Thursday, 13 August 2009

Why I'm no longer here

Those nice fellows Messrs Pogo and Wadsworth have kindly expressed concern for my wellbeing, so I will endeavour to put their minds at rest and explain why I decided to stop blogging.

True though it is that I have a dicky ticker, failing liver and still-swollen leg, I haven't felt so hale and hearty for years.

I decided to stop because I feel I have said everything I have to say and am not prepared to repeat myself continually in order to keep the blog alive.

Being primarily an essay blogger rather than a provider of snappy short comments or data, there are only so many topics you can cover before engaging in pretty dull repetition. I drafted many pieces over the last few weeks but didn't publish them because the points I was making had already been made, sometimes more than once. It was enormously frustrating and I knew it was time to say "thank you and goodbye".

The writing has been on the wall for a while, hence the fall-off in the number of postings over the last few months. I could keep the blog open and post every now and then when something novel or unusual happens in politics, the economy or the law, but that isn't consistent with what this blog has been and I wouldn't find it satisfactory. I can still make any points I really want to in comments elsewhere.

It has been a wonderful experience and has helped me develop my thoughts on a wide range of subjects. It has also been hugely flattering to know that people deliberately visited to read what I had to say and were prepared to spend their time debating points I had made. But when it's time to stop it's time to stop. And now it's time to stop.

Saturday, 8 August 2009

Time gentlemen please

I think I've said everything I want to say, except this:

A very big and sincere thank you to all those who have taken the time to comment on my meanderings, especially those with the good sense to agree with me.

As the old song goes, it's been great fun but it's just one of those things.

And now to a new chapter in my life. Goodbye everyone.

Wednesday, 5 August 2009

The impenetrable problem with rape

The crime of rape has three elements: (i) there must be intercourse (vaginal or anal, the distinction between buggery and rape was removed some years ago), (ii) the victim must not have consented to the act and (iii) the perpetrator must not have believed that consent was given. Most, but by no means all, contested allegations of rape revolve around consent. Either it is in question whether the alleged victim consented or the defendant asserts that he (or she) genuinely believed the other party did consent.

A typical case involves a woman alleging that she did not consent and the male defendant saying he believed she did consent. Sometimes the woman is not contradicted when she says she did not consent and the trial revolves solely around the state of mind of the man. Say it is indeed the position that the woman did not consent but that the man believed she did. From her point of view what was done to her was every bit as bad as if the man knew or believed she did not consent. From the man's point of view he did nothing wrong because there were no signs that the woman was not a willing participant. In such a case the woman is a victim because she was forced to have intercourse against her will, however the verdict should be not guilty because the man believed she gave consent. It's not a happy state of affairs.

Take a slightly different example, again the woman did not consent but it is not clear whether the man believed she consented. For so long as guilt must be proved beyond reasonable doubt, the verdict should again be not guilty. Again the woman is a victim but the man's guilt has not been proved.

For tactical reasons it is sometimes best not to challenge the alleged victim when she says she did not consent - it might be that such an attack could backfire for the defence where the woman is seen as vulnerable. In many cases, however, the woman's consent and the man's belief in consent revolved around the same evidence. If she showed no outward signs of lack of consent, that is consistent both with her actually consenting and with the man believing she consented.

There is only one way to ensure that a conviction for rape follows where the woman did not consent to intercourse and that is to remove any need for the man's state of mind to be considered. This is fraught with difficulties because the man could then be convicted and given a lengthy sentence when there was no way in which he could have thought he was doing anything wrong. That is just as much of an injustice as it is for a woman to find her attacker is acquitted because of his belief even though she did not consent. A half-way house is possible by reversing the burden of proof when it comes to assessing the man's state of mind. Once the jury is satisfied that the woman did not in fact consent, it could then be for the man to make a positive case that he believed she did consent. In such a situation reasonable doubt would not help him, he would have to prove that he positively believed she consented. Although it would be unusual for the burden of proof to be placed on a defendant in a serious case there are numerous examples in the law of defendants having to prove particular defences once the prosecution has laid the necessary foundations to make a case against him.

Whether reversing the burden of proof would improve conviction rates is pure speculation. One possible result is that more attention will be focussed on the woman's state of mind in cases where, at present, a tactical decision is taken to concentrate on the man's state of mind. If his state of mind has to be proved and hers only has to be subject to a reasonable doubt, it would not be surprising to find a shift in tactics to match the shift in the law.

I have never read of any proposed change in the law that provides a sound answer to the fundamental difficulty arising in cases where the woman does not consent but the man believes she does. Politicians can bleat until they are blue in the face about the need for a higher conviction rate in rape trials, but for as long as the law takes account of the man's state of mind their protestations will just be hot air.

Monday, 3 August 2009

A true charity

Last week we received a sad reminder of what real charities do. The former footballer and football manager Sir Bobby Robson died at the age of 76 after having suffered from one type of cancer or another for more than fifteen years. During that period he set up the Sir Bobby Robson Foundation to fund research related to cancer and, in particular, to assist in clinical trials of new anti-cancer drugs and treatments.

The Sir Bobby Robson Foundation is funded by private and corporate donations, using Sir Bobby's name and reputation and those of many other figures from the world of football to persuade people and companies to part with their cash. This type of charity is the very epitome of what a charity should be. The work it funds could be funded out of taxation if someone in government chose to do so, as it is Sir Bobby decided he wanted to see more spent in the field so he went about raising money specifically for that purpose. Could other aspects of cancer research make a case for additional funding? Could other areas of medicine make a case? Of course the answer to both questions is that they could, but that is nothing to do with it because it was Sir Bobby's decision what should happen to the money raised in his name.

It is reasonable to infer that those who have given to this charity would not have volunteered to pay additional tax in the same amount. Even if they had paid voluntary additional tax they would have had no say over where it went once it was in the hands of the Treasury. Instead they chose to delve into their post-tax income to fund a specific area of work regardless of whether the government considers it of sufficient priority to warrant additional money.

That is at the heart of true charities. They are about individual priorities rather than priorities laid down from on high. This reflects the position that has been taken consistently through time, until very recently. The law has not asked the question "is this organisation a charity"? Rather it has asked "is the purpose for which this organisation exists a charitable purpose"? The distinction is extremely important because it places the emphasis on the general purpose for which an organisation exists not on the specifics of how that organisation seeks to attain that purpose. The reason for this is that different people have different views of the benefit of certain types of activity which are considered by law to be charitable. Because charitable donation is an individual thing, reflecting the values of individual donors, the law does not claim to have better judgment than the individuals who make voluntary donations. Provided the general purpose of the donee falls within the established categories of charitable purposes, the wishes of individual donors are respected.

For example, preventing suffering to animals is a charitable purpose, both under the old law and under the Charities Act 2006. Those of us with the good sense to despise cats can recognise that others take a different view and an organisation dedicated to preventing suffering to cats is, on the face of it, fulfilling a charitable purpose. Of course there are certain formal requirements to ensure that such an organisation is indeed concerned with its stated charitable purpose before it can be registered as a charity, but all of that is secondary; if its stated purpose is not charitable it doesn't get off the starting blocks.

As with so many things, the current government considers charitable status to be a political matter and has placed one of its most loyal Labour Party puppets in charge of the Charity Commission so that only those organisations that further Labour Party policy will be afforded the tax and other privileges that go with being a registered charity. Recently they decided that education is only a charitable purpose if it accords with the Labour Party's view of what schools should do. This was never an issue before because government recognised that all educational facilities are beneficial to some children and that was sufficient in itself for bona fide educational establishments to be afforded charitable status.

The danger with this new approach (which is almost certainly unlawful) is that it introduces narrow political considerations into a field which, for more than four hundred years, has stood outside factional politics and has respected the values and judgments of the little people whether or not they accorded with the views of the government of the day. Part of the process of politicising charities has been to refer to them as "the third sector", the other two being government and private business. Instead of charities being numerous separate organisations dedicated to specific charitable purposes they are lumped together and even have their own Minister of State. Once they have been classified in this way the government can seek to justify ever greater regulation and control, citing the amount of money charitable organisations administer as justification for any amount of interference. Once that is accomplished it is inevitable that the "third sector" is treated as something for government to control in ever increasing detail; in effect making it a tool of government policy rather than a diverse collection of individual organisations each with its own priorities, procedures and aims.

Where does the Sir Bobby Robson Foundation stand in this brave new order? At the moment it can operate as Sir Bobby wished it to - adding research facilities which did not otherwise exist and concentrating its work in the north east of England. But for how long? When will it be required to merge its work with other cancer research conducted within the NHS? When will it be required to limit its research into only those matters government considers a priority? Who knows, but I'm not holding my breath.

Others write about the misuse of charitable status by overtly political campaigns, details of many of which can be found at That is bad enough. To subvert the very essence of charitable work by seeking to impose value judgments based on political considerations over and above the values and judgments of individual donors is to deny the very basis of charity.