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Wednesday, 24 August 2011

Herpes: Don't pass it on ...

Published in Halsbury's Law Exchange here.  I have not managed to find an appropriate picture.

Two things of perennial interest to the tabloids are crime and sex, jointly or separately. It is therefore no surprise to find a story involving both in the Daily Mail. One David Goulding pleaded guilty to grievous bodily harm after knowingly giving a former girlfriend, Cara Scott, genital herpes. He had known he was infected but did not tell Miss Scott until just before the relationship ended, by which time she had already contracted the disease. He was sentenced to 14 months’ imprisonment.

In legal terms the matter was straightforward and uncontroversial: by Mr Goulding’s conscious action Miss Scott was exposed to the disease without her knowledge, and the eminently foreseeable consequence came to pass; hence the guilty plea. It is however worth responding to reported comments by spokespeople for what is called the Herpes Viruses Association. According to the Mail article:

Nigel Scott, spokesman for the Herpes Viruses Association, said Golding’s sentence was ‘outrageous’ and compared the case to prosecuting children for ‘giving their friends chicken pox’.

He added: ‘It is such a trivial infection that most people don’t notice it. It has exactly the same medical implications and consequences as an ordinary facial cold sore.’

Marian Nicholson, director of the HVA, added: ‘Many of those who are diagnosed are reluctant to disclose their status but this is because of the unnecessary stigma, not because it is serious ... emphatically it is not.’

There are two points. First, the intentional – or reckless – transmission of an infectious disease by the very specific act of sexual intercourse is not of a piece with the accidental transmission of chicken pox by virtue only of being in proximity to someone else. The former is eminently avoidable and properly described as intentional or knowingly reckless; the latter rather less so, unless I suppose one’s imagination contrived a situation where a person deliberately initiated as much contact as possible so as to render the transmission of something like chicken pox almost inevitable.

Secondly, there would or should be no stigma attached to the victim in the circumstances of Miss Scott, any more than any other innocent victim of a crime, but that has nothing to do with prosecuting the offender. No-one should look down on someone with a broken leg but they should certainly prosecute the person who inflicted it. In Mr Goulding’s case, however, any concern he might have had about his stigma ought to have been less important than his obligation to inform Miss Scott of his condition. The aforementioned association might think the condition trivial but I rather suspect most people would prefer not to contract it, and to be warned of any risk accordingly.

Monday, 22 August 2011

Law and Libya again

Published on Halsbury's Law Exchange here and reproduced on Legal Week here

Now that the Libyan conflict seems to be drawing to the end, or at least the end of its present phase, it might be appropriate to consider the legal aspect of NATO’s involvement.

The first question involves the nature of the Western intervention. In this respect, imagine that a Predator drone, controlled by a foreign state, circles above the White House looking for President Obama. It fires a hellfire missile but misses the President and kills a couple of innocent civilians instead. The foreign state then issues a statement saying it is sorry about the civilians but Obama’s position is untenable and the drones will keep coming until he leaves office.

It is not difficult to imagine the response from the White House. President Obama would make a speech evoking the stirring rhetoric of President Roosevelt’s post-Pearl Harbour address, and the television news would soon be flooded with images of American forces setting off to unleash retribution.

Suppose further that the responsible state was not acting alone, but was receiving technical, material and intelligence assistance from another state. If so, that state would also find itself on the Pentagon’s target list.

The ensuing clash of arms might be called many things, but no-one could argue that it would appropriately be called a “war”.

I make that rather laboured point because of the startling position the White House took on Libya. In a detailed document prepared in June, the White House asserted that because the US forces involved were only playing a “supporting role”, they were not engaged in “hostilities”.

Accordingly, the argument ran, the definition of “hostilities” as described under the War Powers Resolution of 1973 had not been met. That resolution, part of the fallout over the Vietnam War, requires Congressional approval for any deployment of US forces in hostilities for more than 60 days. The White House said that its forces in Libya are not engaged in sustained fighting or “active exchanges of fire with hostile forces”.

With the caveat that I am not an American lawyer, that argument seems entirely fallacious. The governments responsible for the intervention made clear early on that Gaddafi’s regime could not continue.

NATO’s operations began after UN Resolution 1973, which was passed when it was thought a slaughter of citizens by Gaddafi’s troops was imminent, the sanctions and other measures brought in by Resolution 1970 having failed to prevent the civil war. Initially the intention was to establish a no-fly zone, then to use “all necessary measures” to defend civilians. In turn the coalition took it to mean that Gaddafi’s regime had to be removed.

We therefore went from attempting to prevent a massacre in a particular time and place to attempting to overthrow a sovereign government by the use of military force. The latter in anyone’s language is a war. The fact that our involvement has been limited to naval blockading and acting as the rebels’ air force is not relevant: we have been deploying armed forces in active operations. Rumour has it that we or our coalition partners have supplied weapons to the rebels as well and it seems a shade implausible that there have been no special forces operations in the area.

The only distinction that the White House offered was that there was no danger to American servicemen. That was a matter of good fortune for them, but to suggest that their operations were not thereby a “war” strains logic beyond breaking point. As I tried to show above it is an argument that would cut no ice in the other direction.

We have therefore been, pace President Obama, and continue to be, at war with the sovereign government of Libya. A number of serious questions then arise. For a start, even if the war is legal, what was the legal imperative for the UK’s involvement? What of all the other states who supported the resolution?

The second question concerns the moral justification. If on the balance of probabilities military intervention would save more lives than it would cost then it might well be justified. Needless to say that is difficult to judge, to say the least.

It is true that the fact that we are selective in our use of force by not intervening in, say, Syria, is not an argument against intervening in Libya: if I fail to save ten drowning people it would still be morally correct to save the eleventh, even though I am being inconsistent by doing so.

Apparently we intervened to stop a massacre of civilians by Gaddafi’s forces in Benghazi. Apparently we succeeded. But it also seems that we have little clue as to what happens next. There was no doubt a hope that Gaddafi would flee once Western air power was deployed against him. That faded quickly, to no-one’s surprise: air power tends not to do that.

However, it now seems that Gaddafi is indeed about to fall. What then are our obligations in international law, having toppled him? What plan is in place for a substitute government? What if an Iraqi-style internecine civil war erupts? I have yet to read reassuring answers to any of those questions.

One can easily understand why our leaders support the notion of “liberal intervention”. It is their best chance of being remembered as a statesman rather than a jobbing politician. It is no doubt more professionally rewarding flying to Washington on a private jet and making speeches at the White House than trying to deal with more mundane matters such as the NHS budget, another bank failure or a school closure. But the executive should also consider that if international law is fraught with uncertainty, military action is too, and inevitably risks the most severe consequences in terms of blood and treasure. And if there is one lesson from Iraq, it is surely that removing dictators is only the very beginning of what might be a long and difficult story. Perhaps there will be a smooth transition from Gaddafi to a democratic government supporting human rights and the rule of law. Or perhaps there won’t be.

Friday, 12 August 2011

Template for the pitfalls of fame: the Fatty Arbuckle scandal

I have been published in the New Law Journal Vol 161, 12 August 2011, p 1150 on the trials of Fatty Arbuckle.  It can be found here.

Monday, 8 August 2011

Andrew Turner MP and the death penalty

For Halsbury's Law Exchange, published here

According to the BBC, Conservative MP Andrew Turner is attempting to resurrect the death penalty, if that is not a contradiction in terms. The BBC reports that Mr Turner has said that a full Parliamentary debate should take place about whether the death penalty should apply to those who kill children or police officers. He is endorsing an e-petition to that effect started by maverick blogger Guido Fawkes aka Paul Staines.

It is no great surprise to see something controversial from Staines, who takes pride in stirring up Westminster. It is however surprising to see a sitting MP run with something as tired and improbable as the death penalty, which I had assumed existed in Britain nowadays only as an Aunt Sally for jurisprudence tutorials.

Staines’s petition seeks a “review of all treaties and international commitments which may inhibit the ability of Parliament to restore capital punishment”. These alone would be a formidable obstacle given that in 2003 the UK acceded to the 13th Protocol to the European Convention on Human Rights, which prohibits the death penalty under all circumstances.

There is always a certain level of public support for capital punishment, usually on the ground of retribution – as indeed seems to be Mr Turner’s motivation. Some even think a murderer should be killed by precisely the same means as they inflicted on their victim (raising two interesting questions: (i) who gets the job of carrying it out on behalf of the state; and (ii) what of serial killers?).

But I doubt a majority of the population remains in favour. Even if they were, I would hope that Parliament stands firm and resists reintroducing the death penalty. The whole concept of human rights is to provide a constraint on the power of the legislature; the majority rarely vote for their own oppression.

I say this because the arguments against the death penalty are legion and compelling. The first is the possibility of an innocent person being executed. Timothy Evans is the obvious example and indeed was an important factor in the abolition of the penalty. Mr Turner counters:

"Like many people I have concerns about the possibility of wrongful convictions, so perhaps we should consider whether before a death sentence could be passed, a higher standard of evidence would be needed than 'beyond reasonable doubt' which is used to secure a criminal conviction.

"Some people have suggested that there should be proof 'beyond the shadow of a doubt' before a death sentence ..."

Defining what would constitute “beyond the shadow of a doubt” as opposed to “beyond reasonable doubt” would be an interesting challenge for the most talented legislative drafters. It might simply mean that no-one would ever end up being executed anyway. Historically cases have shown that not even explicit confessions by the supposed killer guarantee certainty (they may have been forcibly extracted, or the confessor might be mentally disturbed in a way that is not immediately apparent). DNA evidence was thought to be the holy grail of criminal evidence when it was first developed, but it whether it would or would necessarily amount to removing the last “shadow” of doubt is questionable.

The second argument is that the death penalty is little deterrent to crimes that are committed in the heat of the moment, and in all cases is less important to any prospective murderer than the chances of getting caught. I am dubious about the various statistics that get bandied about supposedly in support of the argument that the death penalty leads to a reduction in the number of murders; there are so many factors involved in the commission of crimes rate that one has to say at least that the statistics are not compelling. They certainly would not meet Turner’s “beyond a shadow of doubt” standard.

The third and most important argument is that retribution as blunt as the death penalty does not really belong in a civilised society. There is no “humane” method of execution for a start. Moreover, it is highly questionable whether the death penalty is a greater punishment than life imprisonment (some might prefer death to squatting in a cell forever). For the sort of crimes Mr Turner has in mind whole life orders are a real possibility; indeed murderers generally receive much higher tariffs nowadays than two decades ago.

I was not a fan of rewriting history to overturn the verdict against Derek Bentley, for example, or the soldiers executed in the Great War (the former had his conviction posthumously quashed – though he would potentially have faced a retrial if still alive; and the latter received a sort of watered down pardon, with convictions intact, by Parliament in 2006). They were tried and punished in accordance with the standards of their time, and it seems wrong for any number of reasons for later generations to be expending public resources declaring that they know better.

But the point is that standards, attitudes and values have changed. We do not now clamour to attend public executions. We rightly deplore the standards of punishment in some extremist theocracies, as well as the standards of prisons in many countries. Hopefully therefore we can exact punishment without stooping to a murderer’s level.