Man arrested for possessing PSNI FOI answer
Discussion
https://www.bbc.co.uk/news/uk-northern-ireland-665...
Charged with possessing information that could be of use for terrorists. The information? That released publicly by PSNI…
Charged with possessing information that could be of use for terrorists. The information? That released publicly by PSNI…
skwdenyer said:
https://www.bbc.co.uk/news/uk-northern-ireland-665...
Charged with possessing information that could be of use for terrorists. The information? That released publicly by PSNI…
If only there was something in his past record or associations that might indicate to the authorities that he may use said information for nefarious activities.Charged with possessing information that could be of use for terrorists. The information? That released publicly by PSNI…
Oh, wait.
Roderick Spode said:
skwdenyer said:
https://www.bbc.co.uk/news/uk-northern-ireland-665...
Charged with possessing information that could be of use for terrorists. The information? That released publicly by PSNI…
If only there was something in his past record or associations that might indicate to the authorities that he may use said information for nefarious activities.Charged with possessing information that could be of use for terrorists. The information? That released publicly by PSNI…
Oh, wait.
PSNI published this data. Online. Any member of the public could download it. To my knowledge, no law says they should now delete it. We can't have books or public data becoming "prohibited" based solely no who happens to possess them. What next? ID checks before you use a public library?
By all means charge him with something if there's a real case to answer. But this sort of use of this law is very unfortunate IMHO.
skwdenyer said:
That's not really my point. I've been opposed to this law since it was first proposed. It is the ultimate "charge him with something" approach - the most innocent item can be said to be an item of potential use to terrorists.
PSNI published this data. Online. Any member of the public could download it. To my knowledge, no law says they should now delete it. We can't have books or public data becoming "prohibited" based solely no who happens to possess them. What next? ID checks before you use a public library?
By all means charge him with something if there's a real case to answer. But this sort of use of this law is very unfortunate IMHO.
A bit more than just possessing the file surely?PSNI published this data. Online. Any member of the public could download it. To my knowledge, no law says they should now delete it. We can't have books or public data becoming "prohibited" based solely no who happens to possess them. What next? ID checks before you use a public library?
By all means charge him with something if there's a real case to answer. But this sort of use of this law is very unfortunate IMHO.
"It is also claimed there were images of certain sections of groups of officers, including those at a senior level, and two individuals.
One had detained Mr O'Kane for a stop-and-search, while the second was the victim of an attempted murder in a bomb attack claimed by the New IRA.
It is also alleged a phone contained images of DIY bomb detonators."
skwdenyer said:
PSNI published this data. Online. Any member of the public could download it. To my knowledge, no law says they should now delete it. We can't have books or public data becoming "prohibited" based solely no who happens to possess them. What next? ID checks before you use a public library?
It was mistakenly released as part of a FoI response, and then retracted. Possession of the information in and of itself is not an offence, but may be included as evidence as part of a larger scheme of criminal intent...A person has in their possession a spreadsheet of the names of members of the PSNI.
Said person further has pictures included of high ranking members of the organisation.
Said person has also registered with a website that could be used to find the addresses of people on the list.
Said person also had pictures of bomb detonators on his phone.
Said person also has a history of terrorist offences, including involvement in the murder of an RUC officer.
At what point does the transition take place between innocent idle activity of a quiet Friday afternoon down the pub, and a plot to kill, injure or intimidate members of the security services?
Roderick Spode said:
skwdenyer said:
PSNI published this data. Online. Any member of the public could download it. To my knowledge, no law says they should now delete it. We can't have books or public data becoming "prohibited" based solely no who happens to possess them. What next? ID checks before you use a public library?
It was mistakenly released as part of a FoI response, and then retracted. Possession of the information in and of itself is not an offence, but may be included as evidence as part of a larger scheme of criminal intent...A person has in their possession a spreadsheet of the names of members of the PSNI.
Said person further has pictures included of high ranking members of the organisation.
Said person has also registered with a website that could be used to find the addresses of people on the list.
Said person also had pictures of bomb detonators on his phone.
Said person also has a history of terrorist offences, including involvement in the murder of an RUC officer.
At what point does the transition take place between innocent idle activity of a quiet Friday afternoon down the pub, and a plot to kill, injure or intimidate members of the security services?
dukeboy749r said:
Roderick Spode said:
skwdenyer said:
PSNI published this data. Online. Any member of the public could download it. To my knowledge, no law says they should now delete it. We can't have books or public data becoming "prohibited" based solely no who happens to possess them. What next? ID checks before you use a public library?
It was mistakenly released as part of a FoI response, and then retracted. Possession of the information in and of itself is not an offence, but may be included as evidence as part of a larger scheme of criminal intent...A person has in their possession a spreadsheet of the names of members of the PSNI.
Said person further has pictures included of high ranking members of the organisation.
Said person has also registered with a website that could be used to find the addresses of people on the list.
Said person also had pictures of bomb detonators on his phone.
Said person also has a history of terrorist offences, including involvement in the murder of an RUC officer.
At what point does the transition take place between innocent idle activity of a quiet Friday afternoon down the pub, and a plot to kill, injure or intimidate members of the security services?
What I have a problem with is the idea of possession of publicly-available information being itself the crime.
I don't know if you've read §58 of the Terrorism Act 2000 - https://www.legislation.gov.uk/ukpga/2000/11/secti... - but it basically makes it an offence to possess what the prosecution can convince a jury are "of a kind likely to be useful to a person committing or preparing an act of terrorism" and requires a defendant to show a "reasonable excuse" for possessing that information.
That is something I'm sorry but I find very troubling: the need to prove a defence of reasonable possession of a book, an image, etc.
In the present case, it means that somebody's history determines what books they may read or possess. If this were China, we'd be up in arms about that.
If they wanted to be particular over this PSNI document, they could try instead for a §58A charge (possession of information about a constable), although I'm not wholly happy with that one either. Incidentally, the person at PSNI who released this information is also guilty under §58A:
TA2000 said:
58A (1) A person commits an offence who—
(a) elicits or attempts to elicit information about an individual who is or has been—
(i) a member of Her Majesty's forces,
(ii) a member of any of the intelligence services, or
(iii) a constable,
which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or
(b)publishes or communicates any such information.
Does the Chief Constable also face a charge under §58A? Proper, even-handed application of the law should surely mandate such a charge, should it not? It cannot be a "reasonable excuse" to say "I cocked up," can it? The penalty is up to 15 years' prison.(a) elicits or attempts to elicit information about an individual who is or has been—
(i) a member of Her Majesty's forces,
(ii) a member of any of the intelligence services, or
(iii) a constable,
which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or
(b)publishes or communicates any such information.
If the case is correct about this chap, why not charge him under §5 of Terrorism Act 2006 - https://www.legislation.gov.uk/ukpga/2006/11/secti... - if they believe his collection of this information constitutes preparation for an act?
As should be clear, I'm not saying this guy is innocent - the information available so far suggests he is not - but I am saying that §58 (and possibly §58A) of TA2000 have always been bad law, and that this chain of events - the PSNI release, followed by many people downloading it freely - rather points that up.
I don't believe we should have any laws like this which can be used to prevent or penalise otherwise-lawful possession of publicly-available books, information, etc. Because the potential for abuse is just far too great IMHO.
MrBogSmith said:
skwdenyer said:
Does the Chief Constable also face a charge under §58A? Proper, even-handed application of the law should surely mandate such a charge, should it not?
Disregarding that rather creative reading of the law (not sure how you think the CC is a principal), there's also the 'public interest' element of any charge. I don't think it's in the public interest to chart the Chief Constable for a terrorism offence...
As for “a terrorism offence” isn’t that also a part of the problem? Choosing what offence to charge with based upon they are and not what they’ve done?
The data “leak” clearly falls within §58A. The offence doesn’t require terrorist intent; it is absolute. The “public interest” test all too often seems to be the “establishment test” - that who you are determines your fate, something with no place in a modern society IMHO.
skwdenyer said:
The CC was a bit of fun, based on the idea of civil suits being addressed to the CC, IIRC.
As for “a terrorism offence” isn’t that also a part of the problem? Choosing what offence to charge with based upon they are and not what they’ve done?
The data “leak” clearly falls within §58A. The offence doesn’t require terrorist intent; it is absolute. The “public interest” test all too often seems to be the “establishment test” - that who you are determines your fate, something with no place in a modern society IMHO.
Is it really a case of "who you are"? Or "who you are if all the things Roderick Spode notes are true"?As for “a terrorism offence” isn’t that also a part of the problem? Choosing what offence to charge with based upon they are and not what they’ve done?
The data “leak” clearly falls within §58A. The offence doesn’t require terrorist intent; it is absolute. The “public interest” test all too often seems to be the “establishment test” - that who you are determines your fate, something with no place in a modern society IMHO.
One presumes nobody else has been charged as yet, because nobody else was found with all the other stuff in their position?
MrBogSmith said:
The PI test / consideration is why we don’t have a rigid autocratic CJS.
If it were as you describe then it wouldn’t be fit for purpose.
Thankfully it isn’t. It’s a fundamental to using discretion even at the lowest level e.g. the police being able to take a 10 year old child who has stolen a chocolate bar home to their parents and have the matter closed as not being in the public interest.
Of course you can take your approach of, “well they committed theft and there should be no PI consideration”, but I doubt many would share that view.
It used to be said that the best form of government to live under is a benign dictatorship, so long as the dictator is being benign towards you...If it were as you describe then it wouldn’t be fit for purpose.
Thankfully it isn’t. It’s a fundamental to using discretion even at the lowest level e.g. the police being able to take a 10 year old child who has stolen a chocolate bar home to their parents and have the matter closed as not being in the public interest.
Of course you can take your approach of, “well they committed theft and there should be no PI consideration”, but I doubt many would share that view.
The 10 year old child test is a good one to expose the problems with the current approach. For a fully open and transparent system, the law should be written so that discretion is codified, decisions are recorded (albeit with a threshold as to what appears on "a criminal record", but still open to third party review to rule out corruption), and - if it is ever challenged - the 10 year old with a chocolate bar can be shown to be the proper exercise of discretion.
The "public interest" will probably ensure that the person at PSNI who "leaked" this data doesn't get charged under §58A, yet somebody who (wholly legally) dowloaded it and then shared it could themselves be charged under §58A. That isn't my definition of the public interest - it is the capricious application of the law to prosecute only certain people.
The public interest should be the interests of the public (having especial regard to maintaining faith in the justice system). The public interest should (IMHO) never simply be taken to be the interests of those in power.
Absent of protections for that, I simply thing §58 should be repealed. §5 TA 2006 is more than sufficient for the offence in question; if it is not, let's revise it. But banning the possession of information it is legal hold based on some idea of "the public interest" is absolutely not in any way shape or form consistent with a properly-functioning justice system.
In the USA, §58 would be struck down under the vagueness doctrine. And rightfully so, IMHO.
skwdenyer said:
the law should be written so that discretion is codified
Then it's not really discretion anymore. Discretion by its vary nature has inconsistency, but it's better than rigidity or trying to make an impossible exhaustive list. Speeding on a motorway may have been a more PH-appropriate example.
90mph in busy conditions day conditions may be treated differently from 90mph on an empty motorway at night.
skwdenyer said:
The "public interest" will probably ensure that the person at PSNI who "leaked" this data doesn't get charged under §58A
I don't think the lawmakers intended that someone who mistakenly releases such information in such circumstances should be a convicted as a terrorist. I don't necessarily think it's a great law (I'd need to know more about its application over the past 20+ years to see how it's applied in the real world), but that's a separate matter from PI.
MrBogSmith said:
skwdenyer said:
the law should be written so that discretion is codified
Then it's not really discretion anymore. Discretion by its vary nature has inconsistency, but it's better than rigidity or trying to make an impossible exhaustive list. Speeding on a motorway may have been a more PH-appropriate example.
90mph in busy conditions day conditions may be treated differently from 90mph on an empty motorway at night.
skwdenyer said:
The "public interest" will probably ensure that the person at PSNI who "leaked" this data doesn't get charged under §58A
I don't think the lawmakers intended that someone who mistakenly releases such information in such circumstances should be a convicted as a terrorist. I don't necessarily think it's a great law (I'd need to know more about its application over the past 20+ years to see how it's applied in the real world), but that's a separate matter from PI.
Wherever there is discretion, there is a question as to how it is applied, and what political or other pressure is brought to bear. If it’s application is not codified and recorded, the risk is the public will get used to the idea of “one rule for them…” and bang goes the country.
See Tory donors, PPE, lack of £10k Covid party fines, and all manner of other “not in the public interest” decisions.
I don’t know the perfect solution. I’m just not sure it is the discretionary use of massively-over-broad laws that rely on “decent chaps” only using them against “real terrorists.”
See also indefinite detention, secret courts, etc.
I don’t really care how §58 is applied in reality. Bad law is bad law IMHO. I don’t believe we should just trust our “betters” to pick and choose, or that we should live not knowing what the law is.
It is, to me, a basic tenet of modern society that citizens ought to be able to know what the law is, and ensure they are complying with it. §58 and similar blow that concept out of the water.
I realise many will see this as a narrow point. But the whole point of constitutional law is to create principles and follow them.
skwdenyer said:
I agree with you about discretion - up to a point. But let’s use a different example - baksheesh in the Indian sub-continent. Want a seat on a full train? A few dollars to the conductor will fix it for you, as they have discretion. No harm, no foul? The problem is, it is endemic. Want a new law passing? Bigger baksheesh is your solution.
Wherever there is discretion, there is a question as to how it is applied, and what political or other pressure is brought to bear. If it’s application is not codified and recorded, the risk is the public will get used to the idea of “one rule for them…” and bang goes the country.
That’s not discretion though, that’s corruption. If a traffic officer decides not to pull someone over doing 90mph at 6am on the M40 because it’s empty, that’s use of discretion. If the officer stops a car, the driver flashes their warrant card, and off they go when others would have got a NIP, that’s corruption (yes, this supposedly does happen, and if so anyone caught should be hammered with the full weight of the law).Wherever there is discretion, there is a question as to how it is applied, and what political or other pressure is brought to bear. If it’s application is not codified and recorded, the risk is the public will get used to the idea of “one rule for them…” and bang goes the country.
CheesecakeRunner said:
skwdenyer said:
Charged with possessing information that could be of use for terrorists. The information? That released publicly by PSNI…
I've recently been a juror on a case where several of the charges were possession of information useful to a terrorist. It's perfectly possible for that information to be legal and publicly available. In our case it included some fairly basic chemistry texts and other text that is in the public domain.The key aspects of the charge are how the accused got the information, why they got it, how they intended to use the information, or who they intended to give it to. If they were going to, or had used it, for a terrorist purpose (in our case it was making explosives at home), then it's 'possession of information that can be of use to a terrorist'.
Edited by CheesecakeRunner on Tuesday 22 August 10:25
Did you think the law reasonable?
Here's the definition of "terrorism" from TA 2000:
So, by that definition, a hacker trying to expose Government wrongdoing and influence the Government to stop that wrongdoing, by breaking into Government computer systems, would commit an act of terrorism - provided they were doing so for the purpose of advancing a political, religious, racial or ideological cause.
So would a hacker trying to expose the wrongdoing of, say, the Chinese government by similar means and for similar reasons.
(Furthermore, *any* firearms or explosives offence is, by that definition, terrorism.)
Would you be comfortable convicting an IT student who was alleged to be planning to do such hacking of possessing items likely to be of use to terrorists because, say, they had a bunch of computer text books? Does 15 years in jail seem a reasonable penalty for such an action?
The problem with this law is not just that it criminalises the possession of books without a good excuse; it is massively over-broad in its underlying definitions.
The Crown could argue that, say, Stop The Oil endangered a person's life by blocking an ambulance. The Judge would direct the jury that, if they were satisfied that a single life was likely to be endangered then the action met the statutory test of "terrorism." Note the use of "or" in the definition - the range of activities caught is enormous, and far beyond what any reasonable person would consider "terrorism."
It isn't that I think we should be soft on terrorists; it is that we should be very hard on this sort of catch-all legislation.
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