The Pistorius defence

I would appreciate comment from any lawyerly folks out there.

I haven't been following the Pistorius trial very closely (hardly at all), but is it just me or are the media getting somewhat mixed up by the fact that he appears to be trying to argue, in two completely different ways, that there was not the necessary intent to be convicted of murder?  ("I fired the gun accidentally" [no intent] and "I intentionally fired the gun mistakenly believing that there was an intruder behind the door" [putative/mistaken self-defence]).

The fact that the media seem to be quite confused by it indicates how it might work as a trial strategy in front of a jury, but it is hardly going to wash in front of the Honourable judge.

Consider this from the BBC's Andrew Harding: "He knows that he could be cleared of deliberately killing Reeva Steenkamp, but still be found guilty of intentionally murdering "someone" behind a closed door."

That's not right at all, and Harding is mixing up transferred intent and the victim.  There aren't two murder charges - if without a lawful defence he deliberately fired at "someone" through a closed door that resulted in the death of Reeva Steenkamp then he is guilty of the murder of Reeva Steenkamp.

My enemy's enemy

Why the Liberal Democrats love UKIP, and how Nick Clegg may be the saviour of the United Kingdom.

It is a truism that in politics as in war, my enemy's enemy is my friend. This is being seen in Scotland right now, where Alex Salmond is rooting for a Conservative comeback in the opinion polls down south in the knowledge that the more likely a Tory government in 2015 appears, the more likely Scotland will say Yes to independence in September.

(It must be strange for David Cameron to know that the more likely it appears he will win the UK general election in 2015 the more likely it is it will be the last ever UK general election. The only person I can think of to have perhaps experienced similar emotions is Adolf Hitler in 1933.)

Nevertheless, this truism is something that appears to have been forgotten in much of the commentariat's analysis of When Nigel Met Nick, round 2.

I must confess from the outset that I have not yet had the dubious pleasure of watching this intellectual joust between a somewhat posh, privately-educated, former City commodity trader, MEP and self-proclaimed man of the people, and a somewhat posh, privately-educated, former political advisor, MEP and self-admitted son-of-privilege. However, it is pretty clear that the general consensus was that the UKIP leader Nigel Farage trounced Deputy Prime Minister and Liberal Democrat leader Nick Clegg, leaving Farage 2 for 2, as the Americans like to say.

According to the opinion polls Nick Clegg lost the first debate. he appears to have changed tack for the second resulting in even less success, leading some commentators to opine that in agreeing to debate Farage the Liberal Democrat leader had made an enormous error. He provided a fillip to the Kippers in advance of the European elections, and in the longer run damaged the pro-European cause and his own party, by reminding a broadly Euroskeptic British electorate that the Lib Dems, as well as being in favour of vivisection, chemical warfare, castration of homosexuals, denying women the vote, a 90% top rate of tax and the closure of all private television stations, they are an avowedly pro-European party. (Admittedly, I made up all the other policy positions apart from being pro-European, but given the current political mood in Britain, being pro-Europe or a Lib Dem is about as socially acceptable as any of the others).

Still cannot believe what persuaded Clegg to challenge Farage to a debate, nearly as bad as Cameron's mistake in 2010 to debate Brown/Clegg
— Lord Ashcroft (@LordAshcroft) April 5, 2014

Economics 101 and free speech

http://alj.am/1il8DMZ

Mozilla's co-founder and CEO is stepping down after a backlash over a $1000 donation he made to the Prop 8 plebiscite in California that instituted a constitutional ban on same-sex marriage.

The response of Mozilla's chairwoman, however, has made me even less likely to use their products:

'"She said that Mozilla believes both in equality and freedom of speech and that "figuring out how to stand for both at the same time can be hard"'

Sorry, that's just nonsense. It's not very difficult at all.

Everybody is entitled to freedom of speech and freedom of expression. However, if you are in business and decide to promote someone with particular views, I'm within my rights, as a consumer with freedom of expression, to show my opposition to those views by not buying or using your products.

Don't expect me to pay your wages to allow you to promote causes I disagree with.  So sorry Mozilla, its not hard at all: it's free market economics 101.

The funniest bit of all this has been the reaction of the conservative right. Consider below, some tweets from The Heritage Foundation, "A think tank devoted to the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense."

Back to school for you I think Heritage.

Internet defamation and EU law

Supreme court to hear internet defamation dispute - The Irish Times - Thu, Apr 03, 2014


I had blogged previously on the lack of clarity that surrounds the law on defamation on the internet in Ireland (and to a lesser extent in the UK), when lawyers for Angela Kerins rather remarkably threatened Irishcentral.com for speculating on what Ms. Kerins' salary is (information that was subsequently made public just a few weeks later).

According to today's Irish Times we may get some clarity on some of the issues, though given the backlog of cases awaiting hearing before the Supreme Court quite when that might be is still unclear.

The case is an appeal from the decision in McKeogh v Facebook & Ors. in which a student was incorrectly identified in a YouTube video as having failed to pay a taxi fare, and his name was bandied about on Facebook, YouTube and a number of different forums, in the process of which he was "seriously and nastily defamed" in the words of the trial judge.

(If you are getting a weird message below, ignore it and click where it says 'here' to read the judgment).



I mentioned in the original post that I was not aware of any Irish decisions that litigated the key issues, such as whether an ISP or web host is a publisher, and the extent to which Article 14 of the E-Commerce Directive provides them protection.  This case would appear to address these issues, but the appeal is against the interim injunctions that were put in place over two years ago (Irish 'justice' moves embarrassingly slowly), a full hearing of the issues being stayed until the appeals against the injunctive relief are heard.

Hopefully the Supreme Court will take the opportunity to lay down guidelines which can be applied if and when the substantive claim gets heard.

Nonetheless, any further clarification of the responsibilities and liabilities of web hosts and bloggers with regard to potentially defamatory material is to be welcomed.

The sooner this case gets a hearing the better.

The Oligarchic States of America

It is ironic that at a time when Russia and its oligarchic politics is more at the forefront of American political consciousness than at any time previously, the U.S. is sliding, slowly but surely, into a place where its democracy is up for sale.



Bill Moyers warned about it in a prescient article last week, in the shadow of Republican 2016 hopefuls such as Chris Christie scraping and fawning in front of gambling billionaire Sheldon Adelson in Las Vegas.



The Koch Brothers and the Danger of American Plutocracy | Blog, Money & Politics | BillMoyers.com



 It is a theme that today has been taken up by Senator Bernie Sanders, social democrat Senator from Vermont.

Democracy vs. Oligarchy http://t.co/mMqL1wPDDD pic.twitter.com/b0gIULarwN
— Bernie Sanders (@SenSanders) April 1, 2014

And today, in a widely anticipated decision, following on from the truly awful Citizens United decision, the Supreme Court removed the aggregate donation cap in McCutcheon v FCC.



It is a sad indictment of American democracy when one of its two major parties, after having lost 5 out of 6 presidential elections on the trot, has decided that its strategy for winning is through restricting opportunities to vote and unlimited spending by plutocrats and billionaires.

The Washington Post has included some great infographics on what this all means in money terms (click through graphic for full story).


Dahlia Lithwick has a great take on things on Slate, in which she analyses Chief Justice John Roberts' majority opinion (plurality, technically, Clarence Thomas wants to get rid of all donation limits completely, in comparison to Stephen Breyers who wrote the dissent.

Lithwick writes:

And why does this collective speech matter? Why are we talking about corruption?  Because, writes Breyer: “Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point.” And yes, there is a silent “duh” in there.

She gets to the punch, however, in her analysis of where the real long term impact of this awful decision lies,  which is to make Breyers' highly cynical view of money and corruption in politics a reality.  The dangers of this are real, particularly in circumstances where across the developed world voting and political participation rates have declined as political ideologies have converged on a centre ground and voters' sense of impotence increases:

In which case McCutcheon is a self-fulfilling prophecy in exactly the way Breyer predicts: Money doesn’t just talk. It also eventually forces the public to understand that we don’t much matter. It silences. It already has. 

What a chilling prospect.

The DUP's goal is to kill the Ulster Unionists (with Sinn Féin's help)

Alex Kane has written a very good article in The Newsletter, analysing in the starkest manner I have seen yet the complete failure of Northern Ireland's unionist parties to pass the Ronseal test: they don't do what it says on the tin.

Not the Progressive Unionist Party.

And we're not just talking about the additional adjectives here; I think most people realised a long time ago that they appear to be there just for comedy value: the Democratic Unionist Party seems to be run on Leninist lines of authority; the Ulster Unionist Party have problems with geography; the Progressive Unionist Party has been regressing ever since the sad demise of David Ervine, and NI21 appears to be a reference to its membership numbers.


No, what Alex is getting at is the abject failure of the main unionist parties to put forward a positive case for the union of Northern Ireland with Great Britain.  To be fair to Basil McCrea, NI21 at least can see what the problem is, though time will tell if Basil is the answer (hint: Basil is not the answer, unless the question is what goes well with tomatoes and mozzarella).

Anyway, Alex Kane's article is an interesting read, but there is one aspect of it with which I disagree.  He states

There is absolutely nothing on offer, because the DUP is too concerned with keeping someone in the First Minister’s office, while the UUP is running around trying to find something – anything, it seems – to save itself from further electoral decline.

I think Alex is confusing ends with means.  Here's a wee secret neither the DUP nor Sinn Féin want you to know: Martin McGuinness is never going to be First Minister of Northern Ireland.  The amendments to the process for electing the FM, inserted at the behest of the DUP at St. Andrew's, mean this is never going to happen.

Unionists currently have 13 more seats in the Assembly than Nationalists.  It would require Nationalists to get a net gain of 7 seats before they would be the biggest grouping.  To give an idea of how difficult that would be, the last election saw Unionists come out as before, Nationalists -1 and Others (Alliance) +1.  In 2007 Others gained 2, Nationalists gained 1 and Unionists lost 1.  So over the past decade, Nationalists have made a net gain of zero over unionism.  It's going to be a slow process, to put it mildly.

NI21

But, let's suppose for argument's sake, that Nationalists seem poised to overtake Unionists as the largest designation.  Sinn Féin is easily the largest Nationalist grouping, but the SDLP have retained a sticky (see what I did there?) 10%-12% of the vote.  In the name of saving the FM's name plate for a Unionist, the DUP will hoover up the UUP vote, and the UUP will willingly comply, sounding their own death knell.

For you see, the amendments from St. Andrew's mean that the First Minister is not necessarily from the largest designation: if the largest party of the largest designation is not the largest party overall, then it is the largest party overall that nominates the First Minister.  Under those circumstances the DUP will be able to squeeze the unionist vote in a way that Sinn Féin will never be able to do to the SDLP.

The DUP is always going to be a bigger party in the Assembly than Sinn Féin.

In fact, it quite suits Sinn Féin's longer term agenda to be always the bridesmaid and never the bride, which is why they agreed to the procedure, though I am sure they will complain about the unfairness and a unionist veto should the circumstances ever arise.

So on this one aspect, I think Alex is wrong.  Sinn Féin is never going to occupy the First Minister's office, or at least not in the next 15 or more years.  The DUP knows that, and Sinn Féin know that, but they keep it secret in another of their little understandings, to allow the DUP to permanently squeeze the life out of Mike Nesbitt's party.  And with his witterings today about Unionist unity, Mr. Nesbitt took one more step towards leading his party into oblivion, and one step back from making the case for the union.

And as for Sinn Féin, their job just gets that little bit easier.

Do whites really run scared of black history?

In my blog post yesterday, I encouraged readers to read Ta-Nehisi Coates' essay, 'Other People's Pathologies, in The Atlantic.  As I normally do, I tweeted a few times with a link to my blog post:

Without slavery there is no democracy; without slavery there is no American dream; without slavery there's no America http://t.co/s5ghnITEgG
— Chris Connolly (@Cripipper) April 1, 2014

The United States didn't save black people; black people saved the United States of America: Ta-Nehisi Coats nails it http://t.co/s5ghnITEgG
— Chris Connolly (@Cripipper) April 1, 2014

Black culture, white supremacy, and American democracy. http://t.co/s5ghnITEgG
— Chris Connolly (@Cripipper) April 1, 2014

What's been fascinating to observe is the reaction to it, and by that I mean the relative lack of reaction or interest.

Normally when I tweet a blog post, no matter how banal, it registers about 5 or 6 click-throughs from Twitter to the blog post.  Each of these tweets got somewhere between 0 and 1 person clicking to read it, at roughly the same times of the day as I would normally tweet the link.

Regular sources of traffic to the blog (from the UK), such as Lib Dem Blogs and Lib Dem Voice have been noticeably quiet in terms of traffic.

Have I failed to sell the blog post as well as others I have written, or is indifference to black history as bad as (or perhaps even worse than) I alluded to in the post itself?  Writing the post has been almost as enlightening as reading the Coates essay.