Adversarial Justice, maybe not all its cracked up to be.

Adversarial Justice, maybe not all its cracked up to be.

I am working my way slowly through “Stories of the Law“, by the Secret Barrister and came across this,

Such as whether adversarial criminal justice is all it is cracked up to be. Whether to much – truth, dignity – is sacrificed on its alter. Whether a system that does not have as its stated aim the pursuit of truth, but instead rewards the best game player in a winner-takes- ll contest, can really be said to deliver justice in a sense understood by anyone outside of legal circles. And whether, if we have abandoned –  or never even prized – truth as a guiding principle of our trials, we’re doing the gross injury to Enlightenment principles with the result that all of us – defendant , victim and society – are wronged.

The Secret Barrister

I wrote this too soon. In the following paragraph, SB, makes the argument that inquisitorial systems have one fundamental weakness

Such cases demonstrate the fallacy of assuming the state is able to neutrally seek truth as opposed to aligning on its own theory and embarking on ex post facto buttressing of that narrative. And this is a criticism often levelled inquisitorial systems by those who work within: not withstanding their oxymoronic designation as ‘neutral’ prosecutors, the prosecutor and the police may bow to natural inclinations to take a partisan position against the suspect and construct a case against him.

The flaw runs deeper than the motivations of individual investigators, however: inquisitorialism is compromised by the inherent susceptibility of the state machinery to political influence not at the level of high conspiracy, but the subtle pressures the government bring to bear on the administration of criminal justice. The ubiquitous ministerial intuition that cost savings can be made without public outcry by shearing the justice budget, cutting a few corners here and there,  has been demonstrated at length. You do not need to be modelling a tin foil hat to recognise the politicians incrementally dispense with systemic safeguards, increasing the incidence of wrongful convictions, to bank transitory credit for being ‘tough on crime’; often as a reflex to media campaigns to improve conviction rates for particular offences.

The Secret Barrister

Featured image : Richter benutzt dunkelbraun-goldenen Hammer vor weißem Hintergrund CC 2.0 Marco Vetch 2018 BY …

Miscarriage of Justice

I am reading the Secret Barrister’s first book, I provide a quote,

“In the Crown Court, I have prosecuted many appeals from the magistrates’ court of unrepresented defendants and have lost count of the number of cases where there has been a conviction that is completely wrong in law, or completely wrong in evidence, the fact of which only emerges upon close inspection of the papers. “

The Secret Barrister

If the courts get it so wrong, and when we examine the Labour Parties rules …. …

Should you stay or should you go

Alastair Campbell, Blair’s Director of Communications has been expelled (or auto-excluded) from the Labour Party probably under rule 4.I.2.B. He stated that he voted for the Lib Dems in the European Parliamentary elections. This was done as per the rule, with no right of defence, no hearing and no right of appeal.

The rule states,

2.I.4.B A member of the Party who joins and/ or supports a political organisation other than an official Labour group or other unit of the Party, or supports any candidate who stands against an official Labour candidate, or publicly declares their intent to stand against a Labour candidate, shall automatically be ineligible to be or remain a Party member, subject to the provisions of Chapter 6.I.2 below of the disciplinary rules.

The rule is in three parts, the first is about “political organisations” and the second about behaviour during elections, the third governs the exclusion & readmission process.

As Shami Chakrabarti points out, we cannot expel or in anyway sanction people for the way they vote, but it seems the NEC are having second thoughts; we’ll see what happens, but whatever they do, they need to recognise that the no defence, no appeal part of this rule put it in contravention of the rules of natural justice. If they let Campbell off, as they did with Andrew Fisher, this will be rightly seen as one rule for the powerful and one for the rest of us.

The rule should be re-written to add clarity as to which organisations or class of organisations lead to sanctions; I would argue this should be limited to fascist organisations or borrow from the NUS no-platform policy and add to that all other political parties. The rule should be rewritten to have a right of defence, and right of appeal although I recognise in some cases there is a need for velocity. (Or maybe just abolish it and define campaigning for another party as “conduct prejudicial” and dealt with by the NCC processes which are in need of reform themselves.)

I argue that all 2.I.4.B auto-excluded should be given amnesty as not only is the rule contrary to natural justice it was applied factionally and in bad faith.

It should be noted that the Labour Party has other rules to protect itself, it can refuse to allow people to join or it can sanction them under its Chapter 6 processes if actions are prejudicial or grossly detrimental. …

Eternal vigilance

I have been pointed at China’s Social Credit Scoring plans via two routes. The first is this extract published at Wired from Rachel Botsman’s book, “Who can we trust”. This details the Chinese Governments plan to build a social credit scoring scheme, but the sources and incentives are horrendously comprehensive, including their leading match making agency. (It’s taken me some time to read this article, an I have bookmarked and annotated it in my diigo feed.) Worrying things about the Chinese scheme is that voluntary participation becomes mandatory; while rewards and incentives are at the forefront of everyone’s mind today, control and punishment is planned, in the Chinese case in the short term they are talking about foreign and domestic travel restrictions but as I note, the countries leading dating agency is one of the surveillance agencies. There is also talk of social investment loans (helicopter money) which become available on the basis of social scores.

The second route was an article on Medium by someone who got banned from AirBnB. He pointed at an article on Buzzfeed, “A Chinese-Style Digital Dystopia Isn’t As Far Away As We Think” where a series of regulatory decisions in the USA seem to be paving the way to something similar, a powerful illustration that the argument that surveillance is OK if it’s private sector is horrendously false.

One worrying aspect of the proposed Chinese system is that your reputation is as good as that of your friends and we have idiots trying to replicate it with peeple, and reading up on that has started me worrying about Linkedin and its competitors and we all know we should get off facebook.

The wired article came before machine learning and massive scale AI became a hot topic, but it’ll be interesting to see what happens to social credit scores when they let rip with the application of machine learning. The automated derivation of reputation scores also raises issues of safeguarding, libel and context. Safeguarding and libel laws require the machines to tell the truth, in fact safeguarding may require machines to hide the truth. Context requires a level of nuance that we are unsure if machines will ever have, but even if they get there, justice and judges must remain human and the code must be open; China’s & Facebook’s is not!. The GDPR gives data subjects rights, perhaps its time to revisit the seven principles.

Of course in the UK, we have our very own examples of machines and data sharing getting it wrong. Sajid Javid, the Home Secretary has suspended the intra-government and some of the other immigration data sharing as a result of the backlash on the Windrush scandal. (I wonder if this I an excuse to look again at the DPA Immigration Exemption clauses.) Much of what is happening in China and the USA is also happening in the UK, it’s just that the surveillance agents are the US owned datenkraken and the British State have legalised the hacking of their data streams.

What’s happening in China is terrible, but our governments are following suit! The price of freedom is eternal vigilance. …

Manifesto bingo, digital liberty and the internet

Manifesto bingo, digital liberty and the internet

I have had a look  at the manifestos and see what they have to say on the internet and Digital Liberty. I have been very influenced by the EDRi voting exchange and summarise the issues of Digital Liberty as e-citizenship, equality before the law, privacy and copyright reform, to which for this election we must add internet governance and industrial & innovation policy. I have created a table summarising the positions of the Tories, Labour, LibDems and Greens. Possibly I should have analysed the SNP manifesto since much of this is Westmister reserved powers. I was hoping to write something easy and quick to read. I don’t think I have succeeded. My super summary is in the figure immediately below, and here is the table I built to help me write this article. (I lost the excel file, so this will have to do!)  My main source was the ORG pages but I have been reading the Labour Manifesto also. I feel that the opposition parties have suffered from the surprise; they probably expected more time to develop their promises. All three opposition parties 2015 manifestos covered these issues in more depth.  …

Dangerous Times

Dangerous Times

Anthony Barnet writes at Open Democracy, an article called, “The Media Monarchy”, in which he looks at the Law, the Media, contempt and the bullying of the Supreme Court. He finishes by pointing out that our Constitution is the result of centuries of fighting against originally despotic monarchs amd that the new unaccountable, unchallengeable power potentially oppressing citizens is the media and while he doesn’t make much of it, the UK, has the weakest foreign ownership controls on the media. …

Innocent until proved guilty

Innocent until proved guilty

Having been to see “If Only” and reflected on triangulation and careerism in the Labour Party, the ramifications of the Falkirk selection affair became clearer. Last Wednesday week ago, at a Prime Minister’s Question time that Cameron actually turned up to,  Ed Miliband let Cameron accuse him of being in the pocket of Len McClusky and Unite. This is from a man who ‘let go’ his Party Treasurer for being accused by the Sunday Times of selling access, the leader of a Party where parliamentary committee members are selling their time and actions to lobbyists and the man who offered Andy Coulson, the man whom, it would seem, authorised the original Hackgate, a job in Downing St. It’s arguable that Ed Miliband has been trying to catch up since and he has taken the Falkirk selection as his trigger for action. …