Thursday, 24 February 2011

Another indecent prosecution

It must have been high-fives all round at the CPS when they managed to secure the conviction of Stephen Neale on child pornography charges. For this was not your typical story of evil paedophiles swapping disgusting images of child abuse via clandestine online networks. No computers needed to be decrypted and trawled through; no ring of deparavity has been cracked; this was not a cross-border operation costing millions of pounds and ending in hundreds of arrests. Hardened police officers and prosecuters will not have their nights disturbed by pictures of raped babies or drugged and screaming pre-teens appearing unbidden before their consciousness. On the contrary, the pictures that 59-year old Neal were convicted for possessing were in books - books that are freely and legally available, one of them on sale in all good branches of Waterstone's.

In a rare outbreak of sanity in this area, Neal's conviction has been quashed by the Court of Appeal. Lord Justice Richards described it as "very unfair" that a man had been charged with possessing pictures that were freely on sale. As indeed it is. To require purchasers to individually satisfy themselves as to the legality of every item they purchase is to impose a quite unreasonable burden on members of the public. If something is on sale, one must be able to assume that it is legally on sale. And if it is not - as the judge pointed out - "the right way to deal with the matter is by way of prosecuting the publisher or retailer - not the individual purchaser."

But here's the strange thing. Not only was Neale prosecuted - and found guilty - for having these books (one of which, Sally Mann's Still Time, is listed here on Amazon UK), neither the police nor the CPS have made any move against the publishers or retailers. Branches of Waterstones' have not been raided. There's no reprise of the Lady Chatterley trial in prospect, this time aimed at gauging the acceptability of Sally Mann's unclothed pictures of her children. Which, incidentally, you can access easily on Google images - it does not appear that the Internet Watch Foundation has attempted to block any of the numerous sites on which they appear, as they notoriously did a couple of years ago when they were alerted to an old album cover from the 1970s which featured on Wikipedia. If the CPS were indeed seeking to ascertain the legality of the pictures on the cheap, using Neal as a test case, one would have expected some such follow-up.

Were the pictures - regardless of their widespread legal availability - legally indecent? This is a tricky question. On the one hand, the prosecution managed to persuade a jury that they were indecent - and to bring the case the CPS would have to have been satisfied that they constituted "erotic posing", which is the lowest level classification of child porn - indeed, a classification that would arguably include photographs of child celebrities that regularly adorn the pages of the Daily Mail. On the other, the Court of Appeal ruled yesterday that the trial judge had failed adequately to direct the jury on the "objective" standards to be applied when assessing indecency.

It may be wondered, though, whether an objective standard actually exists or is even possible. Sally Mann's pictures of her own naked children, legitimately regarded as art by some, will strike others in today's heightened and paranoid moral climate as borderline kiddie porn. While the photographs were clearly not sexual in intent (as I have argued, where the person photographed is a child, by definition only a paedophile would see it as sexual) the jury's verdict may suggest that such nuances are increasingly lost on the general public. This is a thought almost as disturbing as the CPS's decision to prosecute.

Consulting the relevant CPS guidelines, I find this:

Level 1 images continue to refer to posing and the question has sometimes been raised as to whether that means that non-posed photographs, particularly those that could be construed as naturist photographs, are indecent or not. It is important to note that the sentencing guideline is relevant solely to the issue of sentence and not the law of what does, or does not, amount to an indecent photograph. In R v O'Carroll [2003] EWCA Crim 2338 the Court of Appeal specifically stated that the original levels put forward in Oliver and, by implication, the revised levels in the definitive guideline do not bind a jury as to what is, or is not, indecent. The photographs in O'Carroll were naturist photographs and his conviction for importing indecent photographs was upheld. Accordingly non-posed photographs that are indecent can form counts on an indictment.


This is hardly a satisfactory state of affairs - especially since the test of indecency typically put before a jury is whether an image offends "recognised standards of propriety". In O'Carroll, the judge made the visibility of genitalia the test of decency, despite the fact that the pictures featured very young children playing on a beach and were thus clearly non-sexual. The law it seems (and perhaps wider society as well) now takes its standards of what is and is not sexual from the warped perspective of the paedophile, rather than than of a normal healthy adult.

It's not clear why the CPS ever thought it appropriate to bring charges against Stephen Neal, or why even at this late stage they were still seeking a retrial (the judgment doesn't appear to be publicly available, so I'm relying on the report in the Telegraph). Perhaps a clue lies in an additional charge, which was dismissed, that Mr Neale had in his possession an "extreme" DVD. The charge was wrongly brought, but the contents of the DVD had already been described to the jury before it was withdrawn and it is likely to have prejudiced them. Certainly, Lord Justice Richards wondered if the successful charges "would have been brought against him but for his prosecution in relation to the DVD". This would be an interesting reversal of the usual pattern by which "extreme images" charges have regularly been tacked onto more serious ones of child pornography, resulting in a large number of uncontested convictions. But was the "extreme" DVD (whatever it was) the source of police interest in Mr Neale, or did his house come to be raided by them for some other purpose entirely? It would be interesting to know the answer.

In any case, it's hard to understand why the CPS continues to regard cases such as this either as in the public interest, or as an appropriate use of public resources.
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Friday, 18 February 2011

Johann Hari is right: there's no place for bishops in a modern Parliament

It is depressing, if unsurprising, to learn (via Johann Hari) that under proposals currently being considered to reform the House of Lords, Anglican bishops will not be stripped of their anachronistic right to interfere in the democratic process. Rather, in a quintessentially British piece of "modernisation", their numbers will be augmented by assorted rabbis, imams, lamas and whatever Sikh or Hindu equivalent might be nominated. That's the way we do things in Britain, I'm afraid. Abuses and anomalies are rarely swept away; rather those currently outside the system are co-opted, their acquiescence bought off with sweeties and baubles; the circle of elite patronage is subtly extended, and this is made to look like radical change.

This is not just cynical, it is profoundly dangerous. It is, after all, how the fairly innocuous, historic provision of church primary schools (most of which - and I attended one - were secular in character if not in name) has been turned into an ever-expanding and divisive sector of "faith schools" in which ever ethnico-religious community must have its centre of ghettoised instruction funded by the state.

Extending the religious complexion of the Bench of Bishops - perhaps increasing their numbers, probably boosting their "legitimacy" and thus power - may seem like a gesture towards pluralism, an advance in "diversity" and therefore a progressive move. But an abuse does not cease to be an abuse purely because more people are benefiting from it. Rather it becomes a more entrenched and insidious abuse. In this case, the proposal diverts attention away from the true question - what are the bishops still doing there? - towards a false debate about which religious leaders ought to be represented in Parliament.

The existence of bishops in the House of Lords may or may not be pernicious in itself. Hari argues that it is, pointing to "theocratic" attempts to stymie reform on such matters as assisted suicide and gay rights. Others would hold the instinctive liberalism of most establishment Anglican leaders against them. (Recently, the bishops surreally intervened in support of the Yes campaign for AV, as if the electoral system were somehow their business. And if the Church of England be a bastion of hardline religiosity, what does Hari think will happen when the imams show up?) But whether they be left-wing or right-wing, progressive or reactionary, Protestant or Catholic, the main objection is surely that, in this day and age, they should be there at all.

They have no mandate, after all, except the mandate of history. Hari is wrong to blame Henry VIII for their presence; it is thanks to him that they are Anglicans, not that they are there. And it is a bit silly of him to compare our set-up with that of revolutionary Iran. The ayatollahs' power is recent and real; it reflects the nature of the modern Iranian state, which is dominated by a military-theocratic complex. If they were sidelined the regime they serve and embody would be at an end. The bishops in the House of Lords are there because in the Middle Ages, when the concept of Parliament was born, the Church - along with the aristocracy and the feudal knights and merchants represented in the Commons - was one of the major powers in the land. It would have been absurd for an Edward III to have summoned a Parliament without bishops as it is absurd for Elizabeth II to summon a Parliament which contains them.

Along with the hereditary peers, the Lords Spiritual were a living historical relic, tolerable only so long as no-one paid them much attention. But the hereditary peers are gone. Their banishment - and the radical transformation of the lord chancellorship, another quaint survival - marked the death-knell of constitutional complacency. Henceforth, appeals to tradition, to the slow accretions and wisdom of history, to the advisability of not tampering with what has worked in the past, do not pass muster. Every institution, every consitutional rule, must now justify itself in the light of contemporary belief in rationality, accountability, democratic principle and transparency. Perhaps this is a shame. In my moments of palaeo-conservatism I think it probably is. But we are where we are. And in a modern secular state reserving Parliamentary seats for unelected representatives of religious opinion is insupportable.

This is why any extension of the religious representation in the second chamber would be profoundly regressive - far more so even than leaving the 26 Anglican prelates untouched. The latter course would be at least negligent. What is apparently being proposed is a deliberate insertion of a theocratic element into a 21st century constitutional settlement. Our leaders - Hari singles out the avowedly atheist Nick Clegg for censure here - would be saying, in effect, that having looked into the matter, queried whether a modern West European legislature should give ex-officio seats to priests and mullahs, they have decided that indeed it should. And have thought themselves liberal and progressive for reaching such a conclusion.

What a very strange country this is.
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Thursday, 17 February 2011

The fundamentally fraudulent nature of the Yes to AV Campaign

So there is to be a referendum on May 5th. A fundamentally indifferent electorate is to be offered the choice of changing a flawed, but rough-and-ready and historically resonant system of first-past-the-post with a monstrosity dubbed "alternative vote", or AV. The Yes campaign will present the proposed alternative as providing a "fairer" result in which "every vote counts" and the people's will is better reflected at Westminster. They will hold up the change - offered as part of the Coalition deal - as a decisive shift in power away from political elites and towards voters, as an answer to the mistrust and disconnect that has plagued British politics in recent years.

In a fundraising email last month, Eddie Izzard claimed that AV would end "seats for life", remove the impression that politicians ignore the views of voters, and that first-past-the-post was the reason that "MPs often seem to be a law unto themselves."

None of these things are true. The Yes Campaign - at least, those members of it who believe in electoral reform, rather than merely their own political self-interest - know that they are not true. As they are well aware, AV is possibly the worst method for choosing a Parliament it is possible to devise.

Lee Griffin, who campaigns vocally for AV on Twitter, admitted to me in a comment response on his blog that "FPTP and AV are both nasty systems that propagate parties over policy". Electoral reformers want STV, or some other basically proportional system that would result in a Parliament that reflected the votes cast nationally. AV does not do that. It might produce more hung Parliaments. On the other hand, when it did produce majority governments it would tend to exaggerate the size of the majority. Analysis suggests that AV would have given Tony Blair a larger majority in 2005 - an election in which FPTP gifted him, with barely a third of the votes cast, a majority of over 60 seats. At this election, by contrast, it would have given Labour more seats and the Conservatives fewer - despite Labour achieving a smaller share of the popular (or, under AV, first preference) vote than at any time since the 1920s.

Or as Chris Huhne put it almost exactly a year ago:

Under AV, as under first-past-the-post, there would continue to be safe seats where the MP will effectively have a job for life... Not only does AV fail to give voters the power they should have, but it also fails to remedy the unfairness of the present system... AV can be even more disproportional [than FPTP] when there are big swings from one side to the other such as in 1997 or 1979: under AV both Tony Blair and Margaret Thatcher would have had bigger majorities. The electoral system would continue to be like an ill-fitting corset attempting to squeeze all the diverse strands of opinion in our society into an inappropriate and deeply uncomfortable shape.


For some reason, he's not saying that now.

If FPTP is a bad system, AV is a worse one. But if FPTP is a good system, AV manages to neutralise its advantages while exaggerating its flaws. If STV or some other proportional system is good, then AV - being less proportional than FPTP - can only be a step in the wrong direction. Far from eliminating tactical voting (as I explained last year) AV in fact institutionalises it. Why, then, are supporters of electoral reform so enthusiastically embracing this appalling proposition? They cannot - do not - regard it as any more than a stop-gap. Cynically, they calculate that while AV would not actually be an improvement it would create an appetite for constant tinkering with the electoral system. (If, that is, proportionality is truly what matters to them, rather than creating the conditions for permanent left-of-centre government.)

Supporters may respond, sotto voce, that while AV is not the change they seek, it is the only change on offer and they must therefore pretend to like it. But change for change's sake is pointless. This one would be costly - some have claimed up to £250 million - money arguably worth spending on a durable change for the better, but simply wasted on a temporary change for the worse.

It's a dangerous strategy, not only because after the switch to AV most members of the public - who have better things to do with their lives than obsess about the minutiae of electoral systems - the argument would seem to be over. They would validly ask why, since they won their referendum, the reformers were still not satisfied. And the only plausible answer will be that proponents of reform are less interested in popular representation than in advancing their own interests. Far from increasing trust in politics, it will lead to even more mistrust. And rightly so.

Izzard, in the aforementioned email, referred to the upcoming referendum as a "once in a generation" chance to change the system. In that at least, he was right. But AV is, by any reasonable standard, the wrong change.

AV is a reasonable system for choosing an individual - a mayor, say - because it ensures that the winning candidate has at least the acquiescence (though maybe not the active support) of more than half those who bother to vote in the election. If we had an elected president, AV would be a better method than FPTP for choosing him or her. But we have a Parliamentary system, in which a "general election" is a composite of hundreds of individual elections. Under AV, individual MPs will arguably be able to claim a greater mandate from the voters (arguably, because the system weights first preferences and transferred second preferences equally, allowing lowest-common-denominator candidates to win through against those with more whole-hearted backers). But the resultant Parliament might well be less reflective of the national spread of opinion than FPTP would have been - to say nothing of a fully proportional system.

Paradoxically, however, a brutally majoritarian result (say, an increased Labour majority in 2005) might be seen as somehow more legitimate than the more nuanced result produced by the old system, because of the illusion of "fairness" in each individual seat. The counting of second preferences would have given the winning party not just more seats but a greater perceived (though not actual) mandate, as voters who grudgingly gave the party their second preference are lumped together with actual supporters. It could therefore set about its work unembarrassed by the derisory share of the vote (the first preferences) it actually received, shielded from the evidence of its own unpopularity.

Genuine supporters, as well as opponents, of electoral reform should vote NO on 5th May.

UPDATE: My attention has been drawn to this remarkable evidence of how the Electoral Reform Society has attempted to conceal its original objections to AV as a method for electing a legislature. It quite proves my case. A deleted page from their website - written in 2008 - asserted that AV was "not suitable for the election of a representative body". The Society also claimed - back in 2005 - that AV "would do little to restore the legitimacy of government" and "would not produce fairer representation". They were right then. What has changed?
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Monday, 7 February 2011

Why David Cameron is wrong about "state multiculturalism"

David Cameron's denunciation of "state multiculturalism" has been lauded in some quarters, damned in others. Both by predictable voices. In his Munich speech he criticised the "muddled thinking" that has led some parts of the Muslim community to become dangerously isolated from the rest of British society. But, judging by the text of his speech in Munich yesterday, he would appear to have very little idea - or be unwilling to admit - what "state multiculturalism" actually is. This is what he said:

Under the doctrine of state multiculturalism, we have encouraged different cultures to live separate lives, apart from each other and apart from the mainstream. We’ve failed to provide a vision of society to which they feel they want to belong. We’ve even tolerated these segregated communities behaving in ways that run completely counter to our values.


But state multiculturalism is not a "doctrine". Multiculturalism is: broadly speaking, it is the contention that no-one culture is superior to any other, and that the idea of a "host community" whose values, practices and norms should take precedence over those of minority groups is to be rejected. It is that view of multiculturalism that Cameron was attacking. He was right to do so. But he is wrong to suggest that such a doctrine has been propounded by the state as an act of deliberate policy.

State multiculturalism is something different. Fundamentally, it is a job creation scheme. Its purpose is to provide work for quangos, bureaucrats, consultancies, administrators, target-setters, framers of legislation, enforcers, propagandists, advertising agencies, poster-designers and a high proportion of staff at the Guardian and the BBC. It provides work for Trevor Phillips. It also provides work for Melanie Phillips (for where would she be without multiculturalism to denounce?) State multiculturalism is premised, not on denying the idea of a national culture, but on using the laudable concept of non-discrimination to justify interference in ever-more areas of public, corporate and even private life, not because it wants to build a better society (although many of its practitioners have that belief) but because it provides its practitioners with a livelihood. Basically, it is a parasite. Like most successful parasites, it can thrive only at the expense of its host. And it will never be possible to persuade multiculturalists that they are wrong, for not only their personal philosophy but their homes and incomes depend upon keeping the show on the road.

Until he grasps this basic point, David Cameron's attempt to undo the effects of twenty years of state-sponsored multiculturalism - whose ill-effects his accurately describes - will be doomed to failure. Read the rest of this article