The detail of the accusations against Assange

Because of the difficulty in finding out what exactly is alleged against Julian Assange, this post sets out the accusations in full.  Please note that these are accusations only and are denied by Assange.

 

There are four accusations against Assange in the European Arrest Warrant issued on 26 November 2010.

I set out each of these four accusations as stated in the EAW.

Then for each accusation I also set out the London High Court’s summary of the relevant complainant’s statement.  These statements are legally relevant as they were considered by the High Court in determining whether the alleged conduct was fairly described in the EAW.

In each of the four accusations, the High Court held that the alleged offences would constitute an offence under the criminal law of England and Wales.

(“H” refers to the Judgment of High Court, 2 November 2011 [2011] EWHC 2849 (Admin). Numbers refer to paragraph numbers.)

 

The first accusation is in respect of AA and is stated in the EAW as follows:

1. Unlawful coercion

On 13-14 August 2010, in the home of the injured party [AA] in Stockholm. Assange, by using violence. forced the injured party to endure his restricting her freedom of movement. The violence consisted in a firm hold of the injured party’s arms and a forceful spreading of her legs whilst lying on top of her and with his body weight preventing her from moving or shifting.

This was supplemented by AA’s statement, which the High Court summarised as follows (H74):

 AA said in her statement that she had offered the use of her apartment to Mr Assange from 11-14 August 2010 when she was away. She had returned on 13 August 2010 earlier than planned and then met him for the first time. They went out to dinner and returned to her apartment. As they drank tea, he started to fondle her leg which she welcomed. Everything happened fast. Mr Assange ripped off her clothes and at the same time broke her necklace. She tried to put her clothes on again, but Mr Assange had immediately removed them again. She had thought that she did not really want to continue, but it was too late to tell Mr Assange to stop as she had consented so far. Accordingly she let Mr Assange take off all her clothes. Thereafter they laid down on the bed naked with AA on her back and Mr Assange on top. Mr Assange wanted to insert his penis into her vagina, but she did not want him to do that as he was not using a condom. She therefore squeezed her legs together in order to avoid him penetrating her. She tried to reach several times for a condom which Mr Assange had stopped her from doing by holding her arms and bending her legs open and trying to penetrate her with his penis without a condom. Mr Assange must have known it was a condom AA was reaching for and he had held her arms to stop her. After a while Mr Assange had asked AA what she was doing and why she was squeezing her legs together; AA told him she wanted him to put on a condom before he entered her. Mr Assange let go of AA’s arms and put on a condom which AA found for him. AA felt a strong sense of unexpressed resistance on Mr Assange’ s part against using a condom.

 

The second accusation is again in respect of AA and is stated by the EAW as follows:

 2. Sexual molestation

 On 13-14 August 2010, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity. Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, consummated unprotected sexual intercourse with her without her knowledge.

This was supplemented by AA’s witness statement, which the High Court summarised as follows (H93):

 AA’s statement went on to describe what happened immediately after what we have set out in relation to offence 1. She made it quite clear, as we have set out at paragraph 74, that she wished him to put a condom on before he entered her. Indeed she was concerned he had not put a condom on. She felt his penis with her hand to check he had really put it on. She felt that the edge of the condom was in the right place on the root of his penis. They therefore continued to have sex, as she said that she thought that she just wanted to get it over with. After a while AA noticed that Mr Assange had pulled his penis out of her and started to arrange the condom. Judging by the sound AA thought he was removing the condom. He then penetrated her again and continued sexual intercourse. She felt again with her hand that the edge of the condom was, as previously, around the root of the penis. She therefore let him continue. AA stated that a while later he ejaculated inside her and then pulled out. When he removed the condom from his penis, AA saw it was empty of semen. When she started to move her body she noticed something was seeping out of her vagina and understood it must be his semen. AA told the police she was convinced that Mr Assange, when he pulled out of her, broke the condom by the glans and then continued the intercourse until he ejaculated.

 

The third accusation in respect of AA is set out as follows in the EAW:

 3. Sexual molestation

 On 18 August 2010 or on any of the days before or after that date, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity i.e. lying next to her and pressing his naked, erect penis to her body.

AA’s statement on this, as summarised by the High Court, was as follows (H99-100):

In her statement describing offence 3, which is alleged to have occurred some days later on 18 August 2010 or (in the revised translation) on or about 18 August 2010, AA stated that after 12/13 August 2010 they did not have sexual intercourse again. AA said that Mr Assange tried to make sexual advances towards her every day thereafter. For example he had touched her breasts. She rejected him on all occasions. He accepted these rejections.

During this time, however, she continued to sleep in the same bed as Mr Assange. When they were in the same bed on 18 August 2010, he suddenly took all his clothes off from the lower part of his body and rubbed that part of his body and his erect penis against AA. She had felt this was very strange behaviour and awkward. After this, she no longer slept in the same bed as Mr Assange, but moved to a mattress on the floor.

 

The final accusation is from the other woman, SW.  This is stated in the EAW as follows:

4. Rape

On 17 August 2010, in the home of the injured party [SW] in Enkoping, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep. was in a helpless state.

 It is an aggravating circumstance that Assange. who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used. still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party’s sexual integrity.”

The High Court summarised SW’s statement as follows:

120.         Offence 4 was based on the complaint of SW made at a hearing on 26 August 2010. The fairness and accuracy of Offence 4 related to SW’s account of what happened on 17 August 2010. It was submitted that, if that part of her statement relating to 17 August 2010 was read in its entirety, a fair and accurate description of the conduct would have made clear her consent to sexual intercourse or alternatively a reasonable belief on his part that she consented.

121.         In her statement SW said that she had been captivated by Mr Assange when she had seen him in a TV interview. She had attended a lunch with him and others on 14 August 2010. He had flirted with her over lunch and they had gone out together ending up in cinema where they kissed and fondled. She contacted him on 16 August 2010 and invited him to her house. In the bedroom he took her clothes off; they were naked together on the bed and engaged in sexual foreplay on the bed. He rubbed his penis against her. She closed her legs because she did not want to have intercourse with him unless he used a condom. After a period of some hours, he went to sleep. For a long time she had lain awake, but then she also fell asleep. They then had sexual intercourse with him using a condom. They fell asleep and woke and had sex again. They had breakfast. They had sex again with a condom only on the glans of his penis.

122.         Her statement then describes in some detail the conduct that forms the basis of Offence 4. She fell asleep, but was woken up by his penetration of her. She immediately asked if he was wearing anything. He answered to the effect that he was not. She felt it was too late and, as he was already inside her, she let him continue. She had never had unprotected sex. He then ejaculated inside her.

 

This post is for the convenience of those following the case only, and it is not intended to provide any information not already in the published judgment.

 

COMMENTS MODERATION

Comments are pre-moderated. No purely anonymous comments will be published; always use a name for ease of reference by other commenters. Other comments published at my absolute discretion.
No post naming the complainants or in anyway attacking them will be published.

My Supplementary Evidence to the Leveson Inquiry

Below (without paragraph numbers) is my supplementary evidence to the Leveson Inquiry.

 
This supplementary witness statement is provided in accordance with the section 21 notice served on me under a letter from the Inquiry dated 29 June 2012. I have previously given written and oral evidence to the Inquiry.

I am the author of the Jack of Kent blog.  I also am a journalist for the New Statesman and other publications, usually on the internet.  I have done relatively little print journalism.  In addition, I am a qualified solicitor with a commercial and media practice in the City.

My blogging and journalism has included the promotion of the Simon Singh libel case (which led to a Court of Appeal victory and a draft defamation bill) and the “TwitterJokeTrial” case (which is currently before the High Court, and where I am also solicitor), the unmasking of the journalist Johann Hari as “David Rose”, the discrediting of the health and safety arguments used by St Paul’s Cathedral against the “Occupy” campers, publishing the Wikileaks “non-disclosure agreement”, and the exposure of the “NightJack” email hacking by the Times newspaper.  I have also given evidence to the joint parliamentary committee on privacy and super-injunctions.

I provide this statement only in my capacity as the author of the Jack of Kent blog though it pulls on my wider experience and knowledge of the practice and law of media regulation.
 
“Freedom of the press”

The Inquiry will have seen or heard the phrase “freedom of the press” a number of times in the evidence which has been provided to it.  If the Inquiry has not done so already, it may be useful for the Inquiry to consider the historical background of the phrase and how its meaning may have changed.

The Oxford English Dictionary dates the phrase “freedom of the press” to around 1661 to a pamphlet by Roger L’Estrange, who participated in the newspaper licensing debates that we now associate mainly with John Milton and his Areopagitica of 1644.  (Milton himself appears not to have used the phrase.) The phrase is also, of course, included in the First Amendment of 1791 to the American Constitution, which states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

 

The “Press” as we now understand it developed mainly in the mid to late nineteenth century, and popular mass daily and Sunday journalism primarily emerged in its familiar form in the early twentieth century.  Because of the familiarity of this (capital-P) Press, the phrase “freedom of the press” has come to mean the general rights of those who happen to be employed by or in control of newspapers, or “Fleet Street”).  However, that could not have been what the phrase meant in 1661 or 1791 as the Press did not exist as such.

What was meant by “freedom of the press” was not the Press of Fleet Street but the right of any person to (literally) have access to a press, that is to a means of publication to the world (to publish here meaning to make public).

In other words, any person should not only have the right to express themselves freely to those around them but also to publish information to the public at large.  It was thereby a right for pamphleteers to mass produce tracts for wide distribution.

Being able to publish (rather than just to communicate and express oneself to those currently around you) is a powerful right, especially against those in government or otherwise dominent.  Before broadcasting or mass journalism, it was the only means by which the individual could often tell truth to power.

If “freedom of the press” is formulated as freedom to publish to the world then its application to the modern phenomenon of blogging, tweeting, and other forms of internet-based activity is obvious.
The Inquiry should not take the rhetorical and intellectual force of the phrase “freedom of the press” to mean just the rights and liberties (and privileges) of the Press of Fleet Street.
 

What does “regulation” mean?

I have not been involved in the preparation of Lord Black’s submission on self-regulation.  I would not expect to be involved in the process even if it was in place or would I even expect to be invited.
However, as someone who has followed the Leveson Inquiry closely and as a previous witness, there are some general points I would like to offer on the topic of regulation.

First, it is important to be precise as to what is actually meant by “regulation” before considering “self-regulation”.

For there to be meaningful regulation in any given situation there must be a state of affairs different from there being no regulation at all.

Here it is my view that regulation does not mean that certain unwanted acts and omissions are somehow extinguished as if by magic.  It instead means that in the event that there are specified situations then there are particular and predictable consequences.  The benefit of any regulatory system is that any entities to which the regime applies can (literally) regulate their conduct accordingly.

Accordingly, to be regulated means that one would be able freely to do certain (but unwanted) things but for the application of a regulation.  If an entity is still able to act freely despite an apparent “regulation” then it is not in any meaningful way being regulated.  It is regulation in name only.  It is “non-regulation”.

By not being able to act freely, I mean that if a regulated entity does not comply with an applicable standard then there would be a consequence. If there are no consequences then there is again nothing which can meaningfully be called “regulation”.

 

“Self-regulation”

Therefore, for “self-regulation” to be meaningful it must describe a situation different from there not being any regulation at all.   Self-regulation cannot be the same as “non-regulation”.  There must be certain things which have particular and predictable consequences.

It then follows that a self-regulated entity cannot act freely as if there are no regulations at all, and a self-regulated entity should receive a sanction for non-compliance with a standard.

Some of those calling for “self-regulation” of the press appear to be proposing what in reality would be a regime of “non-regulation”.  There would be nothing to stop newspapers doing whatever they want under the general law of the land and no consequences for them for doing so.  There is nothing inherently wrong with such a proposal; but it is not “self-regulation” or any form of regulation at all.

However, regulation does not mean there has to be a formal regulator or even published codes of conduct.  As long as the entity knows that certain things have certain unwanted effects then there is regulation in practice if not in form.

 

“Dog eating dog”

It would appear that for a long time British newspapers did not subject each other to the same scrutiny they subjected politics or sport.  There was a general culture of “dog does not eat dog”.

In general, unethical and unlawful behaviour was tacitly tolerated in the newspaper sector when comparable activity in another industry sector would be exposed.

There are exceptions to the general statement in the preceding paragraph.  The “Street of Shame” section of Private Eye has long had the function of bringing to light alleged misconduct by newspaper proprietors and journalists.  The Inquiry will also be fully aware of the excellent work of the Guardian in uncovering the hacking scandal at News International.

It may well be that there would not have been any need for the Inquiry in the first place had newspapers investigated each other for wrongdoing.  In my opinion, that would have been a better display of “self-regulation” in action than the Press Complaints Commission.

One test for any proposal of either “self-regulation” or formal newspaper regulation should therefore be the impact it would have, if any, on the likelihood of newspapers investigating the wrongdoing of other newspapers.

 

“Statutory” is not necessarily a dirty word

A number of journalists and pundits have warned of the dangers of “statutory” regulation.

The Inquiry will be aware that any effective regulator needs to have a legal basis for investigations and other interventions.  If the power is not based in statute then it must presumably be based on contract or other form of recognised consent.

In the example of “Nightjack” it was the statutory power to compel individuals at News International to produce witness statements in response to questions that provided the material which led to the true circumstances of the email hack to come out.

Unless any proposed regulator has a statutory power to compel evidence then it is extremely difficult to see what it can achieve in any investigation.  It is a salient point that all the evidence uncovered by the exercise of the Inquiry’s statutory powers did not get uncovered by the Press Complaints Commission.  Indeed, it is impossible to see how it could have emerged other than by statutory powers.

Accordingly, if there is to be a regulator of any kind, it would seem crucial that it has the (perhaps residual) statutory power to obtain evidence, even if its powers to make sanctions are based on consent or contract.

 

Bloggers and the news media

Effective regulation also comes in other forms.  There are a number of blogs which routinely expose the bad journalism of certain tabloids or other media outlets.  These blogs can be media blogs such as “TabloidWatch”.  Or they can be science blogs such as those of Dr Ben Goldacre and Professor David Colquhoun FRS.  And there are legal blogs such as my own Jack of Kent and the blogs written by Adam Wagner, Carl Gardner, and Francis FitzGibbon QC.

Insofar as these blogs identify and correct misleading mainstream media stories then they can be said to be (in effect) performing a regulatory function.  They provide a valuable resource and their work should be better known.

The wiser news journalists work alongside bloggers in their particular fields; however, newspaper editors seem to be generally hostile and so the work of bloggers often does not reach the readership of newspapers and other news media.

Accordingly, a further test for any proposal of either “self-regulation” or formal newspaper regulation is the extent to which editors will engage with those who point out errors or sub-standard journalism either on independent blogs or by direct communication.

Blogging provides one crucial problem for any proposal of either “self-regulation” or formal newspaper regulation.  If I submit a post to a regulated entity such as New Statesman and it is rejected, then I can publish it anyway on the unregulated Jack of Kent blog.  This would also be the situation with many other journalists who have their own independent blogs.  In that situation, regulation would have achieved nothing substantial.

There may be some blogs which would agree to be part of a form of “self-regulation” or formal newspaper regulation.  However, the sheer ease with which a blog can be set up means that any proposal to “regulate” blogs will be at best problematic.  In the words of Observer columnist Nick Cohen, we are all journalists now.

Because of the phenomenon of blogging, there must be a question mark over any attempt to formally regulate the news media sector.

The effect of formal regulation would be that newspaper would not be able to publish things which a blogger would be able to do so.  The old model of regulation was very much based on “Fleet Street” – to publish something took resources and effort.  The key abuses of the tabloid sector were in the years preceding or just at the beginning of the rise of the internet.  The Inquiry must be careful not to impose a pre-1999 solution to the media of 2012.
 

Are Bloggers the same as editors?

Finally, there is an observation to be made about the letter of 29 June 2012 asking for a blogger’s views as “an editor”.

As I am not an editor of anything in any formal way, though I do have my own blog, I sought clarification as to why I had been asked to give such further evidence.  I was told that my evidence was wanted in my “capacity of Editor of [my] blog”.

With genuine respect, and with courtesy, I have to say that to describe any blogger as an “editor” is not to fully appreciate or comprehend the role of bloggers.

Having a blog is not really analogous with being an editor.  A blogger is usually both the author and publisher of his or her own blog.  Insofar as editing is understood as a distinct exercise then it would be fair to say that almost all blogging is unedited (just as it is also unlawyered).  This is sometimes painfully obvious from the blogs themselves.

This is because a blogger is more akin to the pamphleteer than a newspaper editor.  It would perhaps sound absurd to talk of the “regulation of pamphleteering” or a “pamphleteers’ code of practice”.  If so, it would be just as misconceived.  Pamphleteers published under the general law of the land, and were as liable for (say) libel as any other publisher.

Although some bloggers can do journalism with their blogs (nothing stops them), blogging is not a subset of journalism.  It is more a form of advanced citizenship whenever it is used for political or media purposes.

 

Conclusions

In summary:

  1. “freedom of the press” does not mean the rights of Fleet Street but the rights of any person to publish information to the world;
  2. “regulation” does not necessitate a regulator but it does mean conduct has to be modified than what would happen with no regulation;
  3. there is reason to be sceptical of any supposed “self-regulation” as it may mean “non-regulation”;
  4. any regulator should have access to a statutory power of obtaining evidence;
  5. newspapers should not be discouraged from investigating other newspapers by the existence of a regulatory scheme;
  6. engagement by editors with bloggers should be encouraged; and
  7. any formal attempt to regulate bloggers will undoubtedly be futile given the ease with which any blog can be published.

 

 

COMMENTS MODERATION

Comments are pre-moderated. No purely anonymous comments will be published; always use a name for ease of reference by other commenters. Other comments published at my absolute discretion.

The day the Olympic Torch came to Drab

Let me tell you about a south London suburb which I know rather well.

I will not name it so as to spare it embarrassment; but if you have heard of it, the name will make your heart sink slightly.  And so for the purpose of this blogpost, I will call the place “Drab”.

 

There is not a great deal to Drab.

It has a High Street which you drive or cycle down on the way out of London to Kent or Surrey.   Few people stop in Drab High Street, and to be frank there are not many shops worth stopping for.  Most of the shops are run by local people for local people.  Other than a Boots and a small Sainsbury’s, you would be hard-pressed to find a familiar retail name.

The High Street looks dire, with blocks of stained concrete almost everywhere you look, dominating the surviving Victorian and Edwardian shop fronts.  There is nowhere to park and nowhere really to walk.  The pubs are declining, other than a welcome Wetherspoons at the furthest extreme of the High Street.

 

But this morning Drab was something rather different.  The High Street was transformed.  Instead of the lonely pavements, there were hundreds of people standing and talking, with flags and balloons.  It was such a mix, and the crowd was genuinely cheerful.  It helped, of course, that it was the first sunny day of the summer.  The weather did not explain everything though; there was a sense of occasion.  Something special was happening down Drab High Street.

When I heard the Olympic torch was coming through Drab, I was bemused and cynical.  One imagined a few hardy patriots and some bored school children; with telling gaps between the people on the roadside.  I guessed it would all be a bit contrived, rather like the supposed ‘jubilee’ street parties.

I was wrong.  It was jolly and heartening.  The various shops put stalls on the pavement; the owner of the music shop set up his amplifier outside and played some Deep Purple; the Salvation Army band performed in front of a funeral directors which was in turn covered in bunting; children played; a group of enthusiasts danced through the crowds promoting some cause or other.

And then there was the procession.  The advance police motor bikes were cheered, and then a police van.  The officers nervously waved back.  A red double decker bus was cheered – it did not matter it was not actually part of the procession but a “driver on instruction”.  By the time the torch was about to come, the crowd was roaring.  Police motorcyclists slowed down and high-fived school children.

The corporate floats were received gleefully.  People even waved and smiled at the bus sponsored by LloydsTSB.

Yes, in the Britain of 2012, people were applauding the police and a bank.

 

The poor man with the torch then appeared, mobbed by onlookers with mobile phones and cameras.

He alone had the honour of carrying the Olympic torch through Drab.

If he was a local man, he must have thought he was suddenly jogging on a different planet.

 

Then it ended.

The crowds dispersed, children bounced their inflatible gimmicks off each other, and adults moaned of the heat and chatted about the great atmosphere as they walked down the side streets.

 

And the High Street returned to Drab.

 

 

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Comments are pre-moderated. No purely anonymous comments will be published; always use a name for ease of reference by other commenters. Other comments published at my absolute discretion.

Making Tea for Alan Turing

Today is the centenary of the birth of Alan Turing.  Below is my 2009  post which was prompted by an apology by the then Prime Minister Gordon Brown.  

The 1885 law under which he was prosecuted was one of the most sickening and intrusive ever enacted by parliament.  A shameful part of English legal history.

PLEASE SIGN THE PETITION TO HAVE TURING PUT ON THE NEXT TEN POUND NOTE.

 

 

One of the most brilliant people I have ever met said that – had she been required to do war work – she would have happily spent it making tea for Alan Turing.

 

Turing was born in 1912, and so he could well have lived into our own times (he was born the day before Brian Johnston, the cricket commentator).

He could even be alive today, celebrated as a national treasure for his incredible contributions to the war effort, to mathematics, and to computer science.

However, Turing died in 1954. The circumstances pointed to suicide (though some disputed this). He was found dead with a part-eaten apple, laced it seems with cyanide. The choice of an apple may be significant, as it has been claimed that his favourite fairy-tale was Snow White.

Alan Turing’s death in turn has become significant.

In essence: he died because he was a homosexual; he died because of the vile laws against male homosexuality which were then in force; and he died because of the misconceived “treatment” which was then deemed appropriate (by some scientists and medical doctors, sadly) for the “illness” of homosexuality.

 

In 1952 Turing reported a burglary. In the investigation and case which followed the police became aware that Alan Turing had homosexual relationships.

Technically, homosexuality was not a crime – at least not directly.

Buggery was a crime, under the 1861 Offences Against the Person Act (which is still actually in force for Grievous Bodily Harm, Actual Bodily Harm and – oddly – Bigamy, which the law also regards as an offence against the person). But few men were actually tried for or convicted of the crime of buggery.

 

And “gross indecency” was a crime.

Turing was prosecuted under the notorious section 11 of the Criminal Law Amendment Act 1885. This was the same offence under which Oscar Wilde was tried.

Under section 11, an offence of “gross indecency” could be committed by two male persons, either in public or in private. This was taken to mean by the police and the courts to mean all consensual intimate sexual behaviour between men.

Section 11 was not a deeply considered piece of legislation; indeed its enactment was almost an accident. In one late parliamentary sitting, a (so-called radical) MP proposed an amendment which was accepted almost on the nod by the frontbench. There was no debate, either in parliament or otherwise.

Nonetheless, section 11 would criminalise all meaningful male homosexual intimacy for eighty years. Rather than the remote threat of a prosecution under the buggery offence, any evidence or admission of physical closeness – even in private – would lead to prosecution, a sentence, and a criminal record. It was regarded as the “blackmailer’s charter”.

 

Alan Turing was charged; he admitted his guilt and was convicted. Instead of imprisonment, he was able to opt for “treatment”. He was given hormones to suppress his libido; the side effects were breast development and depression.

In effect, Alan Turing was chemically castrated.

 

Alan Turing was a hero and a genius, but this “treatment” was also inflicted on many other gay men prosecuted under this legislation. Turing’s awesome achievements do not by themselves warrant him receiving an apology for this shameful official conduct; there should be an apology for every gay man who was prosecuted.

All of them deserved better.

 

It was good that the person who wrote Gordon Brown’s apology noted this, though only in passing:

“While Turing was dealt with under the law of the time, and we can’t put the clock back, his treatment was of course utterly unfair, and I am pleased to have the chance to say how deeply sorry I and we all are for what happened to him. Alan and the many thousands of other gay men who were convicted, as he was convicted, under homophobic laws, were treated terribly. Over the years, millions more lived in fear in conviction.”

[Emphasis added – and note how “Turing” becomes “Alan” in two sentences!]

 

Of course, a posthumous apology or pardon is always a mere gesture.

Nonetheless, the greatness of Turing – and the undeniable sheer importance of his work in the war and in computers and the appalling injustice done to him – must force anyone to reconsider using the law to criminalise homosexuality, or to regard homosexuality as to be treated as an illness.

Such people still exist.

 

The Prime Minister’s apology – an official acknowledgement of official wrongdoing – makes it just that more difficult for such bigots to prevail again.

The apology also reminds us just how recent “modern” times are.

 

COMMENTS MODERATION
Comments are pre-moderated. No purely anonymous comments will be published; always use a name for ease of reference by other commenters. Other comments published at my absolute discretion.

Assange: would the rape allegation also be rape under English law?

Many people confidently assert that the rape allegation in Sweden against Julian Assange would not be an allegation of rape under English law.

 

Assange’s legal team argued this point at both the Magistrates’ Court and on appeal at the High Court.  Ther submission was that “Offence 4” (the fourth of the four alleged offences).  Offence 4 is stated as follows:

4. Rape

On 17 August 2010, in the home of the injured party [SW] in Enkoping, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep was in a helpless state.

It is an aggravating circumstance that Assange who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party’s sexual integrity.

 

 

The Magistrates’ Court ruled (emphasis added):

 

The position with offence 4 is different. This is an allegation of rape. The framework list is ticked for rape. The defence accepts that normally the ticking of a framework list offence box on an EAW would require very little analysis by the court. However they then developed a sophisticated argument that the conduct alleged here would not amount to rape in most European countries. However, what is alleged here is that Mr Assange “deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep, was in a helpless state”. In this country that would amount to rape.

I have not thought it necessary or desirable to consider extraneous material. I have looked only at the language used in the warrant. The parties have taken me to some further information in the bundle. This appears to consist of an interview with the complainants. I am not sure if this information provides the full extent of the allegation. Even if it does, however, it is unnecessary to consider this material in this context. Section 64(2) applies.

As I am satisfied that the specified offences are extradition offences I must go on to consider whether any of the bars to extradition specified in section 11 are applicable. No bars are raised and none is found.

 

The High Court decided the appeal on the same point:

It is clear that the allegation is that he had sexual intercourse with her when she was not in a position to consent and so he could not have had any reasonable belief that she did.

 

(See paragaphs 122 to 127 of the judgment for context.)

 

Some may say, as a matter of opinion, that the allegation should not be regarded as rape.

 

And it is certainly the case that the allegation, if Assange is ever charged and prosecuted, may not be proved when the evidence is properly examined.

 

But there is no doubt that, as a statement of positive law, English courts have held – twice – that the relevant allegation would also be an allegation of the offence of rape in English law.

 

(Post script – this post by the experienced sexual offences lawyer Felicity Gerry explains in general terms why “sleep rape” would be rape under English law.)

 

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Comments are pre-moderated. No purely anonymous comments will be published; always use a name for ease of reference by other commenters. Other comments published at my absolute discretion.

 

 

Complainants of rape and sexual assault have rights too: the desperation of Julian Assange

Julian Assange today sought refuge in the London Embassy of Ecuador.   It is reported he is seeking political asylum.

 

Assange is, of course, entitled to assert whatever legal rights he has in resisting extradition to Sweden to answer serious allegations of rape and sexual assault.

 

But every delay, every evasion, of Assange in answering these allegations is also a further delay in dealing with the allegations.

 

It appears to me that Assange’s ploy is just another desperate stunt to frustrate and circumvent due process for investigating these allegations.

 

The allegations of rape and sexual assault against Assange are serious, and they require answering.

 

There is something which should not be forgotten in all this.

 

Complainants of rape and sexual assault have rights too.

 

 

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The Origin of the Polity

There is one question which fascinates me about the history of political thought.  It has fascinated me for about 20 or so years.

 

The background to the question is as follows: once upon a time, perhaps up to about 20,000 years ago, humans presumably conducted their politics much like any other mammal.  There would be a group, and someone would become dominant.

 

Within this group – a troop or a tribe – power would be exercised entirely on a face-to-face basis.  From time to time, a dominant figure  would emerge, and that figure’s dominance would be on the basis of personal qualities or relationships.

 

Let’s call this figure ‘Silverback’.

 

If Silverback lost his (or her) life, or face, then their power would be lost, and a new dominant figure would then emerge.  And that new figure’s power would in turn rest upon their personal qualities and relationships.

 

If this was the case, then there would be no wider concept of “leader” or “king”.  It would just be that Silverback or whomsoever was dominant, and so they got their way.

 

But at some point – in an event which could be regarded as the political-linguistic equivalent of making a stone axe or controlling fire – there seems to have developed the abstract concept of political power, in the form (it would seem) of kingship.

 

As such, a figure – let’s call him Arthur – would have power not just because of personal qualities or relationships but also by reason of both he and his subjects sharing a concept of political power.

 

Arthur would be supported because he was king (or chief or general) as well as – or perhaps despite of – the force of personality in a web of face-to-face relationships.

 

Against this, the question which has long puzzled me is this: was the development of such an abstraction inevitable?

 

Or was it a mere ‘contingency’, as some philosophers would say.

 

Could human civilization have still developed without the notion of kingship (or similar), with a series of Silverbacks instead?

 

Indeed, could we have a society of any size or complexity (beyond a troop or tribe) without there being any abstract notion of political power?

 

A society, that is, without any conception of a ‘polity’?

 

And, if so, how different would such a society be from what we have today?

 

Any thoughts welcome.

 

 

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George Orwell and the ridicule of extremists

Today’s mockery on Twitter of the Creeping Sharia hashtag prompted my friend Andrew Haydon to tweet:

“Love how #CreepingSharia amply demonstrates that there is no Defence more English than taking this piss out of extremists. Of any stripe…”

 

This in turn reminded me of George Orwell’s wise comments on laughing at fascists:

“One rapid but fairly sure guide to the social atmosphere of a country is the parade-step of its army.

“A military parade is really a kind of ritual dance, something like a ballet, expressing a certain philosophy of life.

“The goose-step, for instance, is one of the most horrible sights in the world, far more terrifying than a dive-bomber.

“It is simply an affirmation of naked power; contained in it, quite consciously and intentionally, is the vision of a boot crashing down on a face.

“Its ugliness is part of its essence, for what it is saying is ‘Yes, I am ugly, and you daren’t laugh at me’, like the bully who makes faces at his victim.

“Why is the goose-step not used in England?

“There are, heaven knows, plenty of army officers who would be only too glad to introduce some such thing.

“It is not used because the people in the street would laugh.

“Beyond a certain point, military display is only possible in countries where the common people dare not laugh at the army.”

 

Being able to openly ridicule and mock those in power – or seeking power – is perhaps a more important right than many realise.

 

 

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The national security and anti-terrorism party

What is a political party?

 

So familiar are we with the established, big-P political parties, one may miss the real parties which dominate our political system.

 

A party, as Burke almost said, is a body of people united for promoting by their joint endeavours the national interest upon some particular principle in which they are all agreed.

 

Applying this neutral definition, one quickly sees the real parties: there is a privatisation party, pushing for “market-based” reforms in ever-more unlikely situations; there is a defence party, always urging more military spending; there is a European party maneuvering so that more decision- and rule-making is done on a EU level; and so on.

 

Instead of, say, three main parties and some fringe ones, what we have in effect are dozens of parties which dominate public bodies and which all remain in office, regardless of elections and the politicians passing through.

 

One of the scariest and most formidable of these parties is the national security and anti-terrorism party, which dominates the Home Office, the police, and the “security services”.

 

It matters not for the national security and anti-terrorism party if the ministers are Labour or Tory.

 

It is irrelevant that there is a coalition with Liberal Democratic votes supporting it.

 

This party will keep on with the ratchet-effect of more illiberal legislation.

 

Today this illiberal party is reported as having their latest success: the Coalition is now warm to monitoring emails and social media usage.

 

The Home Office is quoted as saying:

It is vital that police and security services are able to obtain communications data in certain circumstances to investigate serious crime and terrorism and to protect the public.

 

But they may as well be saying:

It is vital that police and security blah obtain data blah serious crime blah and TERRORISM KLAXON blah and to protect the public.

 

 

The depressing thing is the sense of sheer relentlessness in the promotion of such policies; and one knows that the Tories will generally nod-a-long, just as the Labour politicians did before them.

 

Having the Liberal Democrats in the Coalition seems to be making no difference at all.

 

 

Fortunately, for most parties there is an opposite party, even if there is often not any equality of arms.

 

The human rights and civil liberties party still exists, and will challenge this illiberalism in the courts and elsewhere even if the battle is lost in the legislature and government departments.

 

But what will be missing is any sense of democracy: no one can stop the national security and anti-terrorism party by voting.  The big-P parties are not providing any efficient way of making political choices by allowing us to use our vote.  This lack of alignment between the form and subtance of political parties is saddening, but it is difficult to see any way it will be changed.

 

And in the meantime, how long before the national security and anti-terrorism party entices the Coalition into reviving ID Cards?

 

 

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My Trousers and Airport Security

(Originally posted on 13 February 2011 at my old Jack of Kent site here.)

(11 April 2012 – the post below has now been featured on the Bruce Schneier security blog, and I can confirm this is a faithful account of what happened to me when I flew from Heathrow to a middle eastern country early last year. The security officer in question and his manager were employed by the airline, not the airport.)

 

 

Late one recent Saturday evening, I am standing at a departure gate at Heathrow Airport. It is the furthest gate from the main terminal, and I am flying on the last plane out.

 

By now, it is just the passengers and the airline’s own staff.  The passengers are having the final passport and boarding pass check before getting onboard: a formality after a great deal of security and bag searching.

 

Everyone is a little tired; the rest of the airport looks dark and closed down for the night.

 

“Excuse me, sir. We would like to do a search?”

“Pardon?”

“We would like you to give us your handbag and step this way.”

“OK. It is a manbag, or hand luggage. But not really a handbag.”

“Yes, sir. This way.”

 

My hand luggage is taken off to be searched again. I am now the last passenger at the gate. The flight is due to leave in about ten minutes.

“Sir, could you go behind the screen.”

There is a screen in the corner of a kiosk, in the opposite corner to where my bag is now being searched and unpacked. The young security official from the airline follows me.

 

“Sir, can you take your jacket off.”

“OK.” I take off my jacket.

“And your shoes.”

I take off my shoes.

My shoes are looked at very carefully.  I think of the shoe bomber, who also lived near Bromley.  I begin to wonder if they are profiling people from urban north Kent.

 

“Sir, your trousers.”

“Pardon?”

“Sir, please take your trousers off.”

 

A pause.

 

“No.”

 

“No?”

The security official clearly was not expecting that response.

 

He begins to look like he doesn’t know what to do, bless him.

 

“You have no power to require me to do that. You also haven’t also given any good reason. I am sure any genuine security concerns you have can be addressed in other ways. You do not need to invade my privacy in this manner.”

 

A pause.

 

“I think you probably need to get your manager, don’t you?”.

I am trying to be helpful.

 

He nods, hesitantly, and goes to get his manager, a middle-aged chap in a brown baggy suit.

 

“Hello sir.”

“Hello.” I smile.

“You won’t take your trousers off?”

“No. It will be embarrassing and humiliating. You can’t require me to do so, and you have no good reason to ask.”

 

A pause.

 

I smile again and nod encouragingly.

 

“Oh,” he says.

 

Another pause.

 

“Sir, there is actually no need for you to take your trousers off.”

“Thank you. I thought not.”

 

I put on my jacket and shoes.

“But sir, there is a problem with your handbag.”

 

I pause.

 

This is the Edith Evans moment I have waited for all my life.

 

“My manbag?”

 

“Yes sir. It will have to travel separately.”

“Why?

“We have concerns.”

 

I think of those who have teased me about my manbag, but I guess their doubts about me are not the same concerns as this security manager.

 

“You think my manbag could be dangerous?”

“It will need to go separately.”

He gives me a plastic bag with what had been the contents of my manbag.

“In the hold?”

“No, too late. It will have to travel business class.”

“My manbag is going business class?”

“Yes, sir. You can be reunited at the destination.”

 

Later I think I should have offered to swap, but I was too stunned to be so opportunistic.

 

“This way for the plane.”

I walk with the manager, me with my new carrier bag, him with my empty mangbag. We go down the slope to the aircraft.

 

“I bet this makes you feel safer?” he says.

“Actually, it doesn’t. Either security required me to take my trousers off, or it does not. Either my bag is too unsafe to travel, or it is not. I think this just shows bad decision-making. Bad decision-making by security does not make me feel safe.”

 

A pause. I am hoping he is thinking about my sensible, heart-felt words.

 

We get to the aircraft. The chief steward takes my manbag for its trip by business class. I go into economy class: I am stared at as the one who may have delayed the plane.

 

I find my seat. The chap next to me asks what happened.

“Oh, just security stuff.”

“No worries. It makes you feel safer, doesn’t it.”

 

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