Monitoring Of Human Rights.

The monitoring of human rights in the modern world is a hotly debated topic. With many conflicts taking place, especially since the start of the war on terror, and the horrors of Abu Ghraib human rights have been a highly debated topic. One right is that which is covered by a Jus Cogens and the prevention of torture. The United Nations Convention Against Torture is another convention that is used to say that torture should not take place. It governs, amongst other things that will be discussed later, the inspection of detention facilities so countries can be held accountable for any torture that does take place. This never used to be the case though.

Pre seventeenth century legal proceedings used to use judicial torture to get convictions. A confession by the person being tortured was the only sure way of getting a conviction and was seen as the Queen of proofs. The methods used then were overt and the damage left behind, if the person survived, was for all to see. Eyes would be gouged out, fingers or whole limbs cut off, scars left all over the body. A famous contraption known as the rack was used to stretch the accused till he confessed or his limbs dislocated. Pre seventeenth century thinking towards law was different to modern thinking. Even with “the Great Writ” Habeas Corpus being traced back to The Magna Carta 1215 stating ‘No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.’ torturing was seen as normal and a part of judicial proceedings. Torture had been abolished for most part in history with Rome not torturing its citizens but it did torture slaves.

The use of torture to acquire a full conviction and the “queen of the proofs” was challenged by Cesare Beccaria in 1764. Beccaria argued three main points as to why torture was an inaccurate method. He started by saying ‘Every act of the will is invariably in proportion to the force of the impression on our senses. The impression of pain, then, may increase to such a degree, that, occupying the mind entirely, it will compel the sufferer to use the shortest method of freeing himself from torment.’ this is stating that if the accused is being tortured he will agree to anything that he is accused of just to stop the pain. People would admit to murdering a person who lied on the other side of a country if it stopped the pain. This is not the basis of a fair legal system. Beccaria then argued ‘Either he is guilty, or not guilty. If guilty, he should only suffer the punishment ordained by the laws, and torture becomes useless, as his confession is unnecessary, if he be not guilty, you torture the innocent; for, in the eye of the law, every man is innocent whose crime has not been proved.’ This means that a person can not be punished without a presence of guilt otherwise you are just punishing innocent people. Further point that comes from this is that the test of guilt is not one of legal fact or evidence but one of strength. The strong can withstand the torture and therefore aren’t guilty, the weak submit and therefore are guilty. Beccaria had a third point of non-incrimination, in todays legal world this means that remaining silent does not incriminate you and Beccaria wanted to say that because someone succumbed to the torture did not incriminate them, they did not instantly become guilty. Beccaria had a profaned affect on the perception of the effectiveness of torture and the reliability of its results and in 1830 Torture was banned across Western Europe except for slaves and prisoners of war.

Following the atrocities of the second world war the Universal Declaration Of Human Rights (1948) was created. Article 5 of this declaration prevented anyone being ‘subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ This was quickly followed up by the Geneva Convention which stated ‘wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.’ The efforts to prevent torture continued with the the introduction of the International Covenant on Civil and Political Rights (1976) (ICCPR). This again condemned the use of ‘torture or cruel, inhumane or degrading treatment or punishment’ and state ‘Everyone has the right to liberty and security of person. No one shall be subject to arbitrary arrest or detention.’ This covenant came a few years before the Human Rights Act (1998) in the UK. This stated again ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ This serves that in Europe at least there was a desire to eradicate torture on all levels. The Geneva Convention was to stop torture in wars and conflicts, the Human Rights Act to stop governments and to ensure basic rights for its citizens, for the most part these pieces of legislation worked and torture is not as rampant as it was pre seventeen century and is certainly no longer a part of judicial proceedings. The last big convention and piece of legislation to affect the world view on torture is that of the United Nations Convention Against Torture (1984) (UNCAT). This laid out procedures that would allow detainment centres to be visited to make sure no torture or degrading treatment was being administered. As well as reaffirming the previous European Convention on Human Rights (1950) prohibition of torture and the ICCPR.

With this development over time torture has changed from a normal occurrence of everyday legal relevance to a taboo and completely illegal act. The Jus Cogens on torture is a world wide ban. Yes the legislation mentioned is mostly European law or UK law but the Jus Cogens is absolute and affects all countries on Earth, no one can remove the right it guarantees to all people Earth.

That being said this does not mean torture is a thing of the past. Those who do partake in torturing people have just adopted now covert skills or non scaring skills. This means that they no longer cut off fingers or beat people but water board them instead and electrocute them. Darius Rejali was at the forefront of revealing these covert techniques and how they had developed. He put forward that successful torturing devices where ‘non lethal, portable, left few marks on the body, and were labour saving, painful, and flexible to use. They were easily available, easy to maintain, and cheap to replace.’ This in his eyes was so that when such items like ‘hoses, plastic bags, tires, rope, lights, chairs, keys, pins, buckets’ were requested no one gave it a second thought, they were everyday civilian items and could easily be disguised and removed if necessary without raising suspicion. He then discloses some torture techniques that are deemed as clean and covert that include ‘Electrotorture, beating, water torture, dry chocking, exhaustion exercises, positional tortures, positional devices, restraints, and sleep deprivation’ All these techniques wont leave a scar but through the bursting of ear drums, lack of sleep, the pain caused by being made to stand in standing cells or being tied to chairs in the shabeh the victim would eventually break and agree to whatever they are being accused of or give information that could well be wrong. This would also mean that due to the victim not having any scars at all when they made a claim of being tortured by someone they had no proof, their body was completely unmarked.
This adaptation of techniques seemed to allow the tortures to do what they liked but they still had inspections that were part of UNCAT. This came to a head and has been a sticking point over the detention facility Guantanamo Bay. This detention facility is used for suspected tourists and has been a focus point sine the war on terror began. A recent case that demonstrate that these checks are working is one of Mr Odah. He was finally released on the sixth of November this year after the Supreme Court found that it ‘does not remain necessary to protect against a continuing significant threat to the security of the United States’ Many may attribute this a delayed response to the atrocities of Abu Ghraib or that Obama has failed to shut the facility down.

Many of the soldiers stood trial for their actions in Abu Ghraib but it was not without difficulty. The Alien Tort Statute (1789) was designed to allow non US citizens to bring claims in the USA however in 2013 the US Supreme Court narrowed this applicability by stating that it needed to much and concern US territory with sufficient force. The Abu Ghraib cases did qualify however there are cases that would not. It can therefore be argued that this is a way of America getting away with torturing people in far off lands that have nothing to do with America, often called “black sites” these places are used so that the victim can not prosecute the country or the torturer and seemingly creates a loophole in the law. Now the Abu Ghraib and Guantanamo cases show that the Jus Cogens against torture will be enforced but with the Supreme Court doing this it has just become a lot harder.

The argument against that though is a good one. The treatment of these prisoners of war or suspected terrorist that could be classed as prisoners on the war on terror that did escalate in to an actual war are suffering treatment that we classified as torture in World War Two. ‘We had no difficulty understanding that these methods were torture when our enemies used them: during the second world war we had no difficulty comprehending that the ordeal of British POWs forced by the Japanese forced to stand for days in a tin hut in the brutal heat was a war crime; and recognised that in Stalins gulags standing and sitting while being deprived of sleep was torture too.’ Yet we do not accept out actions as torture because we tell ourselves we are on the side of justice or we justify our actions as to protect our own rights and that of national security.

The national security argument is seen as a easy way for a country to justify their actions but we have to remember that the people being tortured have rights too. They are covered by the Jus Cogens just as much as the country they are purportedly protecting. A famous New Yorker article demonstrates this double standard held by the USA and the British after the attacks of 9/11. The article is filled with a ex CIA operative revealing information about his work. He starts by saying that the CIA was eager for a extraordinary rendition program and makes a remark about one case where ‘The U.S. requested his return, and the Egyptians handed him over—wrapped head to toe in duct tape, like a mummy.’ and he mentions later on that ‘The obvious choice, Scheuer said, was Egypt. The largest recipient of U.S. foreign aid after Israel, Egypt was a key strategic ally, and its secret police force, the Mukhabarat, had a reputation for brutality. Egypt had been frequently cited by the State Department for torture of prisoners.’ This here shows that these arrests weren’t off the cuff or reactions to intelligence, they were fabricating intelligence. The rendition program was designed to get confessions from people to back the claims of governments and to get permission and justification for our own acts of torture. The abductions were calculated and methodical.

An argument that torture itself helps protect the rights of a nations population and so fall within the national security argument is that of the morality equation. This equation is as follows ‘wether the agent is the wrong doer times the number of lives that will be lost times the probability that the agent has the relevant information. This is divided by the time available before the disaster and the time other inquiries will take.’ This equation is said to prove that torture is acceptable the higher the final number is. This argument strips back and removes all humanity from the problem at hand. The dehumanisation of the matter by using this equation could be seen a torture itself. The human being you are torturing has rights to and this equation is a way of trying to dehumanise the situation and turn it in to one of numbers and math.

One of the most famous instances to arrive from a unlawful detention and torture is that of Binyam Mohamed. A native Ethiopian who was abducted and tortured before being sent to Guantanamo Bay for just under 7 years. Mohamed who has suffered some extreme torture over that time saying he head one torturer say ‘it would be better just to cut it off, he can only breed terrorists anyway’ For all his ordeal Binyam Mohamed received one million dollars in a settlement with the government. This would appear to be a admission of guilt and the cost of violating the rights of anther human being comes to the cost of one million dollars.

Take the case of Mamdouh Habib who was abducted in Pakistan and was held for three years and his torturers were both American and English. In Egypt he was subjected to horrific conditions. He said that he was beaten frequently with blunt instruments, including an object that he likened to an electric “cattle prod.” And he was told that if he didn’t confess to belonging to Al Qaeda he would be anally raped by specially trained dogs. Habib said that he was shackled and forced to stand in three torture chambers: one room was filled with water up to his chin, requiring him to stand on tiptoe for hours; another chamber, filled with water up to his knees, had a ceiling so low that he was forced into a prolonged, painful stoop; in the third, he stood in water up to his ankles, and within sight of an electric switch and a generator, which his jailers said would be used to electrocute him if he didn’t confess. Habib’s lawyer said that he submitted to his interrogators’ demands and made multiple confessions, all of them false.’ This type of torture is what Beccaria said would lead to false confessions, they had a suspicion but no proof of anything and the torture was to make the proof reality, this was a guilty first evidence later scenario. It is especial cruel three years when Habib is released with no charge. To some this would be no surprise but the USA could never get a conviction based upon confessions induced by torture.

This very point is evident in the case of El-Masri v the former Yugoslav Republic of Macedonia (2012) he was detained in Macedonia and flew to Afghanistan to be tortured. The European Court of Human Rights decided that ‘Macedonia [was] responsible for abducting Khaled El-Masri and subjecting him to inhuman and degrading treatment, as well as for failing to prevent his torture and enforced disappearance by CIA agents, and for subsequently failing to investigate his complaints effectively, and to provide him with a remedy for the violations of his rights.’ this decision had a further effect in that ‘it strongly deters European states not only from engaging directly in torture and enforced disappearances, but also from assisting other states in carrying out these grave violations of human rights.’ This ruling sets a very clear guideline in that if the victim can prove beyond reasonable doubt that they wee tortured then any state can be found liable. This is a clear step forward in terms of enforcing the rights that are now enshrined in numerous laws and ends the loop hole that the USA used in that some people were non lawful combatants is so the geneva convention would not apply. This case closes a lot of loopholes but is still a rare decision.

With the current situation regarding the state of ISIS and their mass beheadings this could be regarded as torture. Although we don’t know the ordeal that these hostages are put through the fear it instills in their enemies can be classed as torture. There persecution of Christians and the slaughtering of children is certainly cruel, inhumane treatment and above all murder. These acts are certainly not with in anything covered by the treaties I have made reference to. It still stands that their attitude towards the people they capture can reasonably be deduced to be torture and therefore would violate the Geneva Convention. With this being so they would be in violation of anti torture laws. but as has been expressed, achieving anything in court sand seeking justice is a hard and long journey. With ISIS proving to difficult to get near and with the current situation representing a war zone it would to be too much of an exaggeration to class the chances of trying ISIS on behalf torture near impossible. This of course shows that the Jus Cogens on torture is not as easy to enforce at all or takes a long time to enforce.

To conclude even though the laws that exist today that have come about via a Jus Cogens, or the Geneva Convention and the many European treaties and conventions, it has shown that they didn’t end torture, torture just adapted to be harder to detect. A main worry though is that even if cases start to reach the courts a lot easier and more cases are ruled in favour of the victim what is to stop torture just adapting again. It has shown through history how it has adapted and changed. The little changes and thresholds that have to be met to start a torture trial could get harder. Torture could be used as a threat to stop people from suing for torture. Violations against Human Rights is a sanction no country wants against their name but at the same time no country wants to be in the dark about what threats there are. Until such a time that Governments feels information can be gathered in a more reliable and easy way torture will continue. There a few glimmers of hope that our human rights are being enforced and torture is being monitored effetely but to have your rights invoked and upheld you have a lot of barriers to get through, the first being not breaking under torture no matter how bad the pain is. The renumeration as evidenced by the Binyam Mohamed case shows that even in winning your case the renumeration does not seem to value your rights very highly. This raises the question of do the government care about our rights and the international laws they violate.

Bibliography
Books
Mirko Bagaric and Julie Clarke, Torture (State University of New York Press 2007)
Jess Bravin, The Terror Courts: Rough Justice at Guantanamo Bay (Yale University Press)

Gareth Peirce, Dispatches from the Dark Side: On Torture and the Death of Justice (Verso 2012)
Darius Rejali, Torture and Democracy (Princeton University Press 2009)
Statutes

Magna Carta 1215

Universal Declaration Of Human Rights (1948) Art. 5

Alien Tort Statute (1789)

Geneva Convention IV (1949) Art. 147

European Convention on Human Rights (1950) Art. 3

International Covenant on Civil and Political Rights (1976) Art. 7

Human Rights Act (1998) Art. 3

Cases
El-Masri v the former Yugoslav Republic of Macedonia (2012)

Websites
BBC, ‘Kuwaiti Guantanamo Inmate Sent Home’ BBC US & Canada (6 November 2014) <http://www.bbc.co.uk/news/world-us-canada-29928061 accessed 7 November 2014.

Of Crimes and Punishments  Cesare Beccaria Of Torture.’ (Constitution Society) <http://www.constitution.org/cb/crim_pun16.htm accessed 1 December 2014.

Jane Mayer, ‘The New Yorker’ (New Yorker, 14 February 2005) http://www.newyorker.com/magazine/2005/02/14/outsourcing-torture accessed 2 December 2014.

The Law and the Internet. The Arguments Against Legal Restriction and Interference.

Having discussed the arguments for having legal intervention regarding the internet I shall now turn my attention to the arguments against legal intervention.

The internet is a public place. What you place on the internet can be shared millions of times across multiple sites thus creating a network of quick information and quick communication. A public place is a place that everyone has the right to enjoy and use so the internet again is a right everyone has a right to use. The government should not be restricting public places. People use various sites to express their opinions, their love for something or their displeasure with something, usually politics. Restricting these rights to free speech and freedom of association goes against the ECHR.

However recently a new idea has gathered momentum about why these restrictions and laws should not be put in to action. The notion goes that these restrictions are not needed, the pirates don’t want to pirate copyrighted material but due to the cost of the material they have no choice. The reason for piracy is accessibility. If accessibility was improved piracy would drop, it has dropped. Legislation would hinder the internet for decades and would be an overreaction.

Looking at Netflix shows how making material easily accessible lowers piracy rates. Piracy was fantastic for getting the content, software, ebook you wanted easily and quickly but Netflix offers a service where you get the content you want, movie or TV show, even easier and it doesn’t require you to store the content. ‘Since Netflix launched in Canada three years ago, piracy has dropped by a whopping 50 per cent’ [1] this shows that when a good service is offered and the content is easily and quickly accessible people will buy it. This fundamental idea would quickly eat away at the number of people who participate in piracy. People don’t mind paying for good services but when people feel like they are being ripped off or creators of content are just throwing out anything to make money they will pirate it because they don’t want to pay for poor content. This is a perfectly understandable reaction and as Netflix has shown piracy can be combated against by developers and creators improving their services. This indicates that there is no need for the government to place laws upon the internet and restrict the content people can access. Yes some people will always pirate material but we always have murders taking place as well so no law is perfect in stopping crime from happening and removing people rights will have lasting implications to the internet and could drastically change its use.

A second service that has helped reduce piracy is that of Spotify. ‘Through quarterly surveys researchers have polled the music consumption habits of thousands of Swedes between the age of 15 and 74, and in their most recent report they find that music piracy continues to drop.

Since 2009 the numbers of people who download music illegally has decreased by more than 25 percent, and over the last year alone it dropped by 9 percent. The data further suggests that this downward trend is caused by the availability of improved legal services such as Spotify.'[2] This again shows how an improved service that offers quick, easy access to what people want will deter people from piracy. The government can do other things than legislate about the internet. Helping firms that are providing these alternative services either by tax breaks or financial support for them to expand and improve their own services, the government would do more to help the fight against piracy than restricting viewable websites.

A third type of service that is only just started to expand but has had a huge effect not just on piracy but also on computing as a whole is cloud computing. Many companies that suffer from piracy such as Adobe and Microsoft have launched cloud versions of their most pirated software. Both hope that by having cloud based version of their products, for Adobe that is the creative master suit and Microsoft’s office 365, both companies will hope that people will willing to pay for the monthly or annual fees for instantly updated, products that don’t take up as much HDD space on your computer as they used to. Both companies offer a range of package that include the products being used on more than one computer meaning that everyone in a family can use the service. For example Microsoft office for a family of 5 computers is ‘£80′[3] a year in the cloud or £390[4] for one computer on disk. Cloud computing has drastically reduced the cost of new software and had made it more affordable to people meaning they don’t have to pirate the software they pay for it legally. This again shows how companies showing they are improving their services and trying to make their product as cheap as possible to then end consumer can reduce the piracy of their own product. Adobe has had fantastic success with its Adobe in the cloud service and has suspended any new disk releases of its products. The entire Master Collection, every program Adobe makes, for ‘£47 a month’. [5] This collection on disk is £3,100 [6]. All of the cloud based programs have automatic updates meaning you don’t have to wait for updates to install you just open the updated app in the cloud and start working. Microsoft and Adobe also claim that working in the cloud reduces the security risks as well, meaning users have a safer experience with their products.

Overall the arguments for not introducing legislation to deal with piracy come down to that of people just wanting better services. Yes some people will continue to pirate but people will continue to break other laws and blocking internet sites because of a few people is a lot of hassle and would lead to claim of infringement of human rights. The easiest way for piracy to be stopped is by the developers, the people who are falling fowl of piracy, to simply step up their game.

 

[1] http://www.huffingtonpost.ca/2013/09/18/netflix-canada-piracy-down_n_3947633.html
[2] https://torrentfreak.com/music-piracy-continues-to-decline-thanks-to-spotify-110928/
[3] http://office.microsoft.com/en-gb/buy-microsoft-office-365-home-premium-FX102853961.aspx?WT%2Eintid1=ODC_ENGB_FX010064710_XT104060515
[4] http://office.microsoft.com/en-gb/buy-microsoft-office-365-home-premium-FX102853961.aspx?WT%2Eintid1=ODC_ENGB_FX010064710_XT104060515
[5] https://creative.adobe.com/plans
[6] http://www.amazon.co.uk/Adobe-Creative-Suite-Master-Collection/dp/B007UXCQFC

The Law and the Internet. The Arguments For Legal Restriction and Interference.

Having made my initial thoughts clear and present it is only fair to now expand upon both sides of the argument to see what both sides, the government and the public, actually want to happen.

Let’s start with the Government. The Government set up GCHQ (Government Communications Headquarters) around World War II. The current ‘Who We Are’ page for GCHQ says the following “GCHQ is an intelligence and security organisation, working to keep Britain safe and secure in the challenging environment of modern communications.

Our heritage can be traced from the tremendous achievements in signals intelligence at Bletchley Park in World War II. We and our forerunner organisations served our country during both World Wars and then the Cold War. Today, we address a range of modern demands, dealing with threats from terrorism, the spread of nuclear weapons and the resolution of regional conflicts around the world, as well as protecting the economic prosperity of the UK.

GCHQ is firmly part of the British Government – I attend the weekly National Security Council chaired by the Prime Minister. We work closely with colleagues from other government departments, UK armed forces serving abroad, and with our partners in the intelligence community, MI5 and Secret Intelligence Service (MI6).

We work to the Foreign Secretary and are subject to scrutiny from Parliament, two senior judges and the Investigatory Powers Tribunal on the legality, necessity and proportionality of our work. We are proud of being an organisation of high ethical standards and culture, embedded in the framework of British law.

We are a secret organisation. We cannot publish all that we do – it would compromise our operations and our capabilities.”[1] Now this seems to be give them a lot of protection and room for kind of doing what they want however this room needs to be afforded to some. Now accountability is crucial to everything, no one can be seen to have unlimited power and the GCHQ are accountable to the Prime Minister who is accountable to the electorate so GCHQ are not uncontrollable, they just have a lot of freedom to do what needs doing to get the Job done but this still leaves the question of our right to privacy and our freedoms.

In response to the questions asked about people’s rights and freedoms it is clear that without the power to snoop and look in to parts of a person’s private life the GCHQ and police would not be able to determine threats to the country and stop them from happening rather than hunting down culprits after disasters have happened. This power will help the country many times a day, not only will it help the country physically, for example identifying possible terror suspects or threats to lives, the power also allows GCHQ to determine cyber criminals, those that would attack people via their own computers and destroy their personal lives by fraud or blackmail. The country had a special cyber deterrent force for the 2012 Olympic Games because of the cyber traffic it draws from all over the world. GCHQ does not spy on everyone, random traffic is selected and a selection of sights that are believed to be connect to wrong doing are watched but that does not mean that GCHQ are constantly watching your every move. The invasion of privacy line can only be crossed under reasonable grounds of suspicion, they can’t just watch your every move because they want to.

GCHQ are just one topic of argument over how people believe the government are trying to restrict and interfere with people’s use of the internet. A second is that regarding the Digital Economy Act 2010. This Act was concerned with the copyright infringement of digital media via piracy sharing sites. Along with this Act coming in to force the Prime Minister, at the time David Cameron, got ISPs (internet service providers) to block a list of websites that had been connected to illegal file sharing of copyrighted material such as movies and music. It is worth noting that the section of the act, section 15, that allowed ISPs to block internet sites was repealed by judicial review but on the notion that ‘copyright holders already had the ability to use Section 97 of the Copyright, Designs and Patents Act to take court action against websites.'[2] This list has grown overtime and will no doubt continue to grow but its effect has been minuscule.

The ninth annual global software piracy study found that ‘42%'[3] of people use pirated software. That equates to ‘$63 Billion'[4]. Add in music, movies, e-books, TV shows and you will have over 50% of the world involved in pirated activity. Ubisoft announced in 2011 that they had a ’93-95%'[5] piracy rate on PC. Now as much some would argue the price of games nowadays is astronomical, especially in these economic times, companies do deserve to get paid for their work and that just shouldn’t be allowed to stand. This is where the Digital economy Act and various other Act I have mentioned come in to play, but do they? Blocking an internet site will deter the low level, low skill pirate but those that are accustomed to the seas that are the internet will be able to manoeuvre around the seemingly impenetrable sea storm with a simple proxie randomiser or proxie reverser. These will allow PCs using the ISPs that are blocking restricted websites to gain access very easily, imagine butting a disguise on your presence on the internet, you just walk straight past the guards. There are many websites that offer this service for free, making it look like you are from Spain, or China, or Japan, somewhere the ISPs over here have no jurisdiction and cannot block sites. These free and available tools mean that all the work the government has done is for nothing. These tools and many more that I am probably not aware of are what is still allowing pirates to steal the works of others for free.

Simply saying the action is wrong is not enough in the online world. These pirates have been working away and creating their backstreet’s if you will for many years. The government is the new kid on the block in this case and needs to catch up. Piracy will not stop because the government has prevented it, piracy will stop when no one wants to steal anymore and that’s the sad thing, I think the law has to focus on not preventing it full stop but making it very hard to do so. Limiting the ability to pirate to only those that have a really high understanding of how to do so would be an easier more manageable goal, global piracy may be at 10% but that is better than 50% or more! Business will accept some people will never pay but by passing laws to make the option of pirating so remote, either financially or physically  or by other means you are not stopping it but removing it as a viable option to many who currently do, limiting it to a very small skilled number of people.

If people were not paid for their days work then they would be unhappy so why do they see piracy as an acceptable action? By participating in piracy you are stealing money from people’s pay packets and cost people their jobs. This isn’t right and the law should do all it can to enforce that people are paid for the fruits of their labours, it is morally and legally right. Some would argue that removing the ability to visit websites of your choice that are known to help and promote pirate activity is a restriction of liberty. Is this also the case for websites that promote extremist views and encourage people to commit acts of terror, for example the 7/7 bus bombings. Removing and restricting these extremist websites was not met with any opposition but removing websites that help with stealing copyrighted material was met with fierce opposition.

The reason for restricting access to these websites is a clear and just one, it is making sure that people that work on games, music, TV shows and other forms of digital works are paid for their work. As for GCHQ spying on your activity, that is an invasion of privacy, but at the same time they can’t do it just because they want to, they need grounds for suspicion so if you have nothing to hide you won’t be investigated.

 

[1] http://www.gchq.gov.uk/who_we_are/Pages/Welcome-to-GCHQ.aspx
[2] http://en.wikipedia.org/wiki/Digital_Economy_Act_2010#Blocking_Internet_lo        cations
[3] http://globalstudy.bsa.org/2011/
[4] http://globalstudy.bsa.org/2011/
[5]http://www.eurogamer.net/articles/2012-08-22-ubisoft-has-endured-a-93-            95-percent-piracy-rate-on-pc

 

Decision day looms over professionals’ responsibilities

Being sued for not giving advise you never agreed to give, whatever next? Being in breach of contract for not building a new suspension bridge when only agreeing to deliver eggs to the local shop?

The Times Blogs

Looks like it is going to be an important week for defining just how far professionals’’ responsibilities extend to their clients. The focus on Tuesday (25th March) will be on the Court of Appeal where judgment will be handed down in the Mehjoo v Harben Barker case which brings to a head a definition of the point at which an accountant (or for that matter a lawyer) can switch off and say, “Sorry, pal, but nothing to do with me”.

On the face of it the case is simple enough. Mr Mehjoo, am Iranian, argues that that his accountants – Purnell & Co which subsequently merged with Harben Barker – should have referred him to specialist tax advisers so that they could advise him about his “non-domicile” tax status with the implication that this could have given him significant tax advantages. The fact that they failed to do so amounted…

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The Law and the Internet. Initial Thoughts.

The law and the internet aren’t exactly the best of friends, only recently the internet’s creator, Tim Bernes Lee, has called for an internet Bill of Rights to protect all those who use the internet and give people set rights for the online world. Now I am not arguing for the internet to be some completely free ‘do what you want’ social zone, internet fraud, botnets, hacking ect all need to be controlled but the internet is a public domain and it is just that, public. The internet is in a way what you make of it, you can become famous on twitter, build a business from nothing, get discovered via youtube, the internet holds no bounds but it has to hold no bounds within limits, like society.

Becoming rich via the internet because you stole credit card details or hacked a bank account wouldn’t be acceptable offline so it isn’t acceptable online but the people that partake in such crimes is tiny and placing restrictions on what sites can be viewed and what content can be portrayed harms everyone not just the culprits. We don’t place a whole town in jail because one of the population killed their neighbour.

Spying on what people view online, send online, receive online, and put online is an invasion of privacy. Hacking phones is an invasion of privacy, ask the News of the World, they know all about it, so accessing someone’s personal computer to see what they are doing online has to fall under the same area of law. Now I know that governments like to use the “national security” argument, well do we get to see what the government is doing behind our backs because they seem to be the biggest threat to national security, how often do we hear after a bombing or murder that the police knew about the culprit(s) but just didn’t act. Why don’t they get out an arrest them before they blow up another bus instead of watching me watch more funny cat videos on youtube.

The thing about the internet is that when it is used for good reasons it is extremely powerful, look at the way we have postponed internet bills from being passed or exposed hidden extensions of power that are in the small print of a bill, the government don’t like this but what are they going to do? ‘This call to arms is a welcome one. The threats to the web’s future are myriad and varied. Last year, former National Security Contractor Edward Snowden revealed that the U.S. and British governments conduct internet surveillance at a massive scale. This year, a U.S. court struck down the Federal Communication Commission’s network neutrality rules. In China, the government still seeks to control internet access with its Great Firewall. And in places like Egypt, we’ve seen governments shut down the internet on occasions in an effort to prevent activists from spreading information and organizing protests.'[1] Governments around the world have tried to gain control of the internet but just as piracy has shown, even if you aren’t a fan, you can’t really control the internet as such, you block a site and a new one just pops up to replace it or people find a way around the block, internet service providers didn’t really want to comply, they complied because they had to by law but if someone regularly gets around their proxy they wont act on it. Governments are helpless in this situation, the internet can’t be controlled, it can be policed by people like Microsoft who recently shut down the biggest botnet in the world, or at least started to with Kasperskey labs but more botsnets will spring up, they aren’t fixing the problem, they have just dealt with another problem, these are not the same thing. Where as laws for the physical world do deter crime, to some extent, in the online world you don’t have to reveal anything about yourself, you can create a completely new life from nothing! look at the program catfish! The online and offline worlds are two different beasts and trying to control both in the same way wont work, you need two different approaches. I don’t know what these are, I wouldn’t know where to begin, I know what needs to be stopped but saying that is the easy bit, the actual carrying out of this is the hard bit but this Internet Bill of Rights would be a good place to start, knowing your rights and what you are entitled to is always a good place to start.

[1] http://www.wired.com/wiredenterprise/2014/03/web25/

The Rule of Law

The rule of law is a concept that is widely accepted and talked about but hard to put a meaning to. Below I will discuss the principles of the rule of law and how effective this concept of the rule of law is in the UK.

Before we can see how effective the rule of law is in the UK we need to know what the rule of law is and this isn’t easy to define. “T R S Allan has noted that: “In the mouth of a British constitutional lawyer, the term “rule of law” seems to mean primarily a corpus of basic principles and values, which together lend some stability and coherence to the legal order.” In the mouth of the politician, however, the rule of law becomes a stick with which to beat other regimes.”[1] This quote from T R S Allen means that in Britain we abide by these rules and principles that we made so they are helpful guides to our legal system but other regimes that don’t follow our ways can be criticised with the rule of law for passing unjust and unfair legislation, take Russia and their anti-gay laws for example, these have been criticised heavily in the media and by lawyers across the world for being completely unjust and totally wrong. This clearly shows that there is no one set definition for the rule of law. It can be suggested that best way to define the rule of law would be instead to state what principles it incorporates.

The rule of law is not a legal rule as such; it instead consists of legal principles that are widely and some not so widely agreed upon. Firstly the rule of law holds that all actions of the state should have a legal basis, that is its actions should be lawful and within their rights to do so. This leads in to the second notion of that the law should be fair and equal; all are equal before the law. Thirdly the people that make the law and maintain the law should respect the law; they shouldn’t abuse the law and their position in society. Fourthly the law should be precise and clear, people need to know what the law is and how it affects them directly, people haven’t got time to look through mountains of books to find out what a specific law means, this law should also be adjudicated upon by an independent judiciary. These points as well as others have been pointed out by Raz who also mentions that it would be foolish to try and state all principles incorporated by the rule of law but Raz states that “all laws should be prospective, open, and clear; laws should be relatively stable; the making of particular laws should be guided by open, stable, clear, and general rules; the independence of the judiciary must be guaranteed; the principles of natural justice must be observed; the courts should have review powers over the implementation of the other principles; the courts should be easily accessible; and the discretion of the crime-preventing agencies should not be allowed to prevent the law.”[2]  Just from this list here without explaining any of them in depth you can see that they are important in the UK today. The most important some would argue is the separation of the judiciary. That separation allows them to stay free from political bias and keep everyone equal before the law, even the law enforcement agencies themselves.

Having established that the rule of law is not an easy concept to put a definition to it would be hard to evaluate its effectiveness in the UK today from its definition, or lack of. However by looking at its principles it becomes easier to evaluate. Starting with the principle that the law should be prospective, this means that law should look forward not backwards. In criminal cases retrospective laws are frowned upon due to them turning an act that was legal at the time it was committed is now illegal, this is entirely unfair. That being said the use of retrospective law is common place, especially in common law as this law is stated after an offence has been committed but the most notable case is that of R v R (1992).[3] This case revolved around marital rape and it was possible. At the time the offence was committed it was not against the law but the House of Lords decided that rape did occur and this is a clear example of retrospective legislation. This then would seem to be a contradiction of the rule of law but it was commented by Allan that “In another sense, the common law is not truly retrospective in operation. It attempts to apply previously articulated principles to new instances, and in its earlier development it gave concrete expression to understandings which, though implicit in previous practise or settled understandings, had not been settled authoritatively.”[4] This statement somewhat allows an exception to the rule of law in that if the law that is being created has been eluded too in previous cases and has been part of a rulings understanding but is now only being dealt with in an authoritative manner then it is acceptable. This is a crucial exception as murder is a common law, it would have been authoritatively created retrospectively and if the rule of law was strictly adhered to then this wouldn’t have happened.

Relating to this first principle is the one that the law should be open and clear. This principle is quite straight forward and easy to understand. The law needs to be open about what the law is, what is right and what is wrong, but more importantly the law needs to be set out in such a way that everyone who is subject to those laws understands exactly what is required of them. It stands to perfectly good reason that if people don’t know what the law is then they won’t know what they can, and more importantly, can’t do. This is mentioned by Lord Donaldson MR in the case of Merkur Island Shipping Corpn v Laughton (1983) “The efficiency and maintenance of the rule of law, which is the foundation of any parliamentary democracy, has at least two prerequisites. First people must understand that it is in their interests, as well as in that of the community as a whole, that they should live their lives in accordance with the rules and all the rules. Second, they must know what those rules are. Both are equally important.”[5] Lord Diplock then added this “Absence of clarity is destructive of the rule of law, is unfair to those who wish to preserve the rule of law, and encourages those who wish to undermine it.”[6] This clarity applies to both Parliament and the courts in creation of common law. If judges in the courts try to be over ambitious with a laws meaning or in the process of creating common law then the rule of law could be placed in danger. Lord Bingham made this point “it is one thing to move the law a little further along the line on which it was already moving, or to adapt it to accord with modern views and practices; it is quite another to seek to recast the law in a radically innovative or adventurous way.”[7]

The principle of natural justice is linked to a right that everyone has, the right to a fair trial, this means that there is no bias in the decision making process. Lord Steyn stated that “the rule of law enforces minimum standards of fairness, both substantive and procedural.”[8] This was backed up by Lord Bingham who said “The so-called rules of natural justice have traditionally been held to demand, first that the mind of the decision-maker should not be tainted by bias or personal interest and, secondly, that anyone who is liable to have an adverse decision made against him should have a right to be heard.”[9] This rule is a major point that we still talk about today and recent cases have had juries dismissed for talking about cases out of the court or being contaminated by intimidation or researching the case online. The jury being unbiased and uninfluenced by anything other than what they hear in court is massively important in the courts. This principle of the rule of law as has been highlighted is key to the legal system.

Having an unbiased jury and giving a person a fair trial is all well and good but for that to happen the courts need to be accessible. The courts do not take kindly to anyone who attempts to remove this right or restrict it. In the case of R v Lord Chancellor, ex p Witham (1998) the chancellor through statutory powers increased the fees of writs. This meant the appellant could not pay the increased fees and was denied access to the courts. Laws J in this case reported “ Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically –  in effect by express provision – permits the executive to turn people away from the court door. That has not been done in this case.”[10] This principle is held very highly by the courts and they extend it further regarding the case of R v Secretary of State for the Home Department (2003). This case revolved around the government removing an asylum seekers benefits without proper explanation or notice. On this case Lord Steyn noted “That principle requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected…I accept, of course, that there must exceptions to this approach, notably in the criminal field, eg arrests and search warrants, where notification is not possible.”[11] This addition is vital , it is essentially saying that a person’s rights can’t just be changed or altered, they have to be informed  in court, by a court order, or in due notice.

The principles that have been examined so far have been those of Raz and they are widely agreed with, with maybe one or two variations. The biggest variation is that of Dicey. Dicey believed that three elements created the rule of law. Dicey’s first element was that “no man was punishable except for a distinct breach of the law established in an ordinary manner before the ordinary courts of the land”[12] Dicey seemed to be stating that a man can’t be guilty for not doing anything but he was also stating that he believed that regular law was dominant over arbitrary power held by the executive.

Dicey’s second element was that of none was above the law. “Every man, whatever be his mark or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”[13] This element is still visible today especially over the expenses scandal and the bale out of the banks.

Dicey’s third and final element was that of the constitution. He saw the constitution as a product of the courts and contained all the good and bad that was involved with judge made law. This can be seen in the actions of judicial review and the role of judges and whether new laws are compatible with the ECHR.

Dicey did receive criticism for his views, most notably that he overlooked discretionary powers and some questioned his understanding of the rule of law.

Relating to Dicey’s second principle is the principle of equality before the law. I have already alluded to this and King Rex has the same meaning, as does the judiciary, no one, no matter of background or status is above the law of the land.

A final principle to look at is that of legality. This is to stop the rights of an individual being infringed but it has clear limitations. It is powerless when the authority that carried out the alleged infringement has statutory power or legal power to do so. In these cases all that can be done is the courts can interoperate the law as best they can and in cases of statue they can’t interfere with the will of parliament.

The rule of law was strengthened by the passing of the Human Rights Act 1998. This set in stone rights that people were now guaranteed. Meaning the principles of the rule of law could be more strictly applied and used in scrutiny of the laws passed by parliament. Lord Bingham goes further and says the Magna Carta 1215 was “the rule of law in embryo”[14] as it started talking about and setting in place rights of people, mostly talking of free people and whites but it began the process. This it could be argued was encapsulated by the Human Rights Act which ensured rights for all, taking it a step further. The passing of the Human Rights Act has allowed governments to go to war in interests of national security but has also allowed people to stand up and take action against governments. Most notably was the argument over detaining people for prolonged periods of time without charge. This was aimed at terrorists but the Labour government of 2001 had to change and lower the detainment time without charge due to the campaign that it infringed human rights and infringed the principle of the rule of law that laws must be just and fair. Many thought that the legality of holding people for prolonged periods of time without charge could not be justified, yes it may have been made law but that does not make it correct and just. It was argued that the morality and legality of this act was dubious

To conclude the rule of law does not have a direct set meaning, it is a collection of principles. These principles are still relevant today as I have discussed. Most notably the right to a fair trial and the unbiased jury but also the fact that everyone is equal in the eyes of law, something people are keen to witness with recent economic events. The courts themselves recognise its importance even if its meaning is hazy. They hold that all courts should be accessible, something they don’t like policy trying to interfere with. The rule of law, maybe not talked about or thrust in to the line light a lot these days due to the Human Rights Act, is still valuable and still worth noting even if new acts and policies ensure a lot of its principles are enacted.

 

 

 

 

 

 

 

 

 

 

Bibliography

  1. T Bingham, The Rule of Law (1st edn. Penguin 2011)
  2. N Parpworth, Constitutional & Administrative Law (7th edn. Oxford University Press 2012)
  3. 3.      R Ekins, Judicial Supremecy and the Rule of Law, Law Quarterly Review (Sweet & Maxwell 2003)


[1] N Parpworth, Constitutional & Administrative Law (7th edn. Oxford University Press 2012) 34

[2] Ibid 36

[3] R v R (1992) 1 AC 599 (HL)

[4] N Parpwoth (n1) 37

[5] Merkur Island Shipping Corpn v Laughton (1983) 2 AC 570 (HL)

[6] Ibid

[7] T Bingham, The Rule of Law (1st edn. Penguin 2011) 846

[8] R v Secretary of State For The Home Department, ex p Pierson (1998) AC 539 (HL)

[9] T Bingham (n7) 1080

[10] R v Lord Chancellor, ex p Witham (1998) QB 575

[11] R v Secretary of State for the Home Department(2003) UKHL 570

[12] N Parpworth (n1) 40

[13] Ibid

[14] T Bingham (n7) 257