whose fault is it anyway…


“If you give me six lines written by the hand of the most honest of man, I will find something in them which will hang him”.

So said Cardinal Richelieu (Louis XIII’s Chief Minister”) and it goes a long way to explain why the objective/subjective fault argument is a protracted one; unlike in a civil court where perhaps at worst we might be dealing with an injunction or some financial recompense, in criminal cases we are dealing with a man’s liberty or ultimately (in some jurisdictions) a man’s life. Consequently it should not be that surprising, that what exactly constitutes fault and from what perspective that should be considered has been subject to the greatest degree of scrutiny within the legal profession.

Originating from Latin; subjectivus and objectivus respectively… the former has come to be synonymous with a personal essentially internal view of a set of actions/circumstances while the latter with an impartial, external consideration of the same situation; but quantum physics (in particular Einstein’s notion that it is the “theory that decides what one can observe”) has taught us that such divisions are perhaps less black and white than we might imagine

Let’s try to see how these two ways of assessing criminal fault may or may not be reconciled and which if either should we be favouring in the name of justice.

It might be said that “desert in punishment” lies at the very core of criminal law and indeed penology, explored in Punishment and Responsibility (HLA Hart 1968) it works outwards (or indeed inwards) from the premise that the more serious the punishment the more subjective the mental attitude/state (or mens rea) should be in order (in a somewhat tautological manner) to justify said punishment; we should have as Hart tells us a “fair opportunity” to exercise our “mental and physical capabilities” to avoid transgressing the law and by so doing avoid punishment. Only by this being so can society apportion blame, hold the wrongdoer responsible for his/her acts and they be punished accordingly.

Consequently for an act such as murder; it may not be surprising to find that the requisite mens rea has a highly subjective criterion (based on intention) central to its common law definition; whilst at the other end of the spectrum we find crimes (often driving related such as careless/dangerous driving) that are assessed using essentially objective criteria. Now this may all be very well and good if there were no (or minimal consequences) to such a degree of criminalisation (and this is largely the rationale behind strict liability crimes which are usually considered “regulatory” rather than “criminal”). But what if I am a doctor found guilty of gross negligence manslaughter (see Adomako [1994]) where the consequences involve a loss of livelihood and potential imprisonment; is it right and proper that my internal view as to the wrongness of my action, (whether or not I chose to act wrongly(or otherwise)) plays no part. Similarly was it fair that Riding (McCrone v Riding 1938) as a novice driver was held to the same standards as a more experienced driver?

If we consider intention, recklessness and carelessness/negligence as three mens rea shades of grey (as we move across the fault spectrum from highly subjective to highly objective) we could do well to visit briefly each in turn but also retaining an awareness that alongside mens rea the subjective-objective dialectic plays a great part in the assessment of the validity of the vast majority of the available partial and full defences in criminal law.



Running through the complex case law regarding intention (and these have generally been as explained previously homicide cases) we immediately see a tension as the law lords have attempted to tease apart cases such as Hyam (v DPP (1975)) and Nedrick (1986) from more obvious “smoking gun” (direct intention) murder cases; anxious not to confuse motivation with intention and amidst a sea of misdirections the final distillation in the form of (when deemed necessary) the Woollin (1998) direction does partly resolve this dilemma by returning the conundrum in the form of admissible evidence for the jury’s ultimate consideration in its terms of “virtual certainty” and “appreciation” but we are in many ways no nearer resolving the subjective/objective conundrum.

Perhaps greater clarity emerges from the 2006 Law Commission Murder, Manslaughter, Infanticide’s suggestion that a “person is taken to intend a result if he or she acts in order to bring it about” (a return to the common law interpretive notion that words should be given their everyday meaning) and greater yet from Duff’s highly subjective notion that direct intention refers to a state of mind that would result in a sense of failure if certain “intended” consequences did not result. As regards oblique intention the Law Commission’s position is very similar to the wording found in Woollin the net result being that cases such as Matthews and Alleyne (2003) are still decided on the jury’s (mixed objective and subjective) inference of culpability (given regard to all the evidence).

If none of the above is terribly clarifying the law surrounding recklessness is perhaps no more edifying; though as Wilson points out it should be so, with recklessness a subjective fault element requiring “thought” and/or “awareness” and as such easily distinguished from negligence which does not. The case history (and this is only compounded if one considers Scottish law) is complex and contradictory so much so that it prompted Joshua Barton to write a 2011 paper attempting to ascertain what was the predominant modality (subjective v objective) in Scottish law; a question of vital significance (as he points out) with recklessness forming the mens rea of a whole host of offences.

To briefly recap it is standard to start with Cunningham (1957) which in fact (and this is as we shall see later underpins some if not much of the problem in this area) centred on a dissection of the term “malice” and ended up by invoking Professor Kenny’s definition which included (alongside classic intention) an essentially subjective definition of recklessness with an emphasis on “conscious foresight” (Stephenson (1979)). A brief and confusing period followed Lord Diplock’s ratio in Caldwell (1982) which invoked objectivity (so long as the “risk was obvious” but was both confused by D’s voluntary intoxication and subsequent decisions such as Spratt (1991) in which these criteria were not applied to assault/malicious wounding cases) for this only to be finally overruled in 2003 in the criminal damage/arson case concerning two minors R and G.

If we take it as a given that “all examples of recklessness” are automatically “examples of negligence” but not necessarily vica versa; where does that leave us with cases such as Daryl Parker’s smashed telephone booth (R v Parker [1977]) of “closed mind recklessness” in which essentially the subjective fault element is imputed given the obviousness of the outcome in relation to the actions/circumstances etc.

Negligence, with its focus on conduct is potentially wider yet, yet despite its pure objective aspirations it is a far from a binary criteria with a variety of subtle gradations from plain old butter finger carelessness to actions of such a preposterously low standard that only serious criminal consequences seem to fit the bill.

It is perhaps (at the margins of these various categories) that we are able to gain some access to to begin to assess the relative justness/unjustness of these two (not necessarily opposing) models of apportioning blame.

Barton makes the very valid point that in the vast majority of cases the answer to this question will not make a very great difference but it is in these borderline decisions that clarity of thought seems of the utmost importance.




For sake of brevity I want to focus on just three areas I consider important:

  • just how objective can any decision be (and in corollary the same can be said to apply to subjective decisions)
  • the unique beast that is UK common law
  • how might this situation be improved; is a greater degree of codification the answer?

Firstly I think it is a fundamental truth that is underpinned by many disciplines (scientific, philosophical and psychoanalytical) that there is no such thing as a pure decision/assessment of a situation etc. All seemingly objective decisions ultimately include subjective factors and vica versa and as the law tries to resolve the inevitable tension between two of its most fundamental tenets (Sankey’s “presumption of innocence” and there being “no excuse for ignorance of the law”) it seems inevitable that victims and perpetrators alike will attempt to draw on both sides of this “consideration spectrum” to maximise their personal sense of justice, just as society will continue (one can only imagine) to demand its pound of flesh in instances in which it considers itself wronged/ violated. (Rape and the changes evinced by the Sexual Offences Act 2003 is a perfect example of the struggle to fine tune legislation and an attempt to make sense of the subjective/objective continuum).

Secondly UK common law is highly based on very evolved definitions (of for example intention/recklessness/negligence etc.) alongside very precise drafting of statutes etc. (as opposed to European civil tradition with its emphasis on generalised statements of principles). This undoubtedly has its advantages but one of its disadvantages is that occasionally it can produce rogue decisions and the excessive (some might say) attention to detail can at times obfuscate the obvious.

A simple example might be the notion of gross negligence manslaughter; for all its objective aspirations it is coined in what is highly subjective (responsibility invoking) language and in its need to transmit its sense of outrage and disapprobation often misses a lot of the details (Adomako had been trained in Russia and was considered by the judge to be woefully under-supervised etc.).

Some kind of justice is served, blame is undoubtedly apportioned but some vital ingredient that I think is at the core of justice is omitted; (it may even be in this day and age that Adomako’s counsel would invoke Article 6 of the HRA 1998 and suggest that denying his subjective position as regards the case was a denial of his right to a fair trial etc.).

It is widely acknowledged that the criminal legislation is woefully anachronistic (Draft Criminal Code 1989) and I think it is without doubt that a thorough review of many core charges would be welcome; but alongside such a process (which is not the focus of this essay) I think that justice would be better served by the understanding that the subjective- objective continuum in fact exists as a dialectic rather than a dichotomy. This doesn’t mean that for all strict liability charges the defendant would have the right to submit a 3,000 word statement as to just why he/she had parked their car on the double yellow line but it does mean that (rather along the lines of the Woollin direction) the jury are entrusted with as much evidence (both subjective and objective) as is practically possible and in that light their decision is made.

If the prime aim of justice is to be fair and as such to reduce to an absolute minimum any miscarriages of justice I can see no other practical alternative; this process (which could be seen as further allying the UK legal decision making process to that of European civil law principle driven practice) needs to be accompanied by a closer examination of just what (objective) standards we are asking of our citizens and an assurance that (in terms of precedence) we really are comparing like with like (for example much mention of R v Seymour [1983] was made in Adomako [2014]; at one level it is arguable how much these two cases actually have in common).

Law just like life is not a static phenomenon (see Lord Scarman in McLoughlin v O’Brien [1983] 1 AC 410) and neither should it be; sometimes the twain can meet.

“The Good, The Bad & The Ugly”; in consideration of a Cybercrimes Act 2015



“anonymity is a kind of relation between an anonymous person and others, where the former is known only through a trait or traits which are not coordinatable (sic) with other traits such as to enable identification of the person as a whole.” 

Wallace, Katherine

“Having two identities for yourself is an example of a lack of integrity.”

Mark Zuckerberg as quoted in David Kirkpatrick’s The Facebook Effect

September 11th 2014 marked an highly significant day in the world of social media, with Mark Zuckerberg’s Facebook finally instituting his company’s “real name” policy forbidding users from “pretending to be anything or anyone” other than themselves and explaining that the “name you use should be your real name as it would be listed on your credit card, driver’s license or student ID” or risk having said account deleted.

Six months earlier in China, March 16th 2014 marked the Beijing imposed deadline for Sina Weibo users (China’s most popular microblog) to register their names and mobile phone details; only those so doing and subject to a “satisfactory” verification process would be able to use the website in an active capacity. This coming shortly after the Latvian based website ask.fm promised something similar in the wake of Hannah Smith’s cyber-bullying related suicide.

The very fact that such terms as “cyberbullying”, “cyberstalking”, “flaming”& “trolling” have now shifted from “urban” to “oxford” dictionaries; with charity ChildLine reporting quantum increases in reported cases of cyberbullying (4,507 in 2012/2013 as opposed to 2,410 in 2011/2012) and there are calls in Australia for a “Charlotte Law” (for tougher cyberbullying legislation) following the recent high profile suicide of TV celebrity Charlotte Dawson would suggest that we are more than ready if not long overdue, for some legislative reform in this critical area of 21st century life which essentially “has no precedent in the offline world”.

In August 2012 the New Zealand Law Commission had the following to say:

“In New Zealand, as in many other countries, there is growing and strong concern about the use of new communication technologies to cause harm. Young people are particularly vulnerable, but the problem is by no means confined to them: there are examples of the most disturbing and damaging communications between adults as well. There is a widespread desire that something be done.”

They also went on to highlight the other potential cyber-crimes of “malicious impersonation” or “hijacking of another person’s online identity”; the vast majority of these crimes taking place behind the veil of online anonymity the internet affords.

It is the aim of this essay to propose legislative reform in these areas whilst additionally giving consideration be given to the wisdom and legality of anonymity on the net in general.

Anon; just who are we protecting?



“Cyber bullies can hide behind a mask of anonymity online, and do not need direct physical access to their victims to do unimaginable harm.”

Anna Maria Chavez  CEO Girl Scouts USA

Let us begin by looking at the realities and consequences of internet anonymity and the kind of debate it may engender in somewhat greater detail.

It is difficult to even imagine the terms of a debate in this area without some reference to the First Amendment for any illusion that solutions (even partial ones) can take place at an entirely national level simply serve to remind us of the behemoth the modern day world wide web has become; we may therefore do well to remind ourselves of its exactitudes:

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.

though not enshrined in such terms in our constitution; it nonetheless marks the tone of the discourse that would inevitably rage in the event of any anonymity related legislation.

We would also do well to remind ourselves of the fact that many (if not the majority) of the big players in the social media game (Ask.fm/Facebook/Sina Weibo/Twitter etc.) are not in fact hosted in the UK  and as such are not directly affected by any homegrown legislative directives; but as with any attempt to institute &/or develop the “rule of law” it is inherent, indeed intrinsic to its very notion that such a process will be incremental and inevitably painstaking.

Internet anonymity has undoubtedly become one of the “basic fault lines in (the) political and ethical considerations of Internet regulation” and we can be grateful to Nogami (2009) amongst others for furthering our understanding of how this “privilege” (axial to this essay’s theme is the idea that anonymity is perhaps best considered a “privilege” as opposed to a right) actually affects human behaviour.

It has long been known that circumstance & social pressure can drastically change the way that individuals behave (witness Milgram’s “obedience to authority” studies & Zimbardo’s Stanford Prison Experiment) but the literature on the psychological impact of anonymity is more recent, yet nonetheless equally salutary.

According to Wallace anonymity acts to “minimize accountability” & with the sole prosocial exception of donation serves to increase the incidence of anti-social, criminal/unethical and selfish/self-interested behaviour. Yet in spite of the fact that the vast majority of cybercrime is committed anonymously there is still a strong ground swell of support for it on both sides of the Atlantic.

Publishing material anonymously (regardless of purpose) is by no means a new phenomena, it is even suggested in a recent biography that our esteemed Lord Mansfield (William Murray 1st Earl of Mansfield) published a pamphlet anonymously in support of his marriage to Lady Betty Finch; but the internet has opened up new possibilities that no one could have foreseen when in March 1989 Tim Berners-Lee wrote a proposal for “a large hypertext database with typed links”.

We ought not forget the many advantages the internet has brought to our lives; from commercial possibilities, through the many positive aspects of social networking to endless educational opportunities. Indeed in the light of the 2013 Snowden/NSA revelations & some if not many recent world events it is wonderful and not surprising to hear Tim Berners-Lee himself calling  for a bill of rights (making reference to an “internet version of the Magna Carta”) that would “guarantee the independence of the internet and ensure users’ privacy”.

But that does not directly equate to the “right” to post anonymously (other antonyms for “anonymous” might include: identified/known/named/public/visible) on the internet. Indeed it is quite possible to contemplate a world wide web where corporate &/or government control was minimal yet citizens were required to be in someway “accountable” in terms of their posting/s on websites. And if our psychological analysis is correct, it seems likely that if such measures (as I will be proposing) were put in place the incidence of cyber-crimes and general cyber-related discontent (the cost of which we are very far from being able to calculate) would fall precipitously.

I am not unaware of the kind of resistance that Zuckerberg’s brand of “radical transparency” or some variation thereof might engender & indeed it’s implications are potentially very far reaching but I for one would welcome the democratic debate that such a move would engender and it is in this light that I propose my potential law reforms.

For any legislation to be “desirable, practical and useful” it is essential that the problems it is intended to resolve are deeply understood, carefully targeted and it (being the legislation) is implemented in such a way that the benefits clearly outweigh the detriment. The evidence regarding anonymity and lowered standards of behaviour (both on and off the internet) is beyond persuasive. Many just use the internet’s shroud of anonymity for what might seem to be nothing other than harmless banter; but at its periphery lies a far more sinister story of which awareness is growing with alarming rapidity.

As Helen Goodman (shadow minister for culture, media and sport) recently said:

“I think it is the responsibility of legislators to do what only they can do. We don’t want another voluntary response. We need to address this gap between online and real identity… and make cyber bullying a criminal offence.”

To suggest legislative reform in this area (and calls are already underway in both England & Wales) without a careful consideration of the role anonymity plays in this process is tantamount to swatting the wasp without actually tackling the nest.

Current Climate

UK law in this area is very piecemeal; but prosecutions involving “cyberbullying”, “cyberstalking” & “online harassment” have sought to apply a number of existing laws:

•Malicious Communications Act 1988

•Criminal Justice and Public Order Act 1994

•Protection from Harassment Act 1997

•Communications Act 2003

•Breach of the Peace (Scotland)

•Racial & Religious Hatred Act 2006

• Defamation Act 2013

Under the School Standards and Framework Act 1998 (or Education (Independent Schools Standards) Regulations 2003 for independent schools) all UK schools are required to have anti-bullying policies; and though December 2012 saw the issuing of Crown Prosecution Service guidelines on “prosecuting cases involving communications sent via social media” there remains no current legal definition of “cyberbullying” within UK law.

In August 2009 Keeley Houghton became the first person in Britain to be jailed for “bullying on a social network site” (under the Protection from Harassment Act 1997) after posting:

“Keeley is going to murder the bitch. She is an actress. What a fucking liberty. Emily Fuckhead Moore.”

as her Facebook status.

June 2012 saw Nicola Brookes (after a series of over 3,000 abusive messages falsely representing her as a drug dealer and paedophile were anonymously posted online) win a landmark High Court judgement securing a Norwich Pharmacal order against social media giant Facebook requiring them to hand over the names & IP addresses of the alleged abusers.

Meanwhile in New Zealand; following the Law Commission review (quoted above) Justice Minister Judith Collins fast-tracked legislation to create two new offences:

  • Inciting suicide – up to 3 years jail
  • Using a communications device to cause harm – $2000 fine/up to 3 months jail

Additionally “courts will also get powers to order individuals, internet service providers and social media sites such as Facebook to remove or correct harmful material, apologise, give complainants a right of reply, and disclose the identity of anonymous sources.”

This latter decision, has not surprisingly raised a lot of First Amendment hackles in the USA where the debate concerning defamation and anonymity has long raged (attempting to balance the contrasting positions of Melvin v Doe and Ampex Corporation); Contra Costa County Superior Court Judge Judith Sanders in 2001 firmly erring on the side of internet anonymity.

Nonetheless nearly all US states have amended and passed state laws and legislation to address cyberbullying and harassment by electronic communications.

Law Reform Proposition





My proposition to the Law Reform Commission is conceptually simple; with nearly one in five children suffering a “negative experience” online last year according to a NSPCC survey and a 2012 study suggesting “over half of all internet users have received abuse online” it would seem that new legislation is required and sooner rather than later. I would initially propose an (umbrella):

A. Cybercrimes Act 2015; ultimately generating a series of new crimes to include all areas of digital criminal activity:

  • cyberbullying
  • cyberhate (racial/religious/otherwise)
  • cyberstalking
  • harassment by electronic communications
  • hijacking of another person’s online identity
  • malicious impersonation

This is by no means a small task & would be required to be an highly consultative process; the bill would be required to be very carefully drafted and express a very thorough and accurate understanding of what is and isn’t possible on the world wide web much in the way that banks, governments and other financial institutions have often been required to consult with ex-hackers to fully understand how secure their systems are or are not.

B. Amendments to existing laws to ensure “fitness for purpose”

There would need to be a thorough review of all previously mentioned Acts (see Current Climate above) to ensure that they were “adequately up-to-date to be applicable to digitally mediated communications.”

C. A nationwide review of all school & workplace anti-bullying policies to ensure they were bullet proofed for the realities of a “digital age”.

D. Last but not least I would wish for the House to consider (for the reasons presented above) an Anonymity Billproposing that at the very least that:

  • the right to block anonymous messages should be legally protected
  • consideration should be given to legislation that enshrines the concept of “radical transparency” essentially outlawing all anonymous posting on the internet

There is little in the world that cannot be turned to purposes both positive and negative and the world wide web is proving to be no exception. Invented by a Britain, it would seem there is now the very ripe opportunity for the UK to set the standard, if not aspire to lead the way in web-related legislation. With UNICEF, the Human Rights Commission and the United Nations calling for a “coordinated approach from governments around the world”, the 2009 Unlearning Intolerance Seminar recommending “international strategies on awareness, education, family involvement and policy change in dealing with “cyber-hate” we don’t have the luxury of delay. This essay is an attempt to contribute to that process by recommending the fast-tracking of cybercrime related legislation (in which we already lag behind a whole host of other jurisdictions) but also to suggest we go one step further and at least give adequate consideration to what would be potentially groundbreaking reforms; there seems little doubt that such legislation would be controversial and so it should be, for freedom of debate is what ultimately defines a democracy.

Just tabled amendment to Criminal Justice Bill to make life just a bit harder for cyber-bullies and sex pests using texts to harass victims.

Angie Bray’s Twitter account: 7:58 am 24 March 2014

Though welcome, current proposed reform does not go far enough, just serving to remind us of how the Ministry of Justice (particularly in its latest incarnation) tends to obfuscate rather than clarify, produce confusion (as if there were not already enough at common law) when we are craving pellucidity. Based on the deep understanding that these goals are not mutually exclusive; legislation in this area needs to be comprehensive, highly informed yet adequately codified and it is in such a light that I propose the Cybercrimes Act 2014.

just yesterday (28th September 2014) saw the passing of an 18 week custodial sentence for Peter Nunn after a prolonged campaign of Twitter intimidation of MP for Walthamstow Stella Creasy; her crime, campaigning to put Jane Austen on the 10 pound note, resulting in a series of rape threats: http://www.bbc.com/news/uk-england-29411031


Claire Perry’s description of user-generated websites as reported: http://www.theguardian.com/technology/2014/jan/30/labour-calls-for-better-laws-to-stop-cyberbullying

Wallace Katherine “Anonymity.” Ethics and Information Technology 1 (1999): 23-35.

The Facebook Effect David Kirkpatrick ISBN-10 1439102120




http://urbandictionary.com: “an online argument that becomes nasty or derisive, where insulting a party to the discussion takes precedence over the objective merits of one side or another”

http://oxforddictionaries.com: “make a deliberately offensive or provocative online posting with the aim of upsetting someone or eliciting an angry response from them.”



New Zealand Law Commission August 2012 Ministerial Briefing Paper “Harmful Digital Communications: The adequacy of the current sanctions and remedies”

First Amendment to the United States Constitution (within all Council of Europe jurisdictions the reference point would be Article 10 of the ECHR)

Tom Bingham “The Rule of Law” ISBN 9780141962016


Nogami T (2009). Reexamination of the Association between Anonymity and Self-Interested Unethical Behavior in Adults. Psychological Record, 59(2), 259–272.

Stanley Milgram “Obedience to Authority; an experimental view” ISBN 006131983X


Eckel C C & Grossman PJ (1996). Altruism in anonymous dictator games. Games and Economic Behavior, 16, 181–191.

Silke A (2003). Deindividuation, anonymity, and violence: Findings from Northern Ireland. The Journal of Social Psychology, 143, 493–499.

Postmes T & Spears R(1998). Deindividuation and antinormative behavior: A meta-analysis. Psychological Bulletin, 123, 238–259.

De Cremer D & Bakker M (2003). Accountability and cooperation in social dilemmas: The influence of others’ reputational concerns. Current Psychology, 22, 155–163.


Norman S Poser Lord Mansfield Justice in the Age of Reason ISBN 9780773541832









http://www.localgovernmentlawyer.co.uk  Information Law in the Facebook Age


Melvin v. Doe, 49 Pa. D. & C. 4th 449, 477 (2000)


Stiles A Everyone’s a Critic: Defamation and Anonymity on the Internet http://scholarship.law.duke.edu

H.R. 1966 (111th): Megan Meier Cyberbullying Prevention Act http://www.govtrack.us/congress/bills/111/hr1966






Lord Hailsham The Dilemma of Democracy ISBN 0002118602

Angie Bray’s Twitter account: 7:58 am 24 March 2014


Glazebrook’s preface to Blackstone’s Statutes on Criminal Law 2014-2015

behind closed doors…


Oscar Pistorius murder trial


Our right to privacy is fundamental indeed constitutional (enshrined by Article 8 of the European Convention on Human Rights); and this is no less true of South Africa where it is clearly stated in Section 14 of the Bill of Rights (Chapter 2 of the Constitution of South Africa):

14 Everyone has the right to privacy, which includes the right not to have:
a. their person or home searched;
b. their property searched;
c. their possessions seized; or
d. the privacy of their communications infringed.

But few believe that this right is or should be utterly inviolate.

Owen Fiss in his 1996 masterpiece “The Irony of Free Speech” has gone so far as to suggest that even such a fundamental notion as free speech has very different meanings according to one’s socio-economic background; that such discrepancies should enter a courtroom seems to violate something very fundamental in our collective psyche.

Enter the world of the “superstar” trial & bear witness to the almost global indeed universal disapproval of Judge Thokozile Masipa’s verdict in the Oscar Pistorius trial (see http://www.theguardian.com/world/2014/sep/15/south-africa-disappointed-pistorius-verdict) and I can only imagine the interest that (in four days time) her sentencing of Pistorius will engender.

It goes to the very root of the Rule of Law and justice itself; but lest I need remind it is not the first time that it has been suggested that the rich and famous can buy their way out of trouble but few cases have garnered such public interest with perhaps the sole exceptions of People of the State of California vs. Orenthal James Simpson (which lasted nearly a year running from the jury being sworn in on November 2 1994 to the final not guilty verdict of October 3 1995).

Pistorius undoubtedly (to use a term from the recent Rebekah Brooks trial) had a Rolls Royce defence team and such cases always raise the question of equality of arms (see Hannibal Lecter QC (https://www.markpummell.com/uncategorized/hannibal-lecter-qc/)); the police procedure was clearly substandard, which undoubtedly hampered the prosecution, but fundamentally the buck stopped with Masipa.

No one was asking the world of her but I think the world was asking something of her and I think in this she failed. Most if not all legal commentators were accepting of the fact that the verdict would not be “first degree” murder but I think we were all entitled to expect a degree of logic above the statement that:

“Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door – let alone the deceased as he thought she was in the bedroom at the time…” Masipa said. “To find otherwise” (in reference to his rapidly afforded excuse that he mistook Steenkamp for a burglar) “would be tantamount to saying that the accused’s reaction after he realised that he had shot the deceased was faked, that he was play acting, merely to delude the onlookers at the time.”


Let’s be clear about this; this was four shots from a 9mm pistol… a pistol that was loaded with Black Talon hollow point “zombie -stoppers” (Pistorius’s own description)… how could you possibly (in the circumstances described) not “subjectively foresee the possibility” of killing someone; and it is crucial to understand that for a “second degree”/”common law”murder conviction the person behind the bathroom door could just as well have been an intruder (as Pistorius allegedly believed) rather than in fact as it turned out to be Reeva Steenkamp. So even if we give Pistorius the benefit of the doubt, this is a highly flawed judgement. It is doubly so in a judgement that did little to conceal that Masipa (and one presumes her two independent assessors too) thought little of Pistorius as a witness.

Leaving lengthy legal analysis of “dolus eventualis” aside (on this matter see Ulrich Roux’s excellent piece in the Guardian 12th September 2014) to quote the words of Martin Hood, Johannesburg based criminal lawyer:

“She hasn’t got it right”.

article-2282675-182BF39A000005DC-496_306x423He went on to say:

“The consensus among the legal community was that he is guilty of murder. This could really open the door to systematic abuse of our legal system by people who shoot their partners and claim self-defence. If someone can shoot in an irresponsible manner, and even in a negligent manner and not be held accountable to the fullest extent of the law, then it means that we are not able to use the law as a tool to address violent crime in this country.”

September 12th 2014 was a sad day for women, a sad day for South Africa but ultimately a sad day for justice. Let’s hope that come Monday 13th October 2014 she uses her discretionary sentencing powers to better effect.




Owen Fiss; The Irony of Free Speech Harvard University Press 1996 ISBN 0674466608

Tom Bingham; Rule of Law Penguin Books 2010 ISBN 9780141962106



Hell & High Water…




With todays’s piece I think I’m in grave danger of entering the literary minefield of mixed metaphors; as three such metaphors seem to be running through my mind simultaneously, prompted in part by my current studies of the very legally thorny subject of intent, my related reading of the recent case regarding the appearance of Allan Young this week at the Old Bailey (see reference below) and perhaps what I have learned to call (& will be duly writing a piece on) my #fledglinglawyer Magpie Mind.

So let’s see what “hell and high water”, “rock and a hard place” & “bargepoles” have to say for themselves.

Let’s start with “bargepoles”; these (and the expression “I wouldn’t touch that with a bargepole”) came into my mind as I studied the nigh on impossible situation that trial judges have found themselves in as they have attempted to direct juries (with greatly varying degrees of success it must be said) with regard to the requisite “mens rea” to establish the strict intention necessary to transform a manslaughter into a murder. From the “natural consequences” of DPP v Smith [1961], through the “high degree of probability” of Hyam [1975] to the “virtual certainty” of Nedrick [1986] & Woolin [1999] one cannot imagine how tightly the novice judge (and we tend to forget there are such) would have had to hold onto his “bench book” nor how carefully he/she would have needed to scour the 1967 legislation (Criminal Justice Act 1967) or the more recent mooted notions of codification (Law Commission 2006) to feel even half way confident to propound on said subject.

So therefore perhaps not surprisingly, we come to learn this metaphors originates from equally (if not more so) thorny ground.

First specifically referenced in Lady Monkswell’s Diary, 1893:

“It will be a long while before any political party touches Home Rule again with the end of a barge pole.”

It concerned the very current yet highly emotive topic of devolution; whilst some 50 years earlier an obvious precedent can be found concerning social class in Official Magazine of the Grand Lodge of the United States (1843) edited by James L Ridgely:

“But that mushroom aristocracy of our country… who would not condescend to touch a poor man with a ten foot pole, were their extraction traced, in nine cases out of ten they were nurtured in the squalid huts of poverty.”


Which I hope takes us quite comfortably on to the Morton’s fork (see history of this expression below) or more colloquially, the rock and a hard place that is facing the advocates, judges and jurors that are currently gathered at the Old Bailey to consider the fate of Allan Young. In a story that is eerily reminiscent of Woolin, a much younger Young (some 13 years ago in fact), in a fit of pique shook his five week old son Michael Winn leaving him with “catastrophic” brain injuries and ultimately severe disability.

The prosecution are now alleging that his death in 2011, following a bout of pneumonia, came as a “direct result” of said injuries and Young is therefore facing manslaughter charges; Prosecutor Zahid Hussain quoted as saying (at the original trial):

“A post-mortem was conducted on January 29, 2011, and the conclusions from the pathologist are that the injuries inflicted upon the child in 1998 led directly to the death of the child.”

Zoey Johnson QC more recently laying out the causal chain thus:

“There was a cause and effect role between the head injury sustained while Michael was a baby and his death at the age of 12.”

I imagine it will be a complex & prolonged trial; even the the thinking surrounding “shaken baby syndrome” has greatly evolved in recent years with one of its pioneers Dr. Norman Guthkelch challenging the classic triad (of cerebral oedema, subdural haematoma and retinal haemorrhages) and even raising great doubts about causality, recently publishing an article very critical of such prosecutions:

“I wouldn’t hang a cat on the evidence of shaking, as presented.”

he is quoted as saying in Shapiro’s 2011 piece on “Rethinking Shaken Baby Syndrome” (http://www.npr.org/2011/06/29/137471992/rethinking-shaken-baby-syndrome).

In any subsequent appeals it seems highly likely that the judges’ directions (as they often are in such cases) will be subject to microscopic scrutiny as the defence look to break this chain and establish external/third party interventions in Michael Winn’s untimely death.

Most lawyers (including trainees) will be familiar with “hell or high water” clauses and most of us in moments of passion have suggested we would do something/get somewhere “come hell or high water” but in this case the literary association came from a much simpler space; just take one look at Allan Young’s photo as he makes his way to the Old Bailey and if you ever need a visual metaphor for “living hell” you have one.

Allan Young arriving at the Old Bailey

Honestly I don’t know where I stand on this case. Guilty of something 13 years ago; of course. Guilty of manslaughter 13 years later I think it’s a very hard call to make both medically and legally; in fact it is the tension between these two specialities that both fascinate me and will ultimately determine Young’s fate. I can be sure of one thing only: whatever the outcome I can’t imagine even justice will be able to extract much joy from this tragic and as yet incomplete tale.



Crown Court Bench Book & Specimen Directions – Third Edition 2010

Murder, Manslaughter & Infanticide – Law Commission 2006

John Morton; onetime Archbishop of Canterbury and ultimately Lord Chancellor under Henry VII was quoted as saying: “If the subject is seen to live frugally, tell him because he is clearly a money saver of great ability, he can afford to give generously to the King. If, however, the subject lives a life of great extravagance, tell him he, too, can afford to give largely, the proof of his opulence being evident in his expenditure.”

Problems of infant-retino-dural haemorrhage with minimal exertional injury – AN Guthkelch (Houston Journal of Health Law & Policy ISSN 1534-7907)



Hannibal Lecter QC

St_Sebastian_3_MantegnaSt. Sebastian – Andrea Mantegna (1490)

Any University of London LLB student that has had the time and good fortune to get their head/s around (what was historically a core text for our First Year CLRI studies) Gearey et al.’s The Politics of The Common Law will be left in doubt that the law is inherently political and politics/politicians can somehow never escape the watchful eye of the Rule of Law.

Students or #fledglinglawyers that have never quite been able to grasp this as a concrete/pragmatic notion could do far worse than read Nick Davies account of the very recently concluded “trial of the century”:


Brave investigative journalism aside (Davies is also author of Flat Earth News); it throws a very bright and erudite light on the often unexplored tension that exists between politics and the media and by default the legal system and the media. I won’t attempt to paraphrase, as it is a piece that deserves to be read and relished in its entirety; not the least for the Rolls Royce defence team analogue, the description of Timothy Langdale QC as “a model of old-school courtesy built around a core of steel” but ultimately for this paragraph in which he documents the slow unravelling of prosecution witness Eimar Cook:

“Cook told the jury she recalled a conversation at lunch in September 2005, when Brooks had not only warned her that her own phone might be hacked but had described the ease with which it could be done. Cook added that during the same lunch, she thought Brooks had discussed the famous incident when she had been arrested for assaulting her then partner, the actor Ross Kemp. Laidlaw gently pawed her into position, confirming without doubt the date of the lunch, challenging the strength of her memory until she insisted she was absolutely certain and then, like Hannibal Lecter in a horsehair wig, softly and courteously, he cut out her heart: the incident with Kemp had happened six weeks after the lunch. Her story could not possibly be right.”


Mads Mikkelson – season 1 episode 10 Hannibal NBC 

The backdrop to this story; (Murdoch’s bid to acquire BSkyB; Coulson’s involvements with Cameron (and that’s another story for another day) and Brooks’ masterful positioning of herself as an “ally to the elite”) has to be studied and ultimately digested to be believed. Indeed with its baffling yet subtle complexities but nonetheless inherent elegance it is not that dissimilar (though of equally dubious origin) to some of the exquisite meals that are served up in any episode of Bryan Fuller’s Hannibal (NBC).

Incredibly; Murdoch’s News Corp, (in spite of phone-hacking related legal bills in excess of 270 million pounds since 2011) has actually made money from this realignment/restructuring with shares up more than 1% following the verdict (see Financial Times June 24th 2014: Hacking trial: Rupert Murdoch comes out on top despite legal bills).

So whilst 25th June was a “great day for red tops” (Sun’s headline: 25th June 2014), Essex boy Andy Coulson is facing a custodial sentence & one can’t help but be left wondering whether it was a great day for British justice or not. One thing that we can’t be left doubting (as Michael White quotes in “Why it’s OK to feel sorry for Andy Coulson”) the words of the old music hall songs never seem to fade:

“it’s the rich what gets the pleasure, it’s the poor what gets the blame”

Compared by her (Brooks’) pre-trial lawyer to St. Sebastian; this is one blogger and #fledglinglawyer that thinks that maybe sometimes you can stretch your analogues that little bit too far.

Where now; well probably off to prison for Mr. Coulson & back to business as usual (plus the memoir royalties) for Ms. Brooks; we’ve already considered Mr. Murdoch. For myself; as a long time boxing fan I have always relished the re-match; so I am personally praying for a retrial… my choice for prosecution counsel… no doubt would  have to be (after all the appropriate training and Bar Council validation was in place) none other than Hannibal Lecter QC; at least then it might be something approaching a fair fight.

“Great day for red tops”: http://www.thesun.co.uk/sol/homepage/news/5713997/rebekah-brooks-cleared-by-phone-hacking-trial.html

Flat Earth News by Nick Davies (Vintage/B00C6PAMBE)

Hacking trial: Rupert Murdoch comes out on top despite legal bills: http://www.ft.com/cms/s/0/85b4beae-ebc8-11e3-8cef-00144feabdc0.html#axzz35oIZxkRK

“Why it’s ok to feel sorry for Andy Coulson”: http://www.theguardian.com/uk-news/2014/jun/25/why-feel-sorry-andy-coulson

“A B C it’s easy as, 1 2 3…”

faceless crimes


I think it might be a generality, if not quite an universality, that most of us find the idea of faceless crime disturbing; whether it be the internet hacker that empties our bank account and/or steals our online identity, the pseudonym-ed “troll” that abuses and harasses via a variety of internet portals to the masked burglar or at worst bank robber. But this week brought news of a potentially even more disturbing trend (http://www.theguardian.com/commentisfree/2014/jun/05/britain-first-secret-trial-rights) as reports trickled through of Britain’s first ever potentially trial to be held (at the request of the prosecution) totally “in camera” (i.e. in secrecy; with non-disclosure of the defendants’ details and no media access).

At odds with the very fundamentals of the “rule of law”; it would not be a first.

Very questionable practice fell under the radar during the “height of the Northern Ireland” conflict (see “Trial of AB and CD part of creeping move towards secret justice” Guardian Thursday June 14th) with “what happens at Long Kesh stays at Long Kesh” being very much the flavour of the day, while 2005 and 2008 (with the trials of Salahuddin Amin and of Rangzieb Ahmed respectively) saw evidence being presented “in camera” (rather more accurately “off camera”!!!) to protect the identity of various secret service members in Pakistan whilst a very erudite & recent piece by Lord Phillips (http://www.lrb.co.uk/v36/n08/nicholas-phillips/closed-material) reminded us of some of the obfuscations surrounding the case of Wang Yam (R v Wang Yam [2008]).

But this case (which was to be known simply as R v AB & CD) threatened to take things to a whole new level; an entire trial was to be faceless, to be held “in camera” and therefore potentially to be publicly unaccountable; quite rightly it prompted outrage both within the legal profession:

(a) “disgraceful departure from recognised trial standards and an affront to the rule of law”

Baroness Helena Kennedy QC

and without:

“We submit that the orders made involve such a significant departure from the principle of open justice they are inconsistent with the rule of law and democratic accountability.”

Anthony Hudson (Guardian)

So much so that it was appealed and (as yesterday’s judgement confirmed) overturned with Lord Justice Gross, Mr Justice Simon and Mr Justice Burnett naming the two defendants (as Erol Incedal and Mounir Rarmoul-Bouhadjar) and declaring “that some of the opening speeches of the trial and the final verdicts could be held in open court”.

It was/is a landmark decision in that once sanctioned a very disturbing precedent would have been set and once you have ABC, well the rest is the stuff of Motown legend.

For details of the fascinating case of Wang Yam and the idea of “public interest immunity” see: http://theoldbailey.wordpress.com/2008/10/20/r-vs-wang-yam-2008-and-the-pii-certificate/

“A B C it’s easy as, 1 2 3…” from: ABC (Motown/1970) – Jackson 5 

“the wisdom of Salomon (v A Salomon & co. Ltd [1897] AC 22)…”



Perhaps not initially obvious but the Madagascan lemur & the common law of England & Cymru have far more in common than one might initially imagine. They are both essentially unique and utterly the outcome of being removed from certain Darwinian pressures on account of their geographic location and isolation.

In the case of the lemur; as a result of the land mass that we now call Madagascar splitting off from the Gondwana supercontinent some 165 million years ago (and India some 100 million years later) the resident lemurs were over time removed from the predatory pressures of the big cats and in their unique eco-system were able to become the wondrous and divergent species we see today. Common Law (as distinguished from European civil law) came about (on account of our island status) in a rather similar way allowing it to evolve (over approximately the last 1,000 years) into a system that though it has been exported and emulated has no direct legal equivalent; the net result being the wonder that is UK common case law.

This presents the #fledginglawyer with a bewildering and initially puzzling variation of “species” /cases much as must have been met by early primate anthropologists following Madagascar’s “discovery” by Diogo Dias on August 10th 1500 after he was blown off course on his way to India.

But after an initial sense of being overwhelmed the law student can start to revel and enjoy the wonders of their studies; and for me this always comes about by stumbling on cases that on first glance have little to recommend them yet on further analysis start to reveal narratives, stories and ultimately differences of opinion and character that only someone such as Charles Dickens (Bleak House 1853) might even begin to to apprehend let alone be able to capture and transmit; one such case for me is the seemingly humble case of Salomon v. Salomon [1897].

Now whether it’s appeal to me lies in location (my family were raised near Salomon’s Whitechapel boot/shoe-factory location); it’s subject matter (concerning company law as I prepare to sell one of my own businesses (http://dbstudios-shanghai.com) or perhaps the vast array of legal details and food for thought that it yields (with House of Lord opinions from no less than Halsbury LC) I think is of little import; I think what it provides is a perfect instance of why one should read cases, in full and from the original sources as opposed to relying on mycompanylaw.blogspot.com, lawteacher.net &/or wikipedia or other such derivative websites.

Use the latter and you will undoubtedly come to rote memorise that:

  • Salomon v Salomon – was formative in the establishment of “corporate personality”; consequently
  • creditors of an insolvent company cannot sue shareholders
  • & for the 2/1 student that this rolled over into the Interpretation Act 1978 etc.


But (just as if you have never seen a “ball’ of lemurs at play) how much of the joy of common law is missed; as you fail to see the accusations and counter-accusations flying across the air of the high court, the court of the appeal and ultimately the House of Lords; come to appreciate both the meanness (witness the original shareholders’  agreement) yet business shrewdness of Salomon senior; taste the bitterness and sense of injustice that must have been flooding through Edmund Broderip as he tried to recoup his (all importantly subordinate) debenture until finally one feels the final drop of Halsbury’s guillotine like ruling (as he applies a very legally “literal” reading of the statute (in this instance The Companies Act 1862)) & we are informed that the “sole guide must be the statute itself”.

Whether Otto Kahn-Freud’s view of this case i.e that ultimately it was a “calamitous” ruling; (& certainly in recent cases (such as Pepper v Hart [1992] & Re Spectrum Plus Ltd [2005] there has been a view to a much more “purposive view” of legislation/statute interpretations); nonetheless how much poorer would we be for not having taken the time and trouble to understand how, why and where our current legal system comes from.

“The common law is a storehouse for worm tubs, ornamental broughams, snails in ginger beer bottles and fancy waistcoats, all of which would long since have returned to rust and rubbish had the cases which brought them into prominence been governed by some statute”

Sources: Salomon v A Salomon & Co Ltd [1897] AC 22/Pepper (Inspector of Taxes) v Hart [1992} UKHL 3/Re Spectrum Plus Ltd [2005] UKHL 41/Luke (1982)


“times they are a changin’…”

bob dylan

Come gather ’round people
Wherever you roam
And admit that the waters
Around you have grown
And accept it that soon
You’ll be drenched to the bone
If your time to you
Is worth savin’
Then you better start swimmin’
Or you’ll sink like a stone
For the times they are a-changin’.

If May 2014 has started as it means to go on it should prove to be quite some month; with two news stories catching my eye… 1st May 2014 marked an historic day with the first Radio 5 Live broadcast (& a fascinating interview with Lord Neuberger (current President of the Supreme Court)) from courts one and two of the UK Supreme Court. The interview is surprisingly candid for someone that apologised on at least more than one occasion for being “cagey” and touches on a variety of very current topics including Legal Aid, the “tension” (my choice of words) between the UK & the European courts and the current somewhat “embarrassing” (Victoria Derbyshire’s choice of words) socio-sexual admixture of the current Supreme Court (there being only one lady (in the form of Lady Hale) & no non-caucasians amongst the “Justices” of the Supreme Court).

Meanwhile only a day later Alexander Cameron QC (David’s elder brother; himself heading 3 Raymond Buildings (currently representing Rebekah Brooks)) made history by playing a seminal role in the “halting” of a huge Southwark Crown Court fraud trial primarily as a result of punishing cutbacks in Legal Aid (the net result being no defence barristers were willing to take on this immensely complex (46,000 pages of written evidence) case; the judge Anthony Leonard QC stating:

“I have taken into account that it is common ground between the parties that where the defendant is not at fault, in a case of this complexity the defendants could not receive a fair trial without advocates to represent them.”

With 7 similar cases in the pipeline (due to be heard before September 2015) the implications are very far reaching.

The Supreme Court first agreed to television coverage in July 2009; with Sky News Live (http://news.sky.com/info/supreme-court) beginning their broadcasts in May 2011. To listen to Victoria Derbyshire’s interview simply go to: http://www.bbc.co.uk/5live &/or for a more edited version download as a podcast at the iTunes store.

Law, Like Love


“The first thing we do, let’s kill all the lawyers” 

Henry VI Part II

Most lawyers if asked for a quote from Wystan Hugh (usually shortened to WH) Auden’s body of work might run to “Law is The Law” but in fact the title of his 1939 poem is more correctly “Law, Like Love” and indeed perhaps no finer place to start one’s legal studies than with an acknowledgement or perhaps better put a realisation that in fact there exists far greater parallels between the “grey hospitals of human corruption” (as Piero Calamandrei described the courtrooms in his “A Eulogy of Judges”) & the beating of our hapless lovestruck hearts than one might initially imagine; & in this blog it seems likely that i will attempt to walk that most uncomfortable of ground between certainty (if such a thing exists) and the fumblings that only a fledgling lawyer (perhaps like a teenage suitor) can be allowed to indulge in and for that (indulgence) i shall remain eternally grateful.

I intend to explore cases, current legal topics and unfolding exam terror (as i fast approach the initial papers of my LLB) and at times may seem asinine (as i develop a series of mnemonics to help with case name remembrance) but i yet hope at times challenging as i attempt (in an initially most rudimentary of styles) to highlight and hopefully to a degree illuminate some current areas of dissonance and tension in the (predominantly) UK lego-political landscape as i work my way through the current LLB (International Programme) syllabus.

Writing legalese; & hopefully more importantly going beyond that legalese to discuss these matters clearly yet eruditely is no small challenge & hence the choice of a blog that will literally give me a (near) daily chance to hone these skills; rather like public speaking, these are skills that i can see need a great deal of practice and if the first day i attempt this is some sweaty London afternoon in or around May/June 2015 (when i first sit my Year 1 papers) i figure i may well live to regret that decision.

But for now as the sun rises in Shanghai & breakfast call i will leave the closing words to Mr. Auden himself:

Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.

WH Auden: Law, Like Love

source/s: Piero Calamandrei “A Eulogy of Judges” (Princeton University Press 1942, repr. 1992), chap. XII, p. 95