Devil's Advocate
In Scotland, junior barristers are called "devils", and their practise "devilling" from Barrister sets called "Stables". Unfortunately, my English law degree does not permit me to become a "devil" unless I do a Scottish law degree as well. Scotland has a distinct jurisdiction for its legal system apart from the rest of the United Kingdom - which follows English law. I did, at one time, apply to the Bar of England and received x4 rejections and have never done my professional qualifications in law - albeit I am deemed by an English judge to have the experience of a practising solicitor - I wonder why?
So, playing "Devil's Advocate" rather than "Wise person" :
I was interested to see Harriet Harmon is temporarily in place as Deputy Prime Minister in Gordon Brown, Prime Minister's absence on holiday. What a hoot - how about doing what Romano Prodi, European Commissioner requested of ex-Prime Minister Blair, some years ago, "separate the powers" : what about a Lord / Lady Chancellor on that "pretty vacant Woolsack - not a lot of nouse in the House at the moment" [NEEDS A JUDGE] and correspondingly a Male/Female as Minister of Justice [NEEDS A POLITICIAN] : of the two posts - one male, the other correspondingly female as Executive Functions in Cabinet. The issue of relevance would be "meritorious selection" from Male/Female ability with responsibility!!!! FP8 could usefully be "flip a coin" policy - the stats would be interesting especially if they "improve" meritorious selection criteria of both male and female opportunities - why would you potentially positively discriminate/action a bad apple or dimwhit!
Gary MacKinnon case - this is a very seriously important and hard case. I do not consider the argument is or should be a human rights argument which I do consider to be weak in any event. Gary MacKinnon would, I consider, have the ability whether with or without a mental health diagnosis to hack a computer system (something I do not have the knowledge or ability to do). His capacity would therefore not be an issue, in my consideration.
However, the case is extremely important and "cause and effect" most relevant to the issues which is correctly a "jurisdiction" issue: I do not consider Extradition is at all relevant as there is relevant domestic/national legislation substantively fixing the case to either Scotland or the UK/Europe prima facia on the premis of "natural law" which requires reason to discover the jurisdiction issue relevant to intellectual property a priori the criminality issue which are domestic/national legislation in any event!
(a) In order for Mr MacKinnon to access an American based computer he must first use his UK based ISP or some other route. In which judicial jurisdiction of the UK is it established is the causative route where his computer enabled access to the American sites?
(b) This establishes "cause" as everything relevant to cause has a natural process in time. However, there are intellectual property rights to consider relevant to jurisdiction (and as you are aware I attended a Human Rights Conference in Berlin last year relevant to "international rights and multi-national layer" which is largely unregulated at the moment). Concerning the intellectual property rights - there are three issues : (i) the hardware of the computer and any associated equipment and (ii) the software and (iii) whether it was his own ownership of those two items or others. The hardware could be "made in China" but the piece that enables him to route to America could be inside "made in Scotland or India, etc" and is a relevant "jurisdiction" issue because without hardware he could not access America at all. Then there is the distribution rights via "licensed" software - which also have legalistic jurisdiction issues of relevance. Then, it is necessary to establish he used his computer or others and whether there are any issues of conspiracy requiring only mens rea + offence requirements in the UK. The jurisdiction issues are wide.
(c) Furthermore, routing through an ISP or other means as a server/gateway was it UK/Scotland to America or via Europe or India or China or a Satellite or another method, etc - all jurisdictional areas of relevance once established what the methodology and process is. But for "causation" relevant to court's jurisdiction - as opposed to potential jurisdictional rights in law/intellectual property law, 'cause' starts at Point A and 'effect' Point B"!!!! And it starts with methodology re computer system and not UFO's etc re substance.
(d) Therefore if point A is Scotland or UK then the Computer Misuse Act 1990 is probably the relevant and prevalent law in this case, which means any Extradiction issue is irrelevant to prevalent law in the UK which would or could/should ground the case here: it is therefore necessary for Gary MacKinnon to be arrested and charged here as having committed a crime before he can be extradited to America - everyone in the UK is presumed innocent before being found guilty so far as I am aware - however, that does not mean that the current facts surrounding the issue of computer hacking are not true and accurate or any misrepresentation, defamation, libel or slander against Mr MacKinnon has occurred: it may be the case Mr MacKinnon would plead guilty in any event if he had the opportunity to do so.
Computer Misuse Act 1990(click here)
(e) Other UK law is also relevant - (a) Mental Health legislation; (b)Terrorism/Anti-terrorism - re "effect" but not cause and possibly Human Rights but in very minimal sense. As Mr MacKinnon is effectively "caught" his mental health is an issue after the fact but is unlikely to be relevant to capacity given he has an ability to hack computers and thus must be deemed to have a degree of knowledge and expertise and also the ability to know how to access knowledge etc.
(f) International law - to my mind, would be the safest jurisdiction for this case to be a test case for justice at the international courts on the premis that it is not necessary in "computer hacking" cases of this complexity and where the "effect" is outside national/domestic courts jurisdictions for the case to exhaust domestic and national courts. (The ECCHR Conference in Berlin I attended wanted to look at behaviour relative to "multi-national" organisations where if the 'parent' causes a problem, the 'subsidiary' can be used to deal with it or vice versa thereby ensuring accountability and responsibility in an area which is largely unregulated by law). (This has been seen to work as in the case of China and the babyfood problem ensuring justice and press interest via New Zealand releasing necessary information so as to raise standards and ensure safety/protection of people via the multi-national layer of corporate responsibility: at the ECCHR conference I sat on the employment workshops and topics were diverse concerning trade unionism, child labour in products, inability to know from raw materials natural source to synthetic the labour process in a product and its points of distribution / transportation (shipping) to end destination if there was child labour involved etc, disappearing workers, etc). Computer hacking, as in this case, would be relevant to an international forum and this is where I would argue the case should go, if outside Scotland or the UK. I anticipate President Obama Barack will appreciate the argument especially given the public domain of a litigation with a very public "discovery" bundle!! and the issue of a potential 60 year prison sentence in the US, relating to Mr McKinnon on process and substance.
(g) In all of this very serious legal and judicial conundrum Gary MacKinnon must at all times protect himself - Best of Luck - you have more power than you potentially know. You alone have your objectives re intentionality - you can use it for good or bad its your choice - you are a risk, you are also a pawn in the judicial/legal process, but whether you continue to be is your choice concerning risk aversion.
My Grandmother always said "look for the good". I have written to my MP re your case and he has affirmed his action on your case re the House of Commons. I will write to him again shortly.
Cop shows
I did not intend to watch "Cops with Cameras" on Sunday Night on ITV 1 but someone else wanted to view it - I was quite shocked that the current police are handing out £80 fines and that everyone was being given "cautions" even the chap who was caught with large amounts of drugs and £10,000 cash. Where do the Police in the UK have the right or duty to "judge" a criminal? and more importantly the drugs haul with cash should have meant proceeds of crime legislation was relevant which necessitated appearance before a judge plus legal team. What is occurring appears to be a complete failure of the English judicial system relevant to criminal law and/or a lot of Thames Mead Police Officers needing to be hauled before the IPCC as caught on their own camera show!! The "duty" of the Police, so far as I am aware, is to investigate and hopefully timeously, pass the evidence to the DPP (prosecution) but NOT ever to judge! Civil rights everybody.
So, playing "Devil's Advocate" rather than "Wise person" :
I was interested to see Harriet Harmon is temporarily in place as Deputy Prime Minister in Gordon Brown, Prime Minister's absence on holiday. What a hoot - how about doing what Romano Prodi, European Commissioner requested of ex-Prime Minister Blair, some years ago, "separate the powers" : what about a Lord / Lady Chancellor on that "pretty vacant Woolsack - not a lot of nouse in the House at the moment" [NEEDS A JUDGE] and correspondingly a Male/Female as Minister of Justice [NEEDS A POLITICIAN] : of the two posts - one male, the other correspondingly female as Executive Functions in Cabinet. The issue of relevance would be "meritorious selection" from Male/Female ability with responsibility!!!! FP8 could usefully be "flip a coin" policy - the stats would be interesting especially if they "improve" meritorious selection criteria of both male and female opportunities - why would you potentially positively discriminate/action a bad apple or dimwhit!
Gary MacKinnon case - this is a very seriously important and hard case. I do not consider the argument is or should be a human rights argument which I do consider to be weak in any event. Gary MacKinnon would, I consider, have the ability whether with or without a mental health diagnosis to hack a computer system (something I do not have the knowledge or ability to do). His capacity would therefore not be an issue, in my consideration.
However, the case is extremely important and "cause and effect" most relevant to the issues which is correctly a "jurisdiction" issue: I do not consider Extradition is at all relevant as there is relevant domestic/national legislation substantively fixing the case to either Scotland or the UK/Europe prima facia on the premis of "natural law" which requires reason to discover the jurisdiction issue relevant to intellectual property a priori the criminality issue which are domestic/national legislation in any event!
(a) In order for Mr MacKinnon to access an American based computer he must first use his UK based ISP or some other route. In which judicial jurisdiction of the UK is it established is the causative route where his computer enabled access to the American sites?
(b) This establishes "cause" as everything relevant to cause has a natural process in time. However, there are intellectual property rights to consider relevant to jurisdiction (and as you are aware I attended a Human Rights Conference in Berlin last year relevant to "international rights and multi-national layer" which is largely unregulated at the moment). Concerning the intellectual property rights - there are three issues : (i) the hardware of the computer and any associated equipment and (ii) the software and (iii) whether it was his own ownership of those two items or others. The hardware could be "made in China" but the piece that enables him to route to America could be inside "made in Scotland or India, etc" and is a relevant "jurisdiction" issue because without hardware he could not access America at all. Then there is the distribution rights via "licensed" software - which also have legalistic jurisdiction issues of relevance. Then, it is necessary to establish he used his computer or others and whether there are any issues of conspiracy requiring only mens rea + offence requirements in the UK. The jurisdiction issues are wide.
(c) Furthermore, routing through an ISP or other means as a server/gateway was it UK/Scotland to America or via Europe or India or China or a Satellite or another method, etc - all jurisdictional areas of relevance once established what the methodology and process is. But for "causation" relevant to court's jurisdiction - as opposed to potential jurisdictional rights in law/intellectual property law, 'cause' starts at Point A and 'effect' Point B"!!!! And it starts with methodology re computer system and not UFO's etc re substance.
(d) Therefore if point A is Scotland or UK then the Computer Misuse Act 1990 is probably the relevant and prevalent law in this case, which means any Extradiction issue is irrelevant to prevalent law in the UK which would or could/should ground the case here: it is therefore necessary for Gary MacKinnon to be arrested and charged here as having committed a crime before he can be extradited to America - everyone in the UK is presumed innocent before being found guilty so far as I am aware - however, that does not mean that the current facts surrounding the issue of computer hacking are not true and accurate or any misrepresentation, defamation, libel or slander against Mr MacKinnon has occurred: it may be the case Mr MacKinnon would plead guilty in any event if he had the opportunity to do so.
Computer Misuse Act 1990(click here)
(e) Other UK law is also relevant - (a) Mental Health legislation; (b)Terrorism/Anti-terrorism - re "effect" but not cause and possibly Human Rights but in very minimal sense. As Mr MacKinnon is effectively "caught" his mental health is an issue after the fact but is unlikely to be relevant to capacity given he has an ability to hack computers and thus must be deemed to have a degree of knowledge and expertise and also the ability to know how to access knowledge etc.
(f) International law - to my mind, would be the safest jurisdiction for this case to be a test case for justice at the international courts on the premis that it is not necessary in "computer hacking" cases of this complexity and where the "effect" is outside national/domestic courts jurisdictions for the case to exhaust domestic and national courts. (The ECCHR Conference in Berlin I attended wanted to look at behaviour relative to "multi-national" organisations where if the 'parent' causes a problem, the 'subsidiary' can be used to deal with it or vice versa thereby ensuring accountability and responsibility in an area which is largely unregulated by law). (This has been seen to work as in the case of China and the babyfood problem ensuring justice and press interest via New Zealand releasing necessary information so as to raise standards and ensure safety/protection of people via the multi-national layer of corporate responsibility: at the ECCHR conference I sat on the employment workshops and topics were diverse concerning trade unionism, child labour in products, inability to know from raw materials natural source to synthetic the labour process in a product and its points of distribution / transportation (shipping) to end destination if there was child labour involved etc, disappearing workers, etc). Computer hacking, as in this case, would be relevant to an international forum and this is where I would argue the case should go, if outside Scotland or the UK. I anticipate President Obama Barack will appreciate the argument especially given the public domain of a litigation with a very public "discovery" bundle!! and the issue of a potential 60 year prison sentence in the US, relating to Mr McKinnon on process and substance.
(g) In all of this very serious legal and judicial conundrum Gary MacKinnon must at all times protect himself - Best of Luck - you have more power than you potentially know. You alone have your objectives re intentionality - you can use it for good or bad its your choice - you are a risk, you are also a pawn in the judicial/legal process, but whether you continue to be is your choice concerning risk aversion.
My Grandmother always said "look for the good". I have written to my MP re your case and he has affirmed his action on your case re the House of Commons. I will write to him again shortly.
Cop shows
I did not intend to watch "Cops with Cameras" on Sunday Night on ITV 1 but someone else wanted to view it - I was quite shocked that the current police are handing out £80 fines and that everyone was being given "cautions" even the chap who was caught with large amounts of drugs and £10,000 cash. Where do the Police in the UK have the right or duty to "judge" a criminal? and more importantly the drugs haul with cash should have meant proceeds of crime legislation was relevant which necessitated appearance before a judge plus legal team. What is occurring appears to be a complete failure of the English judicial system relevant to criminal law and/or a lot of Thames Mead Police Officers needing to be hauled before the IPCC as caught on their own camera show!! The "duty" of the Police, so far as I am aware, is to investigate and hopefully timeously, pass the evidence to the DPP (prosecution) but NOT ever to judge! Civil rights everybody.
posted by Lesley McDade at 8:17 pm
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