Wednesday, 29 August 2012

All In The Mind

Wed Aug 29, 2012 2:08pm BST

Insight - Neuroscience in court: My brain made me do it

"He was once a respected pediatrician, loved by patients and their parents for over 30 years. Now DM faces trial for pedophilia [sic], accused of making sexual advances towards little girls in his care.

Scientific experts will argue in court that his damaged brain made him do it, and his lawyers will ask for leniency.

It's the latest example of how neuroscience - the science of the brain and how it works - is taking the stand and beginning to challenge society's notions of crime and punishment.

The issue has been thrown into the spotlight by new technologies, like structural and functional magnetic resonance imaging (MRI), positron emission tomography (PET) scans and DNA analysis, that can help pinpoint the biological basis of mental disorders.

A series of recent studies has established that psychopathic rapists and murderers have distinct brain structures that show up when their heads are scanned using MRI.

And in the United States, two companies, one called No Lie MRI and another called Cephos Corp, are advertising lie-detection services using fMRI to lawyers and prosecutors."

http://uk.reuters.com/article/2012/08/29/us-neuroscience-crime-idUKBRE87S07020120829?rpc=401&feedType=RSS&feedName=healthNewsMolt&rpc=401

Neuroscience in court: Can we blame the brain? 

http://www.tradearabia.com/news/HEAL_222522.html

Nigel

With Tragic Consequences For The Sufferer And For Society

June 2011

Perspectives on depression, gender and crime: Depression sometimes masked, missed and misunderstood

"This article offers both a literature review, and perspectives on the definition and nature of depressive illness, its various modes of presentation, and its significance in male, female and adolescent populations.

It provides a brief review of some of the ideas about the aetiology of depression, outlines how to recognize it and discusses its relevance to forensic populations.

Finally it suggests how early detection of depression and, consequently, more adequate access to treatment intervention, can be facilitated.

Unfortunately, the presence of depression is sometimes overlooked and therefore missed (particularly in males) sometimes with tragic consequences for the sufferer and for society."

Sarah Hodgkinson and Herschel Prins, University of Leicester
Probation Journal, June 2011, (58)2, p. 137-154

Nigel 

Should Be Grounded, Realistic And Not Be Populist Or Punitive In Nature

June 2012

Professionals’ understanding of government strategies for the management of child sexual abusers

"This article discusses contemporary professional understandings of the UK Government’s attitudes to and policies around the management of child sexual abusers.

This study is based upon empirical qualitative research with a range of professionals' working in or around the area of child sexual abuse (practitioners, academics and members of the media) (n = 28). The research used semi-structured interviews which were interpreted through qualitative (thematic) content analysis.

Results indicate that the professionals sampled believe that the government misperceives child sexual abuse, focusing on risk reduction and public protection rather than treatment and reintegration. The participants also argued that although there are currently some good policies and intra-agency relationships around child sexual abuse in the UK, these could be built upon.

The majority of the participants were against the public disclosure of sex offender information, believing that it is not a realistic approach in reducing the sexual abuse of children and therefore it should not be implemented in the UK.

These findings suggest that current and future policy on child sexual abuse should be grounded, realistic and not be populist or punitive in nature."

Kieran McCartan UWE, Bristol
Probation Journal, June 2012, (59)2, p. 124-137

Nigel

Just How 'Progressive' Are You WIlling To Fight For?

Tuesday, 28 August 2012

Progressive Sexuality

"The ever-excellent Paul Bernal at UEA responds on his blog to a call for submissions to Labour Left’s ‘Red Book II’, by Dr √Čoin Clarke, with a series of recommendations for any progressive party regarding digital policy. As I tweeted earlier, I agree with his suggestions (see here).

Although a Lib Dem member (who is debating renewing his membership) rather than a Labour-backer like Bernal, I thought the idea of setting out a series of progressive socio-legal policy objectives is a useful one, and one that I've found myself thinking about this morning in the context of sexuality."

http://lawandsexuality.blogspot.co.uk/2012/08/progressive-sexuality.html

My comment to Chris:
"Abolish indecent image offences (particularly 'Making' (i.e. downloading) - POCA1978 and 'Possession' - CJA 1988), as being 'Sexual Offences'.

Keep them as an 'OPA'/'Extreme’-type offence*, if ***one must***, although even that is not desirable or necessary.

http://criticalestoppel.blogspot.co.uk/2012/08/why-owning-indecent-images-of-children.html

At least be consistent.

'Taking' only to be 'Sexual', if decided to be, by a court, as for any other 'Sexual' activity, as defined in the Act.

Dr NL Oldfield"
*to go, in any case, in time.

Nigel

Monday, 27 August 2012

What Is 'Imprisonment'?

76 Meaning of “custodial sentence”.
(1) In this Act “custodial sentence” means—

(a)a sentence of imprisonment (as to which, see section 89(1)(a) below);

(b)a sentence of detention under section 90 or 91 below;

(c)a sentence of custody for life under section 93 or 94 below;

(d)a sentence of detention in a young offender institution (under section 96 below or otherwise); or

(e)a detention and training order (under section 100 below).

(2)In subsection (1) above “sentence of imprisonment” does not include a committal for contempt of court or any kindred offence.

Powers of Criminal Courts (Sentencing) Act 2000
imprison v. 1 put in prison. 2 confine. imprisonment n.

Pocket Oxford Dictionary
Nigel

A Letter To The Home Office (Part 1)

I could not have put most of it better, myself:
"Re: R v Wiles ruling - justice?
Today at 16:51:21

The fact is that different forces cannot lawfully apply the rule from a date they choose, so an authoritive decision will need to take place. If they choose the 1997 date, this will lead to hundreds who have completed their notification being required to re-start, and you can hear the costly legal challenges already.

The RvW ruling was on 4/3/04, and should have set a precedent, however it did not and judges continued to sentence under the interpretation of the 1997 act, upheld in R v Graham S 2001. In fact even as late as this year, judges were still not applying RvW in some cases I read.

The Home Office themselves did not become aware of the ruling until April 2005, and even though the ruling was in relation to being banned from working with children, they decided it was a useful tool to hit all those with a sexual offence, so it could be argued that it is being used beyond it's remit.

As more and more are now coming to the end of their 'given' sentence, the challenges will mount. The media will blow it up as 'paedophiles being released', but that is to be expected. But the truth is more than that, it is the police and government riding over a sentence that has been passed and declared in open court and not challenged at the time by the Crown. It was accepted as correct, and indeed in most cases was correct interpretation at the time.

the arguments must be put forward that retrospective increases cannot happen in any case, no matter how emotive you feel about the offence. For example, if you were caught speeding at 58mph in a 50 zone, you will receive due punishment. If 2 years later they changed the speed limit of that section of road to 30mph, would they retrospectively say you were now doing 28mph over the limit, almost twice the limit, and your penalty will now be increased?

No, because that was not the circumstances at the time. In my case, at the time I was sentenced, the correct notification period was 10 years, and you simply cannot get away from that fact.

The police and Home Office need to swallow their pride, stop pandering to the media and accept that the judge passed a sentence. If he made a mistake, it needed to be challenged at the time, not 7 years later."

http://theopinionsite.org/forum/case-law-new-law-court-of-appeal-decisions/r-v-wiles-ruling-justice/60/
Nigel

Thursday, 23 August 2012

Designer Anomie

"In a 2004 Criminal Law Bulletin article, William Mitchell College of Law professor Eric Janus argued that “sexual predator laws provide a model for undercutting … constitutional protections.

”The process, Janus said, starts with a universally despised group of people who, like suspected terrorists, attract no public sympathy. He warned that “we are at risk of becoming a ‘preventive state,’ in which the paradigm of governmental social control has shifted from solving and punishing crimes that have been committed to identifying ‘dangerous’ people and depriving them of their liberty before they can do harm.”

To most Americans, I fear, this prospect is not nearly as scary as the possibility that a sex offender lives down the street."

Perverted Justice
"And the truth is, there is something terribly wrong with this country, isn't there?

Cruelty and injustice, intolerance and oppression. And where once you had the freedom to object, to think and speak as you saw fit, you now have censors and systems of surveillance coercing your conformity and soliciting your submission.

How did this happen? Who's to blame? Well certainly there are those more responsible than others, and they will be held accountable, but again truth be told, if you're looking for the guilty, you need only look into a mirror.

I know why you did it. I know you were afraid. Who wouldn't be? War, terror, disease. There were a myriad of problems which conspired to corrupt your reason and rob you of your common sense. Fear got the best of you, and in your panic you turned to ..."

V for Vendetta
Nigel

Wednesday, 22 August 2012

On R v Wiles

A reply, from me, in a forum thread:

R v Wiles ruling - justice?
"M-N,

An ES under the CJA 2003, is not the same as an ES before it. As for the LASPO, I have some detailed documentation on it, but, will wait for the Act. Of course, as the ROA periods are to be 'reduced', that should be translated to the SOA requirements (for the reasons are identical) - do you think they will be? I will be asking the HO on Friday, for their thoughts, on the matter.

WM"
"Hi WM.

I'm at a disadvantage. How is an ES different pre and post CJA 2003?" 
"An extended sentence may be imposed, under section 227 of the Criminal Justice Act 2003 (as amended) on an offender aged 18 or over where the following criteria are met:

>the offender is guilty of a specified violent or sexual offence;
>the court assesses the offender as a significant risk to the public of committing further specified offences;
>a sentence of imprisonment for life is not available or justified; and
>the offender has a previous conviction for an offence listed in schedule 15A to the Criminal Justice Act 2003 or the current offence justifies an appropriate custodial term of at least four years."

http://sentencingcouncil.judiciary.gov.uk/sentencing/extended-prison-sentences.htm
"What is an extended sentence? 

An extended sentence is a determinate sentence comprising an appropriate custodial term plus an extended period of licence. The appropriate custodial term is the determinate period of imprisonment that would have been imposed if the offender was not dangerous, but it must be for a minimum period of 12 months. It is defined as "the shortest term (not exceeding the permitted maximum) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it": section 153(2) CJA 2003. Despite the requirement of the condition in section 227(2B) that the appropriate custodial term must be 4 years (i.e. 2 years actually in custody), it is possible in some circumstances that that an offender may receive an extended sentence with an appropriate custodial term of less than 4 years if he satisfies the previous conviction criteria in section 227(2A). The extension period is "of such length as the court considers necessary for the purpose of protecting members of the public from serious harm": section 227(2) CJA 2003. It may be up to 5 years for a specified violent offence and 8 years for a specified sexual offences: section 227(4) CJA 2003. The sum of the custodial term and the extended licence must not exceed the maximum penalty for the offence: section 227(5) CJA 2003."

http://www.cps.gov.uk/legal/s_to_u/sentencing_and_dangerous_offenders/#a16
The CJA 2003 http://www.legislation.gov.uk/ukpga/2003/44/contents introduced the concept of dangerousness, much more rigorously (and severely), to the ES (which caused me no end of fun, inside, at the time).

Prior to that [CDA 1998; http://www.legislation.gov.uk/ukpga/1998/37/part/IV/chapter/I/crossheading/sexual-or-violent-offenders/enacted, then the PCC(S)A 2000 http://www.legislation.gov.uk/ukpga/2000/6/section/85] the judge could extend the sentence (i.e. 'would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation' - which the PSR almost always did, based on no valid theoretical, research etc evidence, in those days - even less so, now), so as to 'assist the offender in their rehabilitation' etc (see the David Lee piece) ...
36 Bedford Row
This is why sentences are now 'lesser' [sic], in many cases, so that they get the 'care in the community', which would not happen, inside, because they would not be dangerous enough for 4 years or more. Of course, the populist quid pro quo is, usually, the court application, of an unwarranted and unjustified SOPO.
This is why ES's, prior to 2003, could never be meant to lead to indefinite notification.
Note, Wiles [http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Crim/2004/836.html&query=Wiles&method=boolean] [4th March 2004], was after the CJA 2003 [20th November 2003], so that is why the outcome was as it was (quashing Graham [R v Graham (S) [2001] 1 Cr App R 111]), which was correct, before 2003).

You will not find much of this stated, officially (for it is contentious, legal, history), although the odd judge will whine about it.

WM"
Addendum (27/8/2012)

"This case is governed by the extended sentence regime of the PCC(S)A 2000, not the successor regime of the CJA 2003 ..."

[2011] EWHC 1610 (Admin)

R (on the application of Minter) v Chief Constable of Hampshire Constabulary and another

Nigel

Tuesday, 21 August 2012

The Creation of Fresh Pariahs

The Creation of Fresh Pariahs - Few Equal Opportunities For Us

In 1997, what may have appeared to be a reasonable and beneficial idea, towards a better society, has now become a living nightmare for many individuals and families.

Since that time, mission creep, populist political posturing and law-making, along with the vested interests of the media, lobby groups and a stifling regime of policing, has led to fear, disenfranchisement and little hope towards a worthy future for these people and their families.

This, not small, group of UK citizens, some isolated and poverty-stricken for no good reason, has little real support, a limited ability to fight for their Civil and Human Rights and some, quite unacceptably, live in constant fear of attack or harassment.

So, who can these people be? Who is this sizeable, yet, apparently, invisible group? Who could be suffering so much and yet be receiving so little attention? This group of people are the so-called ‘Sex Offenders’ and their families. This group includes me. Thank You.


Uploaded by: CriticalEstoppelMM on Jul 3, 2010,
Topic: The Creation of Fresh Pariahs,
Section: Few Equal Opportunities For Us,
Creator: Dr Nigel Leigh Oldfield July 2010.
Video Entry to The Times/Herbert Smith Advocacy Competition, 2010

The full piece ...

The Creation of Fresh Pariahs

The SOA 1997 was seen, by many, to be a reasonable piece of legislation. What responsible person could argue that those dangerous to society (particularly in a sexual manner) should not have their personal details made easily-available (amongst other rationalisations), allowing the authorities to access them in times of criminal crisis?

Since that time, a raft of related Statutes, Instruments and related Case Law have led to, what the authorities like to describe as “… some of the most stringent laws governing sex offenders in the world …" (1). It certainly is this, but it is a great deal more. It has now led to a Pariah status for thousands of citizens, who, until quite recently, would not only not have been perceived (or assessed to be) a danger to society, but would not have been criminals at all. It would be nice to believe that these unfortunate actions may have had a positive effect on reducing the number of sexual offences, but that has not been the case

Fortunately, in the last few years, we have seen some inklings of rationality illuminating the courts, within this arena (2-5), however, much damage has been done and continues to be done, for little good reason. Society is now so illogically-fearful of, and hate-directed to, the ‘Sex Offender’, to a point where it is, essentially, impossible to have a rational, evidenced-based, discussion in the public, or even academic, arena.

It is proposed, that this is only one (particularly effective) vehicle to maintain and build empires, and to extend and introduce further surveillance, monitoring, vetting and control regimes, which are now being applied to those, regardless of the nature of an earlier crime, or even for those without a criminal record. (6)

The issue of social and personal impact has been introduced in the Presentation. It is impossible to find any other UK minority, where certain individuals (7) and groups are treated (quite legally, in many examples), in such an appalling, inequitable and devastating manner.

It is my proposition, that we live in a time and place of absolute hysteria, regarding ‘Sexual Offending’, and that this has not arisen by accident. I also propose that the present legal (including ineffective advocates), judicial, academic and media reaction to ‘Sexual Offending’ does more harm than good (by a number of measures) and this is, evidentially, the case.

References

(1) Beckford, M. and Stokes, P. (2010), Human rights laws stopped Home Office tracking sex offenders’ emails, The Telegraph, March 10, 2010 <http://www.telegraph.co.uk/news/uknews/law-and-order/7406462/Human-rights-laws-stopped-Home-Office-tracking-sex-offenders-emails.html> Accessed May 27, 2010 (media website).

(2) The BBC (2008), Sex offenders win rights ruling, BBC News, December 19, 2008 <http://news.bbc.co.uk/1/hi/uk/7792497.stm> Accessed May 27, 2010 (media website); R (on the application of F (by his litigation friend F)) and Thompson (FC) (Respondents) v Secretary of State for the Home Department (Appellant) [2009] EWCA Civ 792 <http://www.bailii.org/uk/cases/UKSC/2010/17.html> Accessed May 27, 2010 (law website).

(3) HeraldScotland (2010), Scots sex offenders win human rights fight, The Herald, May 20, 2010 <http://www.heraldscotland.com/news/home-news/scots-sex-offenders-win-human-rights-fight-1.1029070> Accessed May 29, 2010 (media website).

(4) This is Bristol (2009), Prison sentences for child porn cut, Evening Post, December 6, 2009 <http://www.thisisbristol.co.uk/Prison-sentences-child-porn-cut/story-11239361-detail/story.html> Accessed May 29, 2010 (media website).

(5) Garden Court North Chambers (2008), Imprisonment for Public Protection, February 27, 2008 <http://www.gcnchambers.co.uk/gcn/areas_of_specialisation/areas/criminal_defence/criminal_law_updates/criminal_law_update_27_2_08> Accessed May 27, 2010 (law company website); R v Alexander James Terrell [2007] EWCA Crim 3079 <http://www.bailii.org/ew/cases/EWCA/Crim/2007/3079.html> Accessed May 27, 2010 (law website).

(6) Russell, J. (2009), Paranoia casts volunteers as perverts, The Sunday Times, December 13, 2009 <http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/article6954534.ece> Accessed May 29, 2010 (media website).

(7) Ozimek, J.F. (2010), Sex offender downloads child pr0n to get back into prison - A purely practical measure, The Register, June 18, 2010 <http://www.theregister.co.uk/2010/06/18/download_prison/> Accessed June 5, 2010 (media website).

_____

Nigel

Monday, 20 August 2012

No Matter How Unholy

"Whenever any government, or any church, or anyone else for that matter, undertakes to say to its subjects: "This book you may not read, this film you may not watch, this image you may not see, this knowledge you may not have," then the end result is tyranny and oppression, no matter how holy the motives."

- Robert A. Heinlein, If This Goes On-, 1940.

Nigel

Sunday, 19 August 2012

Only If Death Comes First

Sunday, 19 August 2012

David Stanley - We Will Not Rest, Good Friend 

The OSC

Nigel

Why Owning Indecent Images of Children Is Not A Sexual Offence, In Reality (Part 2)

Or even in law ...

A reply, from me, in a forum thread:

When is a sex offender not a sex offender?

"The main point M, I believe, is that the offence is not sexual (see the SOA definition of 'Sexual') at all.

Prosecution is under POCA and CJA. The SOA is only an issue of notification, for offences under those acts.

(1) There is no legal requirement for an IIOC to be sexual at all !!! It need only be I and of a C,

(2) What someone 'does' with those images, is irrelevant, in law,

(3) Only a passing, schedule, definition, in the SOA makes us 'Sexual Offenders',

(4) The 'knock-on effect' then becoming punitive, persecutory and prejudicial, in many ways.

The description of any image owner, as a 'Sex Offender', is offensive, incorrect and dangerous; and I keep telling them so.

WM"

Nigel

Sunday, 5 August 2012

I Looked (2003)

I looked at the vicious crowd, pushing and jostling, and I did nothing, 
now I am a hooligan.
I looked at the calm soldier, slicing his enemy with his bayonet, and I did nothing,
now I am a war criminal.
I looked at the disembowelled refugee children, and I did nothing,
now I am a participator.
I looked at the stick-like bodies, as they were pushed into the trench, and I did nothing,
now I am Nazi.
I looked at the shattered remains of the crash victim, and I did nothing, 
now I am a manslaughterer.
I looked at the voluptuous body of the seductive model, and I did nothing,
now I am a rapist.
I looked at the distant scientists, collecting the remains of the murdered schoolgirl, and I did nothing, 
now I am a murderer.
I looked at the taboo sexual practices of others, and I did nothing, 
now I live the rest of my life as a child sexual offender,

... and then, I shutdown the computer. 

MBS?

Nigel