxicated or not, a section 3 offence would not have been made out.

With that in mind, the defendant’s lawyers had one remaining ace to play for appeal: to argue that the offence was not one of basic intent but rather specific intent. Specific intent involves the concept of intention being considered in relation to the purposes of the criminal act; basic intent considers intention independently of the purposes. In this context, therefore, the defendant tried to argue that because of his drunken state, he was not fully aware of what he was doing and, – here comes the crucial point – the purpose of his touching was not sexual because of it. If the section 3 offence was to be viewed as one of specific intent, this line of reasoning might work, with clearly repugnant consequences: any drunken oaf could get away with a grope (or worse) claiming that because of their drunken state, the touching was not sexually motivated and thus a section 3 offence could not be made out.

Thankfully, the Court of Appeal were having none of this. Somewhat unhelpfully, though, they stated that some offences (such as s3 SOA) could not be straightforwardly viewed as requiring basic or specific intent as different elements of the offence required proof of different states of mind. While this argument was a neat way of justifying their decision, it had the effect of opening up a can of worms which, frankly, need not have been opened.

Clearly, voluntary intoxication in respect of a sexual offence could never be relied upon as negating the necessary intention irrespective of how it was sliced. It was always just a matter of seeing how and on what basis the Court of Appeal would shoot the argument down in flames.

Microsoft’s Antitrust issues just keep on rollin’

This one has been running so long that I’m frankly pig-sick of it now. The EU clearly have been wanting to turn the thumbscrews into Microsoft for so long that they’ve forgotten their original gripe with them. Not that the EU would ever act in a vindictive, recalcitrant or vengeful way, of course. Still, it would seem that Redmond’s [rather reticent] response to the EU’s 2004 antitrust ruling has now suddenly been deemed inadequate. Again.

The problem centres around one of the requirements laid out by the EU that Microsoft must adhere to: the provision of documentation to aid software developers creating programs to be more interoperable with Windows Server products. While Microsoft were never exactly ‘swift’ in acceding to ANY of the EU’s requests, they certainly have dragged their feet the most in respect of the documentation issue.

In short, this is the ultimate court[room]-based tennis match, with a seemingly never-ending rally going between the EU and Microsoft. As soon as the former pitches another allegation against the software giant, Redmond hits back with an imaginative ‘return’ argument or objection.

My biggest gripe with this enormously expensive, tedious and protracted affair is the pointlessness of it all. The EU can (and no doubt will) pursue Microsoft like a hunted beast for years to come and tragically achieve precious little in doing so. Just look at the requirement of Redmond having to provide a media-player-free version of Windows XP to be sold in Europe. This 'N' version of XP has been bought by all of six people, I’m informed. And five of the those purchased it erroneously.

‘The case continues…’