Ignorance is bliss or not
So ignorance of a law is no defence, but a general misunderstanding (which seems pretty much the same thing) of the law is.
The Crown Prosecution Service confirmed today that it would not be prosecuting anyone in BT's secret trials of Phorm's web monitoring system. "We have decided not to consent to a request from an individual to begin a prosecution of BT Group Plc and Phorm Inc in relation to alleged unlawful interception of internet browsing …
To be fair, I think if the government hadn't told either company that what they were doing was legal, then the CPS would have proceeded with this. Government tied their hands from the outset.
That said, I really do wish that BT and Phorm could be prosecuted, but sadly, we were let down by our surveillance society government :/
> if the government hadn't told either company that what they were doing was legal
If the government truly *did* say that it was legal, then that's a decent defence in court. But, given how blatantly illegal the action, it's something for a court to try, not for the CPS to filter.
It appears that the CPS are interpreting "not in the public interest" as "embarrassing to a few politicians". Again.
It all comes down to money at the end of the day.
The CPS have to filter cases and make charges on lesser grounds to save money.
The CPS have long been under-staffed and poorly maintained.
The truth is that the cost of trying something with no definite win is a sketchy prospect. I can completely understand, if not condone the descision.
The CPS just don't want to prosecute! The cited reasons are utter bollocks both in law and in practice and represent a prevailing shade of opinion.They show a not untypical pusillanimous approach to defense of the "small" individual/private interest against the "large" corporate interest. They and the police are going through the same hoop with News International. The gall of these fkrs is almost incredible.
Utter bollocks! Since when has ignorance of the law been a defence? If they were receiving conflicting legal advice then there should have been no action taken until they were certain that they were acting within the law.
If an individual were to claim that they mistunderstood a law and so cannot be held liable for an offence they would still be prosecuted. Too much money exchanging hands behind closed doors here methinks.
I have no idea how much this is going to cost yet. First I need to get back in touch with the CPS to find out if there is any process for appeal (they conveniently failed to provide any procedural information of this nature).
If there is no procedure for appeal, then Judicial Review is the next step at which point I will have to obtain a quote from a Barrister to determine costs.
over another matter it was explained to me that any member of the public can lay an information before a magistrate and commence a private prosecution without either plod or CPS being involved on any criminal matter.
You would have to act as prosecution yourself or employ lawyer to do so for you and if you lose they could award costs against you but the maximum amount, or so I was told is £50 in Magistrates Court.
You would have to do the plod job regarding collection of evidence yourself, or employ a PI.
I was fortunate that plod eventually took action in my case but I left them in no doubt that if they didn't I would and they would have to bear the resultant publicity.
That is not the case with RIPA, this CPS decision was the result of the private prosecution process. RIPA is treated as a special law where only the Director of Public Prosecutions can grant permission for a private prosecution under RIPA and if granted only the CPS are allowed to prosecute the case.
This is the route I took when the City of London Police refused to press charges; I wrote to the DPP seeking permission for private prosecution, he formally passed it to CPS to assess and any prosecution was completely dependent on CPS assessment, their assessment is not to prosecute, so no private prosecution is possible now.
Unfortunately an apology may be seen as admitting culpability; besides this, ignorance of the law (and promising never to do it again) has never been considered a defence.
Until now, apparently.
Didn't the European Court say they would jump all over this if the CPS decided not to prosecute? Where are they then?
In my experience the best way to avoid a repeat offence by a business is to take action against the perpetrator. A big fat fine - hit them where it hurts and they damn well won't do it again.
Fail, CPS - Fail.
I look forward to explaining my misunderstanding of IR35 if I'm ever found in breach, should go down a treat, that. After all I paid for advice, and I have the documentation to show I was acting within my understanding of the rules...
I stepped down from the running of NoDPI in November 2009 as my work at Privacy International meant I no longer had time to run the site. But the NoDPI group still exists and they are doing some great work exposing other companies on these issues.
Any money donated to NoDPI will be well received for their ongoing work and i encourage people to support them, but i should make it clear that it would not be going to me for my ongoing work.
It would be irresponsible of me to start a donation fund until I have had a chance to review all the options available. As stated in a comment above, I need to contact the CPS again next week and see if there is a procedure for appeal, if not I then need to speak to a Barrister to determine the cost of a Judicial Review.
At that point I will be in a position to setup a donation fund for people to help support the Judicial Review.
Hopefully, given The Register's interest in this issue and their amazing coverage and work on Phorm, they can be pursuaded to post a new article once I get to that point, or allow me to do another Op Ed for them as I did on Street View.
It is going to take a week to get all this sorted out, so I respectfully ask people to be patient and sincerely thank everyone for their eagerness to support the process.
Rest assured, I am not giving up on this issue and I will do whatever it takes for as long as it takes to see justice, even if that means going all the way to Strasbourg.
So "it could be reasonably argued that any offending was the result of an honest mistake or genuine misunderstanding of the law" and the "behaviour in question [was] unlikely to be repeated".
I wonder how far I'd get if I tried the "I didn't know it was wrong and I promise not to do it again" excuse.
...Of the CPS?
It's up to a court to decide whether mitigating circumstances warrant a guilty defendant being discharged. The CPS' task is to prosecute those lawbreakers where they believe they can make a case.
If the CPS can't make a case against a criminal who has already admitted a crime, they are clearly not fit for purpose.
This whole thing smells really, really bad, but it'll probably just go down as yet another example of "Can't Prosecute Shit".
If there is no public interest in the prosecution of someone who has clearly, gratuitously, and repeatedly broken RIPA2000, then it is clear that the law in question is itself not in the public interest, and should be repealed.
Twats, the lot of 'em.
Actually they said there wasn't enough evidence, which is not the same thing as saying a crime was not committed, or that they don't think it worth prosecuting.
An example of this. My mum was on the jury for a case of someone accused of dealing in drugs. The man was clearly guilty, but he was found not guilty. why? The judge explained that while he personally had no doubt of the man's guilt, the Police had not produced adequate evidence of that guilt. Interestingly the judge also noted the distinction between Innocent (which means they did not commit a crime), and not guilty (which means they may have committed the crime).
> Interestingly the judge also noted the distinction between
> Innocent (which means they did not commit a crime), and
> not guilty (which means they may have committed the crime).
I doubt he said that, exactly, as that would open the door up to a mistrial.
A verdict of "not guilty" is identical to "innocent". The defendant is free to leave without a stain on his character. I rather like Scottish Law option of "not proven", but we don't have that down here.
If the judge said anything, he almost certainly pointed out to the jury that a verdict of "guilty" is only available if the prosecution has proven the case, and that a case insufficiently proven must be returned as "not guilty", even if the jury suspect that defendant committed the crime.
There's still the European courts.
And whatever happens, this dragged Phorm out into the public eye and destroyed it. BT of course lumbers on, but is no longer able to deploy its snooping plan.
Yes, I'd be happy to donate to Alex too. Hope he sticks up a paypal button or such like.