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Why courtroom camera may still lie.

Evidence given by witnesses in jury trials should be filmed, says Sir Igor Judge, the appeal court judge with the official title, head of criminal justice. Sir Igor's motive is wholly good - to prevent miscarriages of justice. Yet I do not believe his proposal would have that result. His argument, outlined last week in a speech marking the 10th anniversary of the Criminal Cases Review Commission, is that an appeal against a jury's conviction may require appeal judges to decide on the truthfulness of a witness.
They have a transcript of the evidence, but that gives no indication of the body language and demeanour of the witness, or whether, as Sir Igor noted, they hesitated unexpectedly or gabbled through the evidence. His solution is to video and keep witnesses' evidence, in case of an appeal.I have two main reservations.
The first, which we all know from personal experience and is no different in the courts, is that liars are often very good at giving convincing evidence, while honest people may seem unsure or evasive - a trait likely to be enhanced by nervousness when giving evidence in the intimidating atmosphere of a court. The hesitations or gabbling Sir Igor mentions are far from being reliable indicators of lying. In films, yes; in real life, less so.
My other objection is more fundamental. One of the main justifications for having jurors is that they reach their decisions using common sense and their experience of everyday life, which includes the ability to assess whether someone is telling the truth.  

Indeed, the argument that juries ought not to be used in trials where the evidence is complex (fraud cases, for instance) attracts the response - not least by judges themselves - that even apparently complicated cases often boil down to deciding who is telling the truth, something juries are amply competent to do.


Two or three appeal court judges have no greater claim to being right than 12 jurors. And a court should not reverse a jury's verdict merely because the judges feel differently about the veracity of a witness's evidence.


It was a safe bet Lord Falconer would lose his job as soon as his friend Tony Blair relinquished his. Indeed, Falconer chatted openly, without hint of regret, about his expected political demise. No longer. The new secretary of state for justice has had a new lease of life.

He's making clear he wants to carry on. Perhaps he has been given a hint from the future prime minister that his services will continue to be wanted.

What is certain is that acquiring a huge department, especially one which includes responsibility for prisons, has pumped him full of adrenalin, and he's teeming with ideas on penal policy - including selling off our large, stern Victorian prisons and their replacement by smaller local institutions. But will he get the chance to implement his ideas?



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Judges to condemn new Ministry of Justice...

Senior judges will today consider whether to issue an unprecedented condemnation of the new Ministry of Justice, launched last week without the constitutional safeguards they regard as essential.

Those safeguards are needed "to protect the independence of the judiciary and the proper administration of justice", the Lord Chief Justice, Lord Phillips, has said.

A strongly worded public statement is one of the options to be considered by the Judges' Council. It would condemn the Government's decision to bring prisons and sentencing into the department responsible for the judiciary without meeting the judges' concerns.

The TRUTH is out there...........

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Judges seek safeguards from Lord Falconer.

Judges at all levels will call on the Government today to withdraw what they see as the threat to judicial independence posed by the new Ministry of Justice.

In a statement to be issued this morning, the judges will express the hope that Lord Falconer, who heads the new ministry, will agree to the constitutional safeguards that they regard as essential to protect "the proper administration of justice".

The statement was agreed at a meeting last night of some 25 judges at the Law Courts in London. The Tories called on Gordon Brown to head off what they saw as a growing crisis in the relationship between the executive and the judiciary.

Opposition MPs believe the Government should have thought through the conflict of interest inherent in giving one minister responsibility for both the judges and the prisons. Judges fear they will come under improper pressure from ministers when sentencing offenders.

Lord Justice Thomas, their representative on a working party of judges and officials from the Ministry of Justice, told the meeting last night that there had been little substantive progress in their negotiations with the Government.

The judges are prepared to carry on talking until next Tuesday, when Lord Phillips, the Lord Chief Justice, will give evidence to the Commons Constitutional Affairs Committee.

It emerged yesterday that Lord Falconer will give evidence to the MPs immediately after Lord Phillips. A holding statement was issued last night on behalf of the Judges' Council, which represents judges at all levels, and the Judicial Executive Board, made up of Heads of Division and other senior appeal judges.

At their joint meeting, the two representative bodies "gave their full backing to the senior judiciary's position as has been set out by the Lord Chief Justice, Sir Igor Judge and Lord Justice Thomas", the statement said.

According to one insider, the mood of the meeting was firm and determined, serious rather than angry.

Judges were not throwing down the gauntlet to Lord Falconer but neither were they retreating or accepting defeat.

Lord Phillips and his two senior colleagues will be reassured by the support they received from representatives of the wider judiciary.

The shadow Lord Chancellor, Oliver Heald, said that next week's meeting had the potential for a "major constitutional clash". He thought it was time for Gordon Brown, as the Prime Minister-in-waiting, to step in and protect judicial independence.

"He should not let this ride. Mr Brown should show he is not in the Prime Minister's shadow," Mr Heald said.

The judges' main concern is that there should be "appropriate and transparent mechanisms" to ensure the necessary resources are provided for the courts.

If Lord Falconer or a future justice secretary decides to take money away from the courts and spend it on prisons, the judges say that Parliament should have the power to overrule him.


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18 May 2007

A JUDGE who admitted he did not know what "website" meant was given a basic lesson in the internet yesterday.

Mr Justice Peter Openshaw, 59, is overseeing the trial of three alleged Muslim "cyber terrorists".

But on Wednesday, he stunned prosecutors by saying: "The trouble is, I don't understand the language. I don't really understand what a website is."

Yesterday, he paid close attention as computer expert Professor Tony Sams gave a "powerpoint presentation" on the subject atWoolwich Crown Court.

The first slide showed a yellow cloud labelled "internet" connected by blue lines to two computers.

Prof Sams said: "What you need to do is log into the system either through a telephone cable or perhaps through a television cable."

The professor then explained the terms dial-up and broadband, adding: "It is how fast you can communicate."

He said each computer on the internet was given a unique IP address. This could be accessed by a domain name such as

Prof Sams added: "You type in the domain name into your web browser to go there.

"Your computer has to go to a domain name server. As a user types in a domain name, the browser first of all goes to a server and that server tells it what the actual IP address is."

Defendants Younis Tsouli, 23, Waseem Mughal, 24, and Tariq Al-Daour, 21, allegedly helped distribute al Qaeda propaganda over the internet.

Tsouli, who surfed the web using the online name Irhabi007 - meaning Terrorist 007 - from his home in Shepherds Bush, west London, is alleged to have links to al Qaeda in Iraq, who are led by Abu Musab al-Zarqawi.

It is also claimed Tsouli and Mughal became involved in a murder plot by two Muslim extremists linked to a new group called Al Qaeda in Northern Europe.

Anti-terrorist police were alerted when the two men were arrested in Bosnia with a video showing them preparing a suicide bomb vest.

All three men were arrested in separate raids on October 21,2005.

Tsouli and Mughal, of Chatham, Kent, deny conspiracy to murder and incitement to commit an act of terrorism.

Daour, of Bayswater, west London, denies incitement to commit an act of terrorism and conspiracy to defraud.

They all face charges of having documents useful to preparing an act of terrorism. The trial continues.

The TRUTH is out there...........

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Reply with quote  #20 
H6 perhaps this is the reason why a learned judge does not know (allegedly) what a website is in the event that he has been at the naughty downloads too...........what you reckon?

Sex probe on porn judges.

SCORES of judges and magistrates have been caught downloading porn at work, it was revealed yesterday.

May 18, 2007

Court bosses have probed a shocking 1,434 complaints against law chiefs over computer use.

Pervs were disciplined after being rumbled by IT experts. A secret list was drawn up by the Lord Chancellor’s office, which claimed details were “exempt” from the Freedom of Information Act.

But Information Minister Richard Thomas has forced the court regulators to admit it exists.

He acted after several scandals involving judges.

Married judge David Selwood, 73, who sat at Portsmouth Crown Court, was kicked out of the legal profession two years ago for looking at images of boys aged eight to 14.

In 2004, an unnamed High Court judge kept his job after surfing adult websites.

In 2005, JP Geoffrey Botley, 52, of Bristol, was jailed for six months for viewing child porn.

Names of judges were also turned up by porn probe Operation Ore.

The Office for Judicial Complaints is refusing to reveal further details.

(Why? Could it because some of them have handed down very lenient sentences to other pedophiles!)


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Reply with quote  #21 

Was this judge just too clever at playing dumb?

Through the eyes of the media...

The media - not just in Britain - have had a wonderful time with the story of the high court judge who allegedly didn't know what a website was. Very few, though, reported the judge's robust response the day after the reports appeared: that he does know what a website is, and that his words were taken out of context.

But that explanation, too, has its difficulties. If he was misunderstood it was partly, perhaps mainly, his own fault. These were Mr Justice Openshaw's actual words, uttered during the fifth week of a criminal trial in which computer-generated evidence plays a key part: "The trouble is, I don't understand the language. I don't really understand what a website is."That seems clear enough. Not so, claimed a statement the following day from the Judicial Communications Office, the press and information bureau for the judiciary.

"Trial judges always seek to ensure that everyone in court is able to follow all the proceedings," it said. "They will regularly ask questions - not for their own benefit - but on behalf of all those following a case, in the interests of justice.

"In this specific case, immediately prior to the judge's comment, the prosecution counsel had referred to various internet forums with postings of comments relevant to the case. Mr Justice Openshaw was simply clarifying the evidence presented, in an easily understandable form for all those in court. Mr Justice Openshaw is entirely computer literate and indeed has taken notes on his own computer for many years."

That explanation persuades me up to a point, but leaves unanswered questions. It is not unusual, in criminal trials before a jury, for a judge to ask a question to which he knows the answer, but wants to make sure the jury also knows it. It's a helpful device; but the overly polite way judges sometimes present it suggests they are seriously out of touch.

If he was being forthright, Openshaw could have said: "Members of the jury, many of you are pretty ignorant, so I'd better ask a witness to explain websites to you in simple language even you can understand". But that's not how it's done in our courts.

What still worries me was the obviously personal tone of his confession of ignorance. He could have said something like: "It may be helpful if we could clarify, just to make sure we all understand, exactly what a website does." Why did Openshaw go into such excessive self-deprecation? Also, why did all this happen only in the fifth week of a trial in which computer language had been bandied about since its beginning?

The media, predictably, placed the Openshaw episode in the context of judges in the past who had allegedly asked questions showing them to be ancient relics living in ivory towers.

"Who are the Beatles?" is the most famous such question. I'm sure it was never asked. I have spent an inordinate proportion of my journalistic life trying to trace it. I've searched newspaper archives and, over the years, asked literally hundreds of lawyers active during the 60s if they could point to a judge who said those words.


The TRUTH is out there...........

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Judges fail to back new ministry.
Lord Phillips
Lord Phillips is concerned about the independence of the judiciary.

Senior judges have refused to back government plans to set up the new Ministry of Justice, it has emerged.

The Lord Chief Justice, Lord Phillips, told MPs it had proved impossible to reach a deal with ministers.

The judges fear their independence will be compromised as the Lord Chancellor takes responsibility for prisons and probation as well as courts.

The Conservatives have urged the government to sort out what they called a "serious constitutional problem".

Shadow Constitutional Affairs Secretary Oliver Heald said: "This represents a very serious constitutional problem, and a situation which requires prime ministerial intervention, whether by Tony Blair or Gordon Brown.

"They should not be going on roadshows. They should be sorting out this serious issue."

The government says it will push ahead with splitting of the Home Office in two - creating a new Ministry of Justice (MoJ) - even if it cannot get backing from senior judges.

Senior judges fear the new ministry, which took on responsibility for prisons, probation and sentencing policy from the Home Office on 9 May, will place less emphasis on the courts.

They are also concerned they will come under pressure to make decisions based on prisoner numbers and other non-judicial factors.

Lord Phillips said creating the MoJ move - which he told MPs he first learned about in an article in the Sunday Telegraph newspaper - would cause a "serious constitutional problem".

He wants an inquiry into the issues raised by the new ministry - and he called for "constitutional safeguards" to ensure the continued independence of the judiciary.

"We have now reached the firm view that there is a need to have a fundamental review of the position in light of the creation of the Ministry of Justice," he told the Constitutional Affairs Committee.

The Lord Chancellor, Lord Falconer, had hoped to reach an agreement but he told the judges a number of topics were off limits, including the executive agency status of HM Courts Service and the possibility of ring-fencing its budget.

Lord Phillips told the committee: "We've tried very hard to reach an interim agreement to tide over the period that will elapse before a review, and any implementation of it can take effect."

He said the Lord Chancellor did not agree there was a need for a review.

"This has become a fundamental difference between us," he told the committee.

A particular sticking point was the executive agency status of the courts in England and Wales, he said.

The judiciary's chief negotiator on the working group Lord Justice Thomas said they wanted to secure a review of the current position, adding: "We wouldn't have thought it was an awful lot to ask."

Following the split, the Home Office will be left to concentrate on dealing with terrorism, security, immigration and policing.


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Top judge accused of 'flashing' is allowed to work on...


Lord Justice Richards

     Lord Justice Richards

A senior judge accused of 'flashing' on trains is working on important appeal cases despite facing a possible prison sentence.

Lord Justice Richards is reviewing failed immigration and asylum applications as he awaits trial over claims he twice exposed himself to a woman on a train.

He is also considering written applications from those wanting to appeal against civil court rulings.

The controversial decision to allow the married father of three to continue working was approved by the Lord Chief Justice, Lord Phillips, and Lord Chancellor, Lord Falconer.

The £184,000-a-year judge - who is on police bail - denies the allegations. A spokesman for the Judicial Communications Office said: 'The charges faced by him have no bearing on his out-of-court duties.'

He stressed his work was purely a 'desk-top exercise'. 'He is not dealing with cases in the courtroom requiring presentation of evidence and cross-examination,' he added.

Lord Justice Richards, who sits in the Court of Appeal, was held by detectives in January after a passenger made a complaint about a male commuter.

On the advice of the Crown Prosecution Service, he was charged in March with two counts of exposure.

In a further humiliation, he has been forced to pose for a police mugshot, fingerprinted and asked to provide a DNA sample.

The maximum sentence for a first offence of indecent exposure is six months in jail. If convicted, he will be sacked.

A British Transport Police spokesman said the allegations relate to two separate incidents on trains in South-West London last year.

The Right Honourable Sir Stephen Richards, 56, who lives in Wimbledon, was originally arrested following an undercover operation.

The judge was detained on his way to work after the alleged victim picked him out on a train from Wimbledon to Central London.

Accompanied by an undercover detective, the woman identified Sir Stephen as the man who allegedly exposed himself to her last October.

Detectives had no idea that the suspect was a leading judge until they arrested him.

The judge has overseen a number of high-profile hearings and in January ruled in a High Court case brought by the family of Jean Charles de Menezes, the Brazilian shot dead by police who mistook him for a suicide bomber.

Sitting with Mr Justice Roberts, he said the Crown Prosecution Service's decision not to charge individual officers in connection with his death could be referred to the House of Lords.

The judge and his wife Lucy have two sons and a daughter. He is on full pay and, pending the outcome of the court case, conducts much of his work at home.

The TRUTH is out there...........

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Judges asked to rethink control order rulings after suspects abscond...

Judges should be less ready to rule that control orders imposed on terrorism suspects breach human rights, the independent watchdog on terrorism law said yesterday. Lord Carlile of Berriew QC called on judges to review their approach to restrictions imposed by control orders after a further three terrorist suspects absconded last week, bringing the total to six.

But he warned that any attempt by ministers to opt out of part of the European convention on human rights to bring in tougher control orders, a suggestion floated last week by the home secretary, John Reid, would be "barely practicable and probably extremely unwise".

The Liberal Democrat peer and senior criminal QC, appointed by the government in 2001 to report regularly on the operation of terrorism legislation, urged judges to be slow to intervene when conditions were imposed on suspects on the advice of police and security services.

"There is no stronger evidence needed than what has happened recently, for more demanding controls, than disappearances," he told a counter-terrorism conference organised by the Royal United Services Institute in central London. "In my view, the courts, should and will now be driven by recent events to re-examine their approach to the conditions and restrictions forming part of control orders." He added: "Once the accuracy of the designation of a controlee as a terrorist suspect has been verified by the court, as a general rule judges should recognise that officials and the police have far more understanding of the restrictions required to effect a control order and should intervene only where the boundaries of proportionality manifestly have been crossed ... I expect the judges to accept this view."

But he warned that an attempt to opt out of, or derogate from, article 5 of the human rights convention - which limits restrictions on the liberty of an individual - would be barely practicable, probably "extremely unwise" and unnecessary.

"My comment to ministers, is that derogation would lead to extremely difficult parliamentary problems. It would lead to lengthy and testy litigation, and an unwelcome and scarring clash with the senior judiciary which, on balance, the judiciary would be likely to win. Most important, derogation is actually entirely unnecessary."

He said: "Some statutory clarity should be considered to ensure that ministers can impose appropriate and effective controls in control orders, and perhaps to define more clearly the roles of the executive and judiciary respectively in the context."

Lord Carlile added that the threat from international terrorism was "if anything ... increasing" and that existing laws to combat terrorism will be "here to stay for at least a generation".

The power to opt out of article 5 can be invoked only in time of war or "other public emergency threatening the life of the nation" and only to the extent "strictly required by the exigencies of the situation," Lord Carlile pointed out.

The TRUTH is out there...........

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Senior judge cleared of exposing himself...

One of the most senior judges in the country was yesterday found not guilty of exposing himself on two rush-hour commuter trains.

Lord Justice Stephen Richards, 56, was cleared of two counts of exposing himself to the same woman on a train from Wimbledon to Waterloo, central London, in October last year. He repeatedly denied the allegations throughout the two-day trial at Westminster magistrates court, saying it must have been a case of mistaken identity.Standing outside the court yesterday, holding his wife's hand, Sir Stephen said: "Throughout this case I have put my trust in the judicial system and I am delighted it has enabled me to clear my name." He added: "We now look forward to getting back to our normal life, and in my case getting back to my full judicial duties."

Sir Stephen yesterday presented the court with a glittering array of written character witness statements, including commendations from Lord Woolf, a former lord chief justice, several QCs and members of his own family.

Passing judgment, Timothy Workman, the senior district judge for England and Wales, stressed he believed the witness had told the truth during the trial and had given "clear, dignified and truthful evidence". He said there was insufficient evidence to identify Sir Stephen as the perpetrator.

He also criticised the British transport police for not acting immediately on the woman's initial complaint. "Sadly, the British transport police failed to promptly investigate the allegation or to investigate it thoroughly," he said. He added that had they done so, conclusive evidence to support the victim's allegation or clear Sir Stephen's name could have been gathered.

The court had earlier heard that a city worker in her mid-20s had been travelling on a train from Raines Park, south-west London, to Waterloo when she noticed a man who had "boxed" her into a corner. She soon noticed that his flaccid penis was exposed, but because he looked like "a kind man" she initially thought that it was accidental.

She said that eight days later the same man exposed himself to her on the train for a second time. When she took out her mobile phone from her bag he moved away. She took photographs of him from behind as he was leaving the station but the court ruled this evidence was "not of sufficient quality to make a positive identification".

On October 26 she saw the man she believed had exposed himself to her and followed him off the train towards the Royal Courts of Justice, again taking photographs. She identified the same man in an undercover sting operation with the British transport police in January.

Judge Workman said he was satisfied the man she followed on October 26 was Sir Stephen, but the evidence that it was the same man who had exposed himself was inconclusive. "There was no supporting evidence obtained during the investigation," he concluded.

As part of his defence, Sir Stephen had shown the court his Calvin Klein briefs to demonstrate the difficulty of removing his penis from them.

He said he could not imagine deriving any gratification from exposing himself.

The TRUTH is out there...........

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On the whole I do not make a habit of speaking up for judges. They are invariably well-off and, let's face it, quite often rather pleased with themselves.

But I shall make an exception in the case of Sir Stephen Richards, a very senior and eminent judge, who was yesterday cleared of exposing himself twice on packed commuter trains last October.

If we accept, as we surely must, that Sir Stephen was wholly innocent of the charge, it is not difficult to imagine the terrible experience he has endured.

Think, if you are a man, of how you would feel if you were falsely accused of "flashing" on a train.

One might be driven half mad. And although Sir Stephen spoke of "resuming a normal life and getting back to my full judicial duties", he must know that he can never completely do this.

I am afraid his life will never be quite the same again.

Most of us will forget about the case very quickly, yet it seems in several ways to bespeak a kind of idiocy that is endemic in our society.

Lord Justice Richards

Lord Justice Richards with wife Lucy...

This really is a tale for our times which illustrates the failings of the police, as well as the shortcomings of our justice system.

Let me say, though, that I was shocked that a 56-year-old judge should have been wearing black Calvin Klein underpants - a garment one might just about excuse in a 25-year-old male model anxious to emphasise his manhood - and even more shocked that he should have displayed these underpants in court in order to prove that they were not "flasher friendly".

Might it not have been more dignified to rest his case on his honour and integrity?

But these are matters of taste. The important point, as the presiding judge Timothy Workman said at the end of the case, was that it was the word of an unnamed City worker in her 20s against that of Sir Stephen.

Is it not extraordinary, given that there was not a single piece of evidence to substantiate her story, that charges should have been be brought?

In effect, the British Transport Police preferred to take the word of a young woman against that of a senior judge. According to Judge Workman, they did not even bother to investigate the case promptly or thoroughly. They were ready to ruin a man's reputation without doing their homework.

Here we have someone without a blemish to his name. It is not as though he was known as "Flasher Richards" in his chambers.

Along comes a young woman who claims that he exposed himself to her on two occasions on a crowded train, though no one else had caught a glimpse of the genitals in question. Incidentally, I was struck by Sir Stephen's claim that he had had to stand in his morning train from Wimbledon to Waterloo for as long as he could remember. What a strange country we live in.

Given that his accuser had no evidence whatsoever and that there was a complete absence of any corroborating testimony, I would have asked myself, were I a policeman, whether she might have imagined the whole thing, or whether it might have been a case of mistaken identity. On the second alleged occasion, she took a photograph of a man on the platform at Waterloo, but the figure could not be identified as Sir Stephen.

But PC Plod of the British Transport Police took a different view.

The word of an off-duty judge evidently means very little to him, which may be a strange reflection on the values of our society.

Yet I suspect that there is more to it than that.

There are some allegations which are treated with exaggerated respect by the modern constabulary, and others which are immediately booted into the long grass.

Any suggestion of homophobia has Plod reaching for his handcuffs.

Not long ago the author Lynette Burrows was warned by the Metropolitan Police after she had suggested on a BBC radio programme that gays do not make ideal parents.

In my home town of Oxford, a student was quite recently thrown into jail for the night after asking a mounted policeman: "Do you know that your horse is gay?"

Mild ethnic slurs, for example against the Welsh (whom incidentally I love), also set off alarm bells.

By contrast, the police may become suddenly timid and noninterventionist if any impropriety is alleged involving the quaint customs of an ethnic minority.

Earlier this week we learnt how the police - presumably reluctant to interfere in Muslim matters - had failed to intervene to protect a young Muslim Kurdish lady called Banaz Mahmod.

She had told them, rightly as it turned out, that her father and her uncle were planning to kill her for falling in love with the wrong man.

If only the police had taken one tenth of the time and trouble over Banaz Mahmod as they did in bringing a threadbare case against Sir Stephen Richards!

But he, poor chap, was easy game, being white, middle-class and a judge.

According to feminist orthodoxy, which seems to have been liberally imbibed down at the British Transport nick, Sir Stephen was a sexual predator, an uncivilised beast lurking beneath a thin veneer of respectability. Send him down!

There is another troubling aspect to this case - which is that we do not know the identity of Sir Stephen's accuser.

Women are granted anonymity in cases of alleged rape because it is assumed that they will be more prepared to come forward.

One can see the argument, though there have been disturbing cases of men being falsely, even maliciously, accused of rape by women whose identity is never revealed.

But whatever justification there may be for anonymity in instances of rape or other sexual assaults, there is surely none in cases of flashing.

The trauma suffered by a woman who is flashed at is hardly to be compared to that of a rape victim, though I am sure it is not pleasant, and I am told (not by extreme feminists) that flashing is surprisingly common.

His accuser should have been required to identify herself. She might, of course, have been happy to do so.

Judge Workman commended her for "clear, dignified and truthful evidence", which suggests to me that she was mistaken rather than over-imaginative.

But the fact remains that, even though Sir Stephen has been cleared, the charge against him is bound to linger in some minds, and some people will always say there is no smoke without fire.

Legislators should consider whether anonymity should continue to apply in such cases.

It cannot be right that someone should be able to make an accusation of this magnitude without having to run the risk of public censure if it turns out to be wrong or, worse still (though I am sure it does not apply in this instance), malicious.

But what really worries me is that this case should ever have been brought.

Presumably British Transport Police have some real crimes to investigate, but perhaps they are too intractable. How much easier to go against a middle-class, middle-aged judge.

We won't respect his office, or take his word. We won't even bother to prepare a proper case. What a depressing vignette this is of modern Britain.

Absolutely. What a vignette indeed. If we're not depressed already, we're well on the way to being so...

- John, Bangor, Wales

This is a blatant cover up to protect a senior judge from the consequences of his own actions. The comments by Mr Glover are fatuous in the extreme.

As usual he blames the victim who has shown great courage and tenacity even when faced by the fact that the judicial esatablishment would close ranks to protect one of their own. I note the judge did not opt for a jury trial where 12 members of the public would have little if any difficulty in deciding he was guilty. After all this was not a "fleeting" glimpse but occurred on two occasions in a train compartment where one can study the features of other passengers at some lenght. Additionally, this brave woman took photographs which prove the veracity of her complaint.

British Transport Police are convenient scapegoats used to divert attention of the blatant judicial bias on the part the three Magistrates concerned.

I strongly suggest that there should be a campaign for the CPS to appeal against the verdict.

- Jack Reed, Kingston UK

Just because there was not enough evidence to identify him as the flasher in question, it does not automatically make him innocent! He is now innocent in the eyes of the law but he could just as easily be guilty of the offence. Only the victim in this case knows the truth.

- Andrea, Cheshire

The TRUTH is out there...........

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Reply with quote  #27 

Judicial Knowledge

A judge's personal knowledge of particular people and their affairs constituted an important and recognized basis for judicial action. Specifically, according to both Shafi'i and Zaidi manuals, except in hudud cases, where evidence must be presented, a judge can give judgment based on his own knowledge ('ilm ) of events; and, when the evidence of witnesses is presented, he can accept or reject it on the basis of his own knowledge ('ilm ) of the justness or unjustness of the persons in question, without requiring further verification of their character. Pragmatic and contextual, this circumstantial 'ilm was derived from worldly contact and experience rather than from teachers and set the practicing judge off from the more retiring among his fellow scholars. While 'ilm in the sense of knowledge acquired in the madrasa receives prominent mention among the fundamental conditions for assuming the judgeship—Abu Shuja', for example, enumerates six detailed subpoints—that of 'ilm in the informal, local sense is not developed. Without such contextual knowledge, however, that obtained in the madrasa could not be effectively implemented.

Dealing as he does in worldly hijaj , that is, in evidence, testimony, acknowledgments, and oaths, the judge requires a down-to-earth understanding of people and their ways in his jurisdiction. And yet there was a constraint, at least in the perspective of the manuals, that restricted his purview to the surface of outward fact and verbalized intention, to the exclusion of deeper but unexpressed purpose or concealed motive. Shari'a court proceedings are meant to operate on the basis of al-zahir , a level of outward appearances and manifest meanings. Confronted, for example, by an oath confusing in its implications, a judge is instructed to follow the outward sense of the articulated statement. Likewise, the import of an oath is never to be determined by the potential existence of a "mental reservation, or an interpretation contrary to the meaning of the words, nor a reservation made in an undertone which the judge cannot hear," and of which might be alleged subsequently by the oath-taker. In making the key initial decision about which of the two parties in a case is to be the plaintiff (and thereby assume the burden of proof), the judge is to apply the following rule of thumb: "The plaintiff is the individual whose claim conflicts

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with the appearance of things (al-zahir )." Interpretation of a final ruling in a case is similarly restricted: the judge's decision is to be "implemented manifestly (zahiran ) not implicitly (batinan )." Fittingly for an encounter of "faces" (muwajaha ), the proceedings are intended to function zahiran , or as we would say, "on the face of," issues, words, and rulings. Among the relevant specialists in appearances was the physiognomist, the student of faces and physical indications, who could be called upon by the judge to give evidence.

Al-Nawawi offers some notes on how a judge should conduct himself in order to acquire information upon being appointed to a new and unknown jurisdiction. Before departure for the new post, he should make preliminary investigations "about the circumstances of scholars and persons of good repute in the district." He may expect to ask and receive advice from local scholars on matters of jurisprudence and also, from those with practical experience, information about locally accepted custom ('urf ). Al-Nawawi recommends that the judge consult such local jurists before rendering his decisions. Persons of good repute could be relied upon to guide the new judge in discriminating the just and the unjust in the population and, together with the local scholars, provided prospects for staffing his court. The Zaidi manual likewise counsels the judge to have both scholars and other reputable people present at court sessions.

The new judge, al-Nawawi writes, should "enter on a Monday and proceed to the center of the town." He is then to carry out a series of initial inquiries to acquire necessary information concerning two main areas of judicial responsibility that extend beyond his duties as a trial judge. "First of all, he should look into the situation of individuals in jail. Those who say 'I was jailed justly' should remain so. If 'wrongly,' then his adversary must produce proof, and if the latter is absent he should be written to, to present himself." Then the judge should interview the local trustees of the several types: "He who claims a trusteeship should be questioned about it, and about himself and his administration. He who is found lacking in the requisite justness should have the funds taken away from him, and the less than fully competent should be supported with counsel."

Next the judge should see about appointing court functionaries to assist him, including both a secretary and an individual known as a muzakki , whose task it is to pronounce officially on the justness, or not, of individuals who appear before the court as witnesses. Known to both the Shafi'i and the Zaidi manual, the procedure of verification of

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witnesses, or tazkiyya , does not require the existence of a specific court official to be implemented. To the extent that court evidence is given as oral testimony by witnesses, however, a judge new to a place is largely dependent on trusted witness verifiers, official or not, to establish the necessary evidential basis for his rulings. As an institution, the muzakki represents a specialized form, and in the case of the existence of an actual court official, an important delegation, of one of the essential capacities pertaining to the judge himself. A judge who has come to know the local people, by contrast, is often able to engage this dimension of his official identity directly and verify the character of witnesses by means of his own information. A witness stands between the judge and unknown facts concerning persons and events, and a muzakki is a further intervening link in the human transmission of evidence, standing between the judge and an unknown witness. To eliminate the further mediation in the chain of evidence transmission, the judge may cultivate a personal knowledge of his constituents.

Intended for the circumstances of various times and places, including, for example, those that obtained in his native Syria, al-Nawawi's manual takes into consideration still another possible communicative intervention, a translator. Judges in very large cities of the Middle East and elsewhere doubtless could never come to know the population of their jurisdictions well enough to forgo major reliance on the mediations of muzakkis, translators, neighborhood notaries, quarter heads, market and craft officials, experts of various types, sectarian representatives, and so forth. But in Ibb, and perhaps most if not all Yemeni towns, the population was, until recent years, small (e.g., for Ibb, ca. 5,000 in 1900), and the character of the interaction was "face-to-face"; people all "knew" one another in terms of names and social identity, if not on an intimate basis (i.e., zahiran , if not batinan ). It was such knowledge, within the community and, potentially, between the judge and the community, that ideally structured a local muwajaha encounter. In recent decades, however, Ibb has expanded rapidly in surface area and population (ca. 17,000 in 1975), and town society is now marked by a rapidly declining degree of mutual "knowledge." Associated with the spatial and demographic changes, a shift is occurring to a pattern of interaction in which people interact for the first time in the presence of large numbers of townspeople they do not "know." Associated with this social change is a new state presence, represented by numerous new functionaries, including university graduate judges, who not only are different in formation and administrative style but who

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remain strangers to the town to the end of their often brief tenures in office.

Prior to the late 1950s, when the first expansion outside the old walls occurred, the "public" informational space had an immediacy indicated by such important auditory institutions as voiced calls to prayer (now loudspeaker assisted), public criers in the marketplace, and the sounding of horns by night guards on their rounds. The main alleys were informational channels, not only as the principal locale of everyday male interaction, but also for societal announcements: a convert to Islam was taken through the streets on muleback; wedding processions were accompanied by gunfire, fireworks, music, and ululation; a criminal act was publicized by drumming (or, in extreme cases, dragging) the culprit around the town. Town life was, in addition, a series of types of communication-rich assemblies of men. The paradigm of gathering was in the "place of gathering," the mosque (jam' ), both at the neighborhood level during the week and at the community-gathering level on Friday. The marketplace, especially the morning meat market and the afternoon qat market, was the main everyday public arena. By midafternoon, gatherings shifted indoors, for business in officials' sitting rooms and for pleasure or for special occasions in friends' reception rooms.

The circuitry of interpersonal knowledge in a small community such as Ibb carried information about reputation. Originally constituted "before the people" (quddam al-nas ), reports concerning reputations circulated thereafter through dense word-of-mouth channels. A collectivity of informal (and potentially formal) witnesses for one another's conduct, the community was acutely sensitive to deviation from established personal norms. Conduct was evaluated with reference to a frame of known differences of social identity, occupation, personality, and so forth. As with the "mismatches" discussed earlier, it was mainly the nontypical for the type that was remarked upon. Feeding with special enthusiasm upon the novel, gossip nevertheless also confirmed in passing the already known.

That men's and women's networks intersect in the family and otherwise diverge is routinely recognized in Ibb. As part of a comprehensive separation of the sexes, women have their own neighborhood links, public bath days, visiting patterns, and an entire parallel world of afternoon qat-chewing sessions. The existence of a social division of experience and related specialized knowledges that pertain especially to men or to women is acknowledged in the manual sections devoted to

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legal testimony. There are, on the one hand, matters that "mainly males have to do with (lit. 'see')." These include legal undertakings from contracts to such public events as conversion, witness evaluation, and death. Al-Nawawi's sample list is "marriage, repudiation, remarriage with a repudiated wife, [conversion to] Islam, apostacy, challenging and certifying [witnesses], death, insolvency, agency, testaments, and secondary witnessing." In connection with such matters two men must give testimony, rather than the ordinary case possibility of one man and two women. "That which is restricted to the knowledge (ma'arifa ) of women and which is not normally regarded by men," al-Nawawi writes, includes such matters as "female virginity, childbirth, menstruation, breast feeding, and [female] physical defects under clothes." Four female witnesses, without any males, can speak to such matters. From the position of (a male-constituted) jurisprudence, men ideally represent the zahir society of the streets, markets, and mosques; women represent that of the batin , ideally located in the house, concealed, and veiled.

Like "social honor" (ihtiram, sharaf ) and "justness" ('adala ), the inverse, established notoriety and, more technically, the status of "sinner"/"unjust" (fasiq ), are products of collective attribution and somewhat relative in content. While the first two guarantee that one's word as a witness will be relied upon, the latter have the opposite effect. According to al-Nawawi, when a muzakki is asked by the judge to report on a witness and the report is positive (i.e., the witness is just), the muzakki need not go into his reasons. But if he concludes that the witness is among the unjust and therefore challenges him or her, the grounds must be specified. These grounds can be either what the muzakki has personally observed or information gained through "istifada ."

A word from the same root used in reference to water means to "overflow" and "flood"; the legal term means "spread widely" or "saturated" in reference to information. Another usage of the same term by al-Nawawi concerns how a local population comes to know of the appointment of a new judge. A written imamic order, accompanied by traveling witnesses, is one possibility, and istifada —whereby the appointment simply, but decisively, becomes widely known—is the other. Al-Ghazzi also uses the term in his summarizing comment on a list of the types of facts for which the testimony of a blind witness is acceptable. The list includes knowledge of such things as deaths, kinship, and property rights, all of which al-Ghazzi says may be "established by istifada ." Al-Nawawi makes a similar argument in con-

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nection with testimony based on public repute (tasamu' ). The term involved is derived from a root meaning "to hear," as is the general expression for "reputation," or "good reputation" (sum'a ). In a nondirect manner, public-repute testimony can be used to establish descent (nasab ), tribe (qabila ) affiliation, or death, as well as such legal facts as marriage and the existence of an endowment or property rights.

Al-Nawawi gives an instructive condition for the acceptance of this public-repute type of information: he says it must be "heard from a sufficient number of individuals to guarantee against collusion in a lie." Similar reasoning provides the foundation for another variety of information discussed earlier, the received wisdom known to jurists as tawatur . What tawatur is to formal knowledge of important general historical matters (the existence of Mecca, etc.) and more technically to the science of hadith, istifada and tasamu' are to practical local knowledge about particular people and events.

A microsocial and historical catalogue of particular actors and specific occurrences, the ever-shifting "known" of a place was tapped into by a judge in a special manner. In one respect his knowledge inevitably became deeper and wider than the ordinary person's as he became privy to otherwise guarded secrets exposed in situations of conflict. In another sense, however, he was barred by his position from some of the most routine but informative interactions of everyday life. Al-Nawawi says it is appropriate for the more narrowly specialized muzakki to evaluate justness based on personal knowledge derived from relations of friendship, neighborliness, or transactional dealings, but a judge is counseled not only to avoid buying and selling on his own behalf—interactions that would necessitate diverse ordinary contacts—but also to avoid doing so even through a known agent. For a judge friendship could also be problematic: he must be wary of gifts given him, and he is forbidden to give judgment in cases involving not only his own relatives but also individuals with whom he had any sort of formal association. The stylized intimacy of the muwajaha encounter thus involved, on the part of the judge, a man at once unusually knowledgeable about the hidden aspects of people's affairs, yet also structurally distanced from many aspects of mundane social life. Although a judge could (and did) rely on the human resources of his household, including his wife, children, personal retainers, and secretaries for help in knowing about the community, he also had to exert himself to overcome the isolation of his position.

The Yemeni practice of not appointing judges to their home districts

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is not based on an explicit manual principle, but al-Nawawi's advice to a new appointee to make inquiries about scholars and reputable people implies a posting to an unknown place. The Yemeni appointment rule served the purpose of causing a new judge to start fresh, in a context free, at least initially, of both the demands of extensive family ties and the constraints of prior obligations and events. The paradox here is that while too much intimacy—such as would occur in a native district posting or if a judge attempted to conduct himself like an ordinary citizen—was to be avoided, a substantial degree of close contact was nonetheless essential for acquiring the local knowledge basic to judging.


 o.m.g...i now need a paracetamol!!....i'll be eternally grateful i joost make cards,nae wonder they've awe bags under their peepers!!


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Great bit of reading there Ma


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aye awrite..i'll stick to the quotes n stuff frae noo on


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Ministers defy judges on rape law reforms.

The government is to press ahead with plans to reform the rape laws in an attempt to increase the low conviction rate, despite strong opposition from the judges who will have to put them into effect.

Plans to try to clarify the law on drunkenness and consent are set to be dropped. But ministers are likely to proceed with other proposals outlined in a consultation paper last year, Mike O'Brien, the solicitor general, said in an interview.

"The conviction rate in rape cases is appalling," he said. "There are too many rapists getting away with it and many of them are repeat rapists."

Ministers expect to publish their final conclusions this month and to legislate as soon as possible. They pledged to reform the law after the conviction rate dropped from 33% of reported rapes in 1977 to 5.4% in 2005, before rising slightly to 5.7% last year.

But judges who will have to apply the law remain opposed, warning it could greatly increase costs, double the length of some rape trials, and possibly lead to miscarriages of justice. Describing the changes as a "minefield", the Council of Circuit Judges (COCJ), which represents judges who try rape and other serious criminal cases in crown court, oppose the main planks of the reform which are:

· A power for expert witnesses to give general evidence, not about the specific case, but about how rape victims generally behave, to dispel "myths" that might affect the jury's reactions;

· An automatic right to use the alleged victim's videotaped interview with the police in place of her main evidence at the trial;

· Judges say another proposed change, allowing the jury to be told of any occasions when the woman confided in someone else about the rape before telling police is unnecessary, because the court of appeal ruled in a case last year that such reports are now admissible.

Police fear that rapists are targeting young women binge drinkers. But ministers believe that trying to define the point at which a woman becomes unable to give consent is unnecessary.

The law was clarified by the court of appeal last March, when it quashed the conviction of Benjamin Bree, a 25-year-old software engineer found guilty of raping a 19-year-old student after a night of binge drinking. Judges are expected now to leave to it juries to decide the issue rather than throwing the case out.

Judges have privately doubted that the reforms would make much difference to the conviction rate. They have pointed out that the conviction rate dropped because more cases were being reported and prosecutors were going ahead with too many unwinnable cases.

The campaign group Women Against Rape has blamed poor investigation and presentation of cases.

In the COCJ's unpublished response to the government,the judges warn that the use of expert evidence could be "a minefield".

They say the distinction between assisting a jury to find the facts and usurping the jury's function of deciding whether the alleged victim is telling the truth is likely to be "blurred" in the majority of rape cases.

But Mr O'Brien said there was "a considerable amount of support" from consultees for the use of expert witnesses.

The judges also argue against the automatic right to replace the alleged victim's main evidence with the videotape of her interview with police, arguing that this should be for the judge to decide.

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