State's Appeal Against Pistorius Murder Acquittal Allowed

In a welcome move, at least for those of us who had serious concerns about how Judge Masipa dealt with dolus eventualis in the Oscar Pistorius judgment (see my previous blog post on the matter here), Judge Masipa has permitted the State's appeal, which will now be heard in front of the South African Supreme Court.

To recap, in a nutshell, without making it clear in her judgment why and on what grounds, Masipa J. had to have accepted that Oscar Pistorius did not foresee that firing four bullets through a closed toilet door risked causing the death of the person behind the door. You don't have to be a lawyer to see the problem with that (though the lawyers out there may note that the State got a lucky break that the Honourable Judge didn't explain her reasoning fully in the original judgment, for if she had perversity could well have been the only avenue available for the appeal, and that is a very difficult bar to get over. As it is, Masipa J. accepted that it is a point of law as to whether she correctly applied the principle of dolus eventualis to the facts.)

The Guardian's liveblog of the original judgment had a useful explanation of what happened:

Read the State's grounds for appeal below.

  State papers for Oscar Pistorius sentencing appeal by eNCA.com

Eric Garner and Mike Brown: the problem is the system

I am so frustrated by what has happened that I have found it difficult to take a step back and write a measured blog post about it, and instead have been engaging in debates/arguments on Facebook. I still haven't coalesced all my thoughts, so instead am just going to flag a point I made in response to someone on Facebook, which somewhat gets to the core of my thoughts on this troubling issue.

It is impossible, in my mind at least, to say "I am on one side on Mike Brown and the other side with Eric Garner", because in both cases the problem is the same: a District Attorney is so scared of pissing off the police union that he chooses not to pursue criminal charges against a police officer, even if he does go through the pantomime of pretending to do so. In both cases (we know in Ferguson, and we can assume in Staten Island), the prosecutor bent over backwards to avoid having the issue go to a full, public, trial, during which the testimony and evidence would be tested at length. By subverting and perverting the grand jury process Bob McCullough also further undermined African Americans' faith in the justice system. The son of a cop who was shot, he refused to recuse himself, but had neither the balls to take a decision not to press for an indictment nor leave the question of guilt or innocence to a jury in a trial. It's almost as if both DAs were scared of what the outcome might be, and intentional or not, the end result is that cops in America have become judge, jury, and executioner. That's not a democracy, that's a police state.

12/10/14 UPDATE:

The New York Times has a good piece expanding, in rather more measured terms, the point I was making above:

Grand Jury System, With Exceptions, Favors the Police in Fatalities

The Puzzling Problem of the Pistorius Plea

A blog post by Felicity Gerry QC has today left me thinking again about the verdict in the Oscar Pistorius trial.  I need to disclaim at the very start that I saw very, very little of the actual trial and thus did not have the evidence in front of me that was placed in front of the judge.  However, given the provocative title of Ms. Gerry's post, 'The Oscar Pistorius verdict: was it a miscarriage of justice?', I was slightly surprised at her conclusion that

"justice was done and seen to be done. It may or may not be the truth, but on the available evidence, the important standard of proving serious criminal charges beyond a reasonable doubt was maintained."

What puzzles me about the verdict is an issue that I highlighted back in April,  which is that the Pistorius defence boiled down to something along the lines of "I killed Reeva when I accidentally fired through the toilet door thinking there was an intruder behind it."  From what I have seen and read, in her verdict Judge Masipa has not adequately dealt with the issue of transferred malice, and the blurring of what were essentially two separate defences offered by Pistorius: 1) That he acted in putative self-defence (which would require an assessment of whether it was reasonable under the circumstances as he perceived them for Pistorius to think that the force he used to avert the perceived threat was reasonable); or 2) He fired the gun accidentally.

This problem with the verdict has been highlighted by a number of South African legal scholars, and put very clearly by Pierre de Vos, of the Constitutionally Speaking blog, when he wrote:

The state can only prove intention via the concept of dolus eventualis [indirect intention/transferred malice] where the state can prove that while Pistorius might not have meant to kill the victim (Reeva Steenkamp or the putative intruder), he nevertheless foresaw the possibility and nevertheless proceeded with his actions (in legal terms he nevertheless reconciled himself to this possibility and went ahead).

In 2013 Judge Fritz Brand reminded us in the Humphreys case that it is not sufficient for the state to show that the accused should (objectively) have foreseen the possibility of fatal injuries to convict him or her of murder on the basis of dolus eventualis. The state must show that the accused actually foresaw the possibility of his actions killing someone (in this case, the person – whomever it might have been – behind the toilet door). It is not about what a reasonable person would have foreseen (which would speak to whether he is guilty of culpable homicide).

In this case the judge found that Oscar Pistorius did not actually (subjectively) foresee as a possibility that he would kill the person behind the toilet door when he pumped four bullets through the door. 

Like Mr. de Vos, when I wrote my original post I could not see how the judge could fail to come to the conclusion, on the facts known, that Pistorius did not foresee that possibility.  As far as I can see the issue was not properly dealt with in the judgment either.  What is more puzzling is that an acceptance of the argument that he fired the gun as a result of an involuntary muscle spasm would then be somewhat inconsistent with a guilty verdict on the count of culpable homicide.

While it would certainly have led to an undramatic trial, I always felt that by trying to prove the intentional murder of Reeva Steinkamp, the prosecution was aiming too high.  The state allowed Pistorius's defence to cloud the issues.  The simplicity of the question at the heart of the tragedy was overshadowed and drowned out in the melodrama of the saga of Oscar and Reeva, but it remained a simple question: Did Oscar Pistorius fire four shoots through the door believing that there was an intruder on the other side, and if so did he foresee that it could kill that intruder?  The issue of guilt or not on the charge of murder would hinge on whether it was reasonable for him to use lethal force. From what I know of South African law I believe the answer inescapably points to 'No'.

As Pierre de Vos concluded:

In the Pistorius case the question is whether there was any reason to believe Pistorius did not share the foresight that his actions could lead to the killing of a human being. The judge found that there was. The question is whether the facts support such a finding.

Perhaps the judge felt compelled to find as she did because the prosecution, in her view, failed to make this point beyond reasonable doubt.  If so, it is an appalling oversight on the part of Gerrie Nel, the prosecution barrister and in which case then perhaps Felicity Gerry is correct, and justice was done and seen to be done, however imperfect it may be.  But in the absence of clearer reasoning from Judge Masipa, we are left to guess, which is unsatisfactory from everybody's point of view.

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.

The State of Missouri Just Can't Wait to Kill

I had previously mentioned the case of Herbert Smulls, a man executed by the State of Missouri before the United States Supreme Court had even finished deciding on his petition for a stay of execution.

CBS and The Atlantic's Andrew Cohen (a must-follow for anyone interested in the U.S. criminal justice system) has written a follow-up piece on Smulls, and it appears that the behaviour of Missouri officials has not gone unnoticed by either the 8th Circuit or the Supreme Court.

Chilling effect on the internet?

This story originally caught my attention when I saw a tweet from Niall O'Dowd as I boarded a plane for a week's holiday in the U.S. Virgin Islands (that's not relevant to this post, I just like rubbing it in).

@NiallODowd Have you taken down the John Spain article?
— Chris Connolly (@Cripipper) February 15, 2014

O'Dowd's tweet linked to a story in Irish Central (his U.S.-based news website), outlining the circumstances under which a story by John Spain relating to the salary of the Chief Executive of the Irish charity REHAB had been taken down after legal threats from Ms. Kerins' solicitors.  I have made reference to Angela Kerins in a previous post here (REHAB this week released her salary, just FYI: €240,000.  No, I did not accidentally slip on an extra digit.)

O'Dowd stated that the site's host, Clickability, had been warned to take down the story, but didn't actually say that it had been taken down (which would have been, from a legal perspective, a very surprising decision on their part.)  After having read the story I was surprised to notice that the story O'Dowd was referring to was no longer on the site, particularly given O'Dowd's statement in the article "Thank God for the First Amendment" and so tweeted to him asking about it.  I received no reply, so was therefore interested to see this article in Tuesday's Irish Times.

Niall O’Dowd to seek legal advice after online opinion article about Rehab taken down - The Irish Times - Tue, Feb 18, 2014

Quis custodiet ipsos custodes?

This classical Latin question of 2,000 years ago has no greater relevance than to Ireland today.  The national police force, An Garda Síochána (the Guardians of the Peace), is commonly referred to in English as 'the Guards'.  After a series of policing scandals, in 2005 an Ombudsman was established, the Garda Síochána Ombudsman Commission (GSOC), to provide an answer to Juvenal's question of who will guard the guards.

The Commission was partly modelled on the equivalent office in Northern Ireland, but with fewer and blunter teeth.  Its relationship with the Gardaí has been, it has to be said, a tense one (€) over the years, characterised by suspicion (€) and misunderstanding.  GSOC has made some mistakes along the way that caused little love to be lost (€) between the two organisations.  This sits atop the natural loathing that any police organisation has for a body designed to oversee it.  It is just the nature of the beast.

Nonetheless, from a human rights perspective, to have a permanent police ombudsman is something of which Ireland should be proud, and places it in a very small number of jurisdictions in the world to have such a set-up.

It is natural, therefore, that Irish people should be concerned by reports in the press, first broken by The Sunday Times, that GSOC became concerned that the security of its offices had been breached.  They employed a British security company to sweep their offices, in the course of which they discovered three 'anomalies'.  Gavan Reilly outlines what they were in an excellent blogpost, that gets to the heart of a lot of this puzzling issue, or Sunday Times subscribers can recap on the detail from John Mooney here, a screengrab from which I have included below (click to zoom).  It should also be noted that Ireland should be grateful to the 'British' Sunday Times (as members of the Government have repeatedly referred to it) and John Mooney in particular, for pursuing this issue when other Irish media outlets sucked up the Government spin and spat it out again to its readers and viewers.

There are a lot of questions remaining, but to distil what they are, I want to go back through the chronology of what happened, and add my own thoughts and speculation.

The judge with an eye on history

The Washington Post today has an interesting profile of Judge Arenda Wright Allen who penned the historic judgment (covered in my last blogpost) overturning Virginia's ban on gay marriage, surely, with an eye in its place in the history books.

              Arenda L. Wright Allen

Click here for the story. 

When crossing the street became criminal

Way back in the day when for a few months I first gave writing a blog a bash, I wrote a post about an elderly British gentleman and his experience of being arrested (using what would not pass for reasonable force in a British court) and his subsequent experience of the American criminal justice system.

His experience came to mind last month, in the much reported case of an elderly Chinese man who was again subjected to what would appear to be an unreasonable use of force by the NYPD during his arrest.

In both cases the men were arrested for the uniquely American crime of jaywalking.  I asked on Facebook at the time why was jaywalking an issue for American police.  A friend (hi Carm!) came back with the not unreasonable suggestion that:

Amanda Knox and a Broken Justice System

I got really annoyed on Thursday evening, when I read a comment on CNN in an article entitled 'Amanda Knox retrial verdict: Six things to know'.

Firstly, why was she back on trial?  Fair enough, that's a question the answer to which anyone interested in the verdict should know.  Second up:

Had I been eating cornflakes I would have choked on them.  "Renewed questions about the effectiveness of Italy's justice system"?  Here is a line that (if it wasn't) might as well have been lifted directly out of a release from Amanda Knox's well-funded PR machine.


Compare and contrast with its coverage of the execution of Troy Davis, a man put to death in Georgia despite the fact that most of the original prosecution witnesses had subsequently retracted their testimony, alleging they were put under pressure to testify by the police and the DA.

Martin Corey held for four years in prison without trial?

So says a BBC news report on his release.

This is a very sloppy piece of reporting by the BBC who appear to have fallen for Corey's supporters politically-charged spin on events, rather than the legal reality.

Corey was given a life sentence for murder.  As this guide from the Ministry of Justice makes explains:

Released lifers:

• are subject to a life licence which remains in force for the duration of their natural life;
•  
• may be recalled to prison at any time to continue serving their life sentence if it is considered necessary to protect the public

There has been all sorts of waffle put about by his sympathisers about the "lack of due process", that he never "faced a fair trial" or that he was "never questioned by the Police."  All of this, while true, completely misses the point: there is no need for him to be charged with anything to have his licence revoked, nor is there any need for him to be questioned by the Police about anything.

All that is needed is a recommendation by the Parole Commissioners that he has breached the conditions of his licence or is a danger to the public, and his licence is revoked and he returns to prison to continue serving his life sentence.  Corey did face trial, in 1972, and the four years he has spent in prison since 2010 are part of the sentence he received then.

Remember, these are the same Parole Commissioners who recommended his release, on licence, in 1992.  They have the authority to revoke it.  But a parole hearing is not a mini trial, and even with that, Mr. Corey did have a Special Advocate (a government appointed barrister with security clearance to view the confidential material which is withheld from Corey and his lawyers) appointed to represent his interests in the proceedings.

The initial decision by a single Parole Commissioner to revoke his licence was then reviewed by a panel of Commissioners, with the Special Advocate present to advance Mr. Corey's interests.  As the Supreme Court judgment that denied his application for judicial review of the decision noted:

On 15 August 2011 the panel gave its decision. This comprised both a closed and an open judgment. In a detailed ruling which formed part of the open judgment, the panel stated that it was satisfied that Mr Corey had become involved in the Continuity Irish Republican Army from early 2005 and that he was in a position of leadership in that organisation from 2008 until his recall to prison. It was concluded that the appellant posed a risk of serious harm to the public at the time of his recall. 

Mr. Corey's lawyers applied for judicial review of this decision, and at first instance the High Court held that Mr. Corey and his lawyers had been given insufficient details of the 'gist' of the alleged breaches of his licence that led to his being recalled to prison.  This was overturned on appeal by the Court of Appeal of Northern Ireland, which held that "the material provided to the appellant and his advisers was sufficient to allow him to give effective instructions to those representing him. There was therefore no breach of article 5(4) of the [European] Convention [on Human Rights]:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

There were technical arguments about whether the High Court had the authority to grant Corey bail after concluding that the original decision to revoke his licence had been unfair (the Supreme Court held, rightly in my opinion, that it did not), but the bottom line is that Martin Corey was not held for four years without trial, and it was not 'like internment'.

I am slightly uncomfortable about the fact that one of the conditions attached to his renewed licence is that he doesn't talk to the media, but I am understand the rationale behind it.  However, I doubt whether the blanket ban would withstand a challenge under Article 10 (Freedom of Expression) in the ECtHR.

In any case, this was a very poor piece of reporting from the BBC on this matter.

UPDATE: UTV are at it as well, describing his licence as 'bail conditions'.

Really Northern Ireland, if you are going to cover legal matters, don't use journalists who don't understand the law.

Oh, and

BPP: Business Priority Profits

Alex Aldridge over at Legal Cheek brought to my attention BPP's announcement that they were offering a "career guarantee" to new Bar Professional Training Course (BPTC) students, giving them the opportunity to take the Legal Practice Course (the route to becoming a solicitor) for free if within 12 months of completing the BPTC at BPP they have not obtained pupillage (the apprenticeship necessary for becoming a barrister) and take up the offer within that period.

The Accidental Terrorist

So, it's all over bar the shouting in the David Miranda judicial review, heard in front of Lord Justice Laws (whose name I don't think I will ever stop finding amusing.  Once when I was meant to be revising for the GDL I spent longer than I care to admit searching to see if I could find a case that had been heard by (the then) Mr. Justice Laws and Mr. Justice Judge. I succeeded. What does that say about me?), Mr. Justice Ouseley and Mr. Justice Openshaw.

Carl Gardiner did a tremendous job on Twitter and subsequently on his blog live-tweeting and analysing both days' proceedings in court.  As former Court of Appeal judge Sir Henry Brooke noted

.@carlgardner @CivilLitTweet  Informative tweets from two courts today have shown how valuable this new mode of media communication can be
— Henry Brooke (@HenryBrooke1) November 7, 2013

Unlawful Questioning of David Miranda

A judgment was handed down on Wednesday that raises further questions about the legality of some aspects of David Miranda's detention at Heathrow in August.  I have been mulling the contents of the David Miranda judicial review hearing, and should have a blog post on it soon, but in the interim I want to look at the potential bearing that this judgment, Elosta v Commissioner of the Met, has on the facts of Miranda's case as we (I) know them.

Essentially, it affirms the right of someone being detained under Schedule 7 of the Terrorism Act 2000 to consult a solicitor before being interviewed, face-to-face and in private.  None of these are particularly controversial (and the Met Commissioner conceded and apologized for the fact that Mr. Elosta was not given privacy to talk to his solicitor over the phone), but this is Schedule 7 we are talking about here, and this is also the Met.  It was the Met's position that someone being detained under Schedule 7 at a place other than a police station did not have the right to consult a solicitor, and if they did they were only to do so under conditions dictated by the police.  To be fair to them, this is what a straight reading of the legislation could imply, but one that was sensibly rejected by Mr. Justice Bean.

Looking again at the details of the Miranda detention, and reading it along with the judgment in Elosta, it seems to me that much of the questioning of Miranda was probably unlawful.

Journalism is apparently terrorism: Met Police

Since writing my last post a few days ago about the David Miranda case, further details have come out about the contents of the 'Port Circular' that was sent to Heathrow requesting Miranda's detention while in transit on his way back to Brazil.

From Saturday's Guardian:

We assess that Miranda is knowingly carrying material, the release of which would endanger people's lives. Additionally the disclosure or threat of disclosure is designed to influence a government, and is made for the purpose of promoting a political or ideological cause. This therefore falls within the definition of terrorism and as such we request that the subject is examined under schedule 7.

UKBA: Catch 22?

An interesting conundrum cropped up at Southwark Crown Court this morning.

The Defendant, an Algerian national (there was no mention that he had been in the UK unlawfully when the offence was committed), was convicted of a crime.  A matter concerning his appeal of this conviction was due to be heard this morning, but there was a bit of a problem in that the Appellant was not present in Court. (Things were not helped by the fact that neither were any legal representatives on his behalf).

The interesting point is that the reason the Appellant was not present was because since his conviction he left the UK, and has been refused permission to return to the UK to attend his appeal hearing. The reason: the conviction that he seeks to appeal.

That's one Joseph Heller would have been proud of.

Journalism as Terrorism?

David Miranda's detention at Heathrow Airport in August kicked off a storm of commentary as to whether this was an unlawful use of the powers available under Schedule 7 of the Terrorism Act 2000.  We came a step closer today to a High Court decision as to whether it was or not, with a number of applications by Miranda's legal team being heard (and rejected), and a full hearing scheduled to go ahead next week.

At the time I was very strongly of the opinion that the use of Schedule 7 powers, which grant officers the power to question and search anyone at a port of entry to the United Kingdom without reasonable suspicion, to detain and search Miranda was unlawful.  The (limited) disclosure of documents obtained today by Miranda's has done nothing to dissuade me of that opinion.

(As a side note, it may be of interest to my American friends that the case of David House demonstrates that the Department of Homeland Security asserts the same right to search at the US border.  What is interesting is that while in the US the Customs and Border Patrol (CBP) simply asserted that they had the inherent right to seize and search electronic devices under the 'Fourth Amendment Border Exception'.  In the UK the British government had to resort to the use of anti-terrorism legislation to achieve the same effect.)