Monday, 16 June 2014

Revenge Porn

Revenge Porn

Julian Huppert MP, a Liberal Democrat Member of Parliament, has called for a new law to outlaw “revenge porn”.  Now for those who don’t know, revenge porn is the name given to the publishing online of intimate photographs of an ex-partner for the purposes of taking revenge for some real or imagined offence by the “victim”.

Mr Huppert correctly points out that “[l]ives can be ruined, personal relationships destroyed and jobs lost”.  That’s terrible, but it raises a couple of important questions: a) does the harm necessitate yet another criminal offence?  And b) is the criminal law an appropriate tool for dealing with this type of behaviour, i.e. should “revenge porn” be a crime?

Over the past 20-years or so, it has become very trendy for Governments in the UK to create new criminal offences – I believe that by the end of the last Labour government they had created more new crimes then every other government before them put together!  As a student barrister, I was taught that going to law, i.e. suing somebody, should be a last resort.  Equally, creating a new crime should be a last resort for a government.

Let’s have a quick think about what “revenge porn” actually is.  These are photographs of people, usually but not always women, in intimate situations – they may be straightforward nudes or photographs of the individual in flagranti.  They are images taken with the person’s permission; if they were not then taking the photographs would already be a crime under section 67(3) of the Sexual Offences Act 2003.  They are photographs of adults; again, such photographs of people under 18-years of age are already criminal.

Taking a common sense approach, we all know that if we allow somebody else to have an intimate photograph of ourselves then we are taking a risk that the image will appear online or will be seen by somebody else – whether deliberately, accidentally or as a result of the device they are stored on being stolen.  To my mind, criminal law is very much a bandage for covering a wound.  It is not great at preventing crime happening… if you don’t believe me then take a look at how many crimes happen every year, all committed by people who have not been put off by the illegality of their actions!

Prevention is far better than a cure.  It occurs to me that children should be taught to think their actions through and consider what the consequences of an action might be.  Thus, when they reach their late teens (and even far greater ages – anybody remember Leslie Grantham?) they might consider the possible consequences of sharing these types of photographs and not do it!

In addition, we might try teaching children that when somebody shows a great deal of trust in us we should not break that trust.

One of the things I encounter regularly and which I see as a major problem in our society is the abdication of responsibility.  I represented somebody at trial once who took a taxi to court each morning.  He was on benefits and eventually ran out of funds for his taxi.  Rather than accept that he should have just taken a bus the short distance from home to court he blamed the court for not paying for his transport!  When I did legal aid work, I regularly came across parents who blamed teachers, police, courts and anybody but themselves for their child’s inability to accept authority.  Duty solicitors will recognise the type who shows up at court for their trial having done nothing to prepare their case or get a solicitor and expect to rely on the duty only to become angry when they find the duty won’t help them.

Politicians add to the sense that everything wrong in your life is somebody else’s fault with constant calls to criminalise every type of reprehensible conduct.  Ultimately, “revenge porn” photographs are pictures that an adult has agreed to allow somebody to take or keep.  Quite frankly, if you are old enough to vote then you are old enough to know that when you take a picture of your tits, balls or whatever there is a chance it will end up on the internet and old enough to make that decision.

Turning back to the two questions I originally posed myself: does the harm necessitate a new criminal offence?  I answer this in the negative.  There is potential for harm to the person in the photograph but the harm is obvious and easily foreseeable at the time the photograph is taken.  The people we are talking about are adults with the power to join the army, marry and vote at elections, if they cannot weigh up the risks and benefits then they shouldn’t be allowed to leave their house in the morning!

The second question was: is the criminal law an appropriate tool for dealing with this type of behaviour?  Criminal law is a sledgehammer that should be used in appropriate circumstances.  It is not good at shaping behaviour.  Would a criminal offence stop the photographs circulating online?  Not a chance.  Would it stop an angry ex-boyfriend who feels he’s been wronged posting a photograph online?  No, it doesn’t stop people committing other crimes so why would it stop this?

We each have decisions to make in life.  We each know the risks and benefits of each decision we take.  Each one of use must accept that we are responsible for those decisions and their foreseeable consequences.

Thursday, 5 June 2014

Criminal property

A real life burglar... no idea why police can't catch them given they all
wear stripy tops and carry bags marked "SWAG"

Tomorrow I am at a west London Crown Court starting a trial for possessing criminal property, contrary to section 329(1)(c) of the Proceeds of Crime Act 2002.  Let me begin by assuring you that this is a provision that does two things: a) it really pisses me off; and b) it shows why the legislature should not put its faith in the prosecuting authorities only using criminal offences for the purpose the legislature intended.

My case is straightforward, prosecution say my guy has a stolen laptop in his possession and that he knew or suspected it to be stolen.  If they are correct then he is guilty, if he bought it honestly then he is not guilty.  Easy.

You may be forgiven for thinking that possessing stolen property is an offence called “handling stolen goods”.  If you thought that then you are correct, section 22(1) of the Theft Act 1968 reads:

“A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be  stolen goods he dishonestly receives the  goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.”

So, to convict somebody of handling the prosecution would have to prove that the laptop was stolen, that he knew or believed the goods to be stolen and having such knowledge dishonestly receives the goods.  The dishonesty part is important here; let us say that John offers Mark a laptop, which Mark recognises as having been stolen from Lucy.  Mark agrees to buy the laptop from John so that he can return it to Lucy.  In those circumstances, he is accepting stolen goods that he knows to be stolen but he is not acting dishonestly so he is not guilty of an offence.  Obviously, if he intended to keep the laptop rather than return it he would be acting dishonestly and would be guilty of handling.

Now, let us turn to section 329(1) of the 2002 Act, which reads:

“A person commits an offence if he—
(a) acquires criminal property;
(b) uses criminal property;
(c) has possession of criminal property.”

Section 329(1) creates three ways in which an offence can be committed, i.e. by acquiring, using or possessing criminal property.  This section must be read in conjunction with section 340(3), which defines “criminal property”:

“Property is criminal property if—
(a) it constitutes a person's benefit from criminal conduct or it represents such a benefit (in whole or part and whether directly or indirectly), and
(b) the alleged offender knows or suspects that it constitutes or represents such a benefit.”

So, to prove an offence of possessing criminal property the prosecution need only to prove that the defendant had possession of something that is the “benefit” of a crime and the defendant needs to suspect that the property represents such a benefit.  Because it is much easier to prove a suspicion than a belief, as required for the Theft Act and because there is no need to prove any dishonesty at all the prosecution find it much easier to secure a conviction for possessing criminal property than for handling stolen goods.  In our example with John, Mark and Lucy, Mark would be guilty of possessing criminal property even where he intends to return it to Lucy because there is no need to be dishonest.  Mark might well have a defence, but remember in the Theft Act the prosecution must prove dishonesty, there is no requirement for Mark to prove anything.  In the possession offence, it is for Mark to prove his defence, so we can see that this offence effectively reverses the burden of proof for Mark.

Like me, you may be thinking that describing a stolen laptop or TV as “a person’s benefit from criminal conduct” is a bloody odd thing to do.  The wording looks daft as a brush for a very good reason; section 329 is designed to unify and replace old offences under the Drug Trafficking Act 1994, Criminal Justice Act 1988 and various offences relating to Scotland and Northern Ireland.  When Parliament sat down to write this piece of legislation it was trying to bring to justice drug smugglers, gangsters and those who work for them ferreting away their ill-gotten gains.  In other words, Parliament’s intention was to prosecute money launderers.

You can see this clearly when you look at the defences to possession of criminal property, which include making an authorised disclosure to the authorities before taking possession of the criminal property.  Thus if you are a lawyer who is holding money for a client you suspect may have got it from crime you can report this to the police before you take the loot and your back is covered… well until your gangster client finds out and you wake up with a horse’s head on your pillow!  Another defence relates to crimes committed overseas where the activity was lawful… these are not defences that are ever likely to apply to stolen TVs and computers!

At no point, did Parliament intend this heavy-duty legislation to be used to criminalise a the type of person who buys an iffy tele from a bloke in the pub… they didn’t need to do that because it was already illegal!

This leads us on to a very important question: why do the Crown Prosecution Service insist on charging inappropriate offences when there are offences designed for the precise facts of their case?  Around 2004, I started to notice handling charges being preferred with possession of criminal property as an alternative count.  It was obviously being done so that if the CPS failed to get home on the proper charge they had the easier one to fall back on.  10-years later and they don’t even bother trying to get a conviction on handling the only reason I can think is that when you have to prove extra points the trial takes slightly longer resulting in higher costs.  So, the prosecution pursue these inappropriate charges simply to save money rather than to see justice done properly.

Does it make a difference in practice?  We’ve already seen that in some cases charging s.329 instead of handling stolen goods results in an effective reversal of the burden of proof thus making it harder for an innocent defendant to prove their innocence.  You’ll also notice that handling and possession of criminal property have a maximum sentence of 14-years-imprisonment, so you might think it a little unfair that the prosecution can get you sent to prison for just as long by using an offence that requires far less evidence.  Also, handling is an offence of dishonesty.  Prospective employers may make a decision about hiring somebody who has proven themselves to be dishonest in the past, whereas possessing criminal property has no dishonesty element to it.

Although this post was written before the start of the trial – I have held it back until the conclusion so as to avoid any problems.

After the case, I spoke to the police officer about why they use money laundering legislation rather than the Theft Act.  He pointed out that for every successful prosecution of Proceeds of Crime Act offences, his team receive a share of any cash recovered.

Sunday, 1 June 2014

Emotional abuse of a child: Cinderella’s Law

There’s been a lot of talk on the TV, radio and in the press over the past couple of days about the introduction of a new criminaloffence to outlaw the emotional abuse of children. 

Because all new laws involving children are now required by the Ministry of Silly Names to have a silly name, this proposed law is called the Cinderella Law.  Presumably because the ugly sisters neglected her and subjected her to regular verbal abuse.

I heard a solicitor, described by the radio presenter as a “children’s lawyer”, on my radio yesterday explaining how we should avoid introducing this law because it would be “impossible to define” and difficult to implement.  With respect, laziness is one of the worst reasons not to do something if it is important enough to need doing. 

In this instance, there is a far better reason for not introducing this Cinderella Law.  I point to section 1 of the Children and Young Persons Act 1933, which already criminalises emotional abuse and child neglect.  It reads:

“(1) If any person who has attained the age of sixteen years and [has responsibility for] any child or young person under that age, wilfully assaults, ill-treats, neglects, abandons, or exposes him, or causes or procures him to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause him unnecessary suffering or injury to health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement), that person shall be guilty of a misdemeanor, and shall be liable… to imprisonment for any term not exceeding ten years”

It’s a bit wordy but would this 81-year-old law protect a modern-day Cinderella?  Well, yes it would.  “Ill-treats” sounds old-fashioned to the modern ear but its meaning is easy to decipher.  It’s not a physical assault as that is covered by “wilfully assaults”.  It’s not neglecting, abandoning or exposing a child as they all get their own mentions.  Archbold, the criminal lawyer’s bible, tells us, at 19-386, that to make out an allegation of ill-treatment, “bullying or frightening will suffice”.

How often are cases of ill-treatment prosecuted?  Well I don’t know and I doubt that there are any figures kept for that specific part of s.1(1) of the 1933 Act.  I've certainly acted in such a case where the child accused the parents of, among other things, emotionally abusing him.  In that case, the child told his teacher that his parents would tell him they wished he’d never been born, that he was worthless, that they wished he was dead and that he was not as good a person as his siblings.

So, should we introduce a brand-spanking new law to do exactly what a perfectly good 81-year-old law does?  No, I don’t think we should.