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Three inquiries into hacking claims

News International was facing three fresh inquiries into the conduct of its journalists and executives following the Guardian’s disclosures that Rupert Murdoch’s newspaper empire paid £1m to keep secret the use of criminal methods to get stories.

The director of public prosecutions, Keir Starmer, announced he was intending to launch an urgent review of the evidence relating to phone hacking gathered in the investigation of the News of the World reporter Clive Goodman, who was jailed for obtaining information illegally.

A powerful Commons select committee said it would be calling senior managers from News International to give evidence as early as next week to clarify what they knew about malpractice by journalists at the News of the World. Andy Coulson, the former editor of the paper and now the Conservative party’s director of communications, will be asked to appear. He has always denied he knew reporters working for him had hacked into the mobile phones of politicians and celebrities.

The Press Complaints Commission also announced it was conducting an inquiry.

At Westminster, senior Labour figures continued to call for Coulson to resign and the prime minister said that there were “serious questions” to answer.

Gordon Brown was responding after the Guardian revealed that News Group, the publishers of the News of the World, had made the £1m payout to secure secrecy over out-of-court settlements in three cases that threatened to expose evidence of journalists using private investigators to illegally hack into the mobile phone messages of numerous public figures. It is also alleged journalists gained unlawful access to confidential personal data, including tax records, social security files, bank statements and phone bills. Targets included John Prescott and Tessa Jowell.

The chief executive of the Professional Footballers’ Association, Gordon Taylor, last year received £700,000 from News International in compensation and legal costs, and agreed not to discuss the case.

However, hundreds of other public figures may also have been targeted. Some said they were seeking legal advice. Among them were the celebrity publicist Max Clifford and TV presenter Vanessa Feltz. Lawyers told the Guardian that News International could face expensive legal actions if it was proved that its reporters were engaged in behaviour that breached privacy.

The Met’s assistant commissioner John Yates said Scotland Yard would not be reopening its files because no new evidence had come to light and the original inquiry had concluded phone tapping had occurred in only a minority of cases.

That decision was criticised later when John Prescott, one of those whose phone was allegedly hacked, told the BBC’s Newsnight “serious questions had to be answered” despite Yates’s statement. “Frankly he has come out, he has defined in a very narrow way what he is going to look at, and then gives a report that everything is OK,” he said.

Legal experts said the Yard’s decision would not affect the ability of alleged hacking victims to sue for breach of privacy.

The parliamentary inquiry will focus on executives at News International, including Rebekah Wade, the outgoing Sun editor who has been promoted to News International chief executive; Stuart Kuttner, the News of the World’s outgoing managing editor; Colin Myler, the current News of the World editor; and Les Hinton, the former chairman of News International.

John Whittingdale, the chairman of the committee, said he was particularly keen to question Hinton, who told a previous hearing Goodman had been acting alone.

The Conservative leader, David Cameron, was forced to defend Coulson, but Phil Woolas, the immigration minister, last night insisted that Coulson should lose his job.

Cameron told reporters: “It’s wrong for newspapers to breach people’s privacy with no justification. That is why Andy Coulson resigned as editor two and a half years ago. Of course I knew about that resignation before offering him the job. But I believe in giving people a second chance. As director of communications for the Conservatives he does an excellent job in a proper, upright way.”

The Tories also pointed to Scotland Yard’s decision not to reopen its inquiry.

Nevertheless, the DPP said he was setting up a team to review the evidence and the decision taken over the material discovered during the police inquiry into Goodman and Glenn Mulcaire, a private investigator who was also jailed. “In the light of the fresh allegations … I have ordered an urgent examination of the material supplied to the CPS by the police,” he said.

He was taking this action “to satisfy myself and assure the public that the appropriate actions were taken”. He said the evidence was extensive and complex, “but it has all been located and a small team is rapidly working through it … It will necessarily take some time. I am only too aware of the need for urgency.”

News International broke its silence last night, but did not address the specific allegations made by the Guardian, saying: “News International is prevented by confidentiality obligations from discussing allegations made in the Guardian newspaper.” It said its journalists had complied with relevant legislation and codes of conduct since February 2007, after the Goodman case and Coulson’s resignation.

Alan Rusbridger, the editor in chief of the Guardian, said: “We note that News International has not contested any part of the Guardian coverage – including the central assertion that the company had paid a record £1m to ensure secrecy over damages paid to victims of illegal phone-hacking.”

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Who wants Ireland’s blasphemy law?

New rules which forbid causing ‘outrage’ among religious people have baffled Ireland. We were getting along just fine without them

I’m not sure which piece of unpopular Irish news is being buried by which: the announcement of a second referendum on the Lisbon treaty, or the shuffling through of a law creating penalties for blasphemy, an offence that has never properly existed in the Irish state.

While there is certainly a store of resentment in the population at being asked to vote again (that is: vote properly, you morons, as the government is barely holding back from saying) on the Lisbon treaty, there is a certain sense of bafflement at the new blasphemy legislation, smuggled in under the guise of defamation law reform. Nobody wanted this law: no one can think of a single thundering priest, austere vicar, irate rabbi or miffed mullah ever calling for tougher penalties for blasphemy. Certainly there were the frequent, and frequently ignored missives from Armagh, warning the Irish not to abandon God for 4x4s and Nintendo Wiis. And there was widespread dismay when popular comic Tommy Tiernan pushed the Bible-baiting a bit too far on the Late Late Show. But never did anyone suggest we needed tough blasphemy laws. Until the justice minister, Dermot Ahern, decided we needed to fill the “void” left by our lack of one.

Technically, Ahern is correct that Bunreacht na hÉireann requires that blasphemy be a criminal offence. However, no one ever bothered to formulate what the exact offence might be, and we muddled on for quite a long time without anyone worrying about this (perhaps, as a friend pointed out to me, because all blasphemous material was grabbed by the all-powerful censors long before it could ever get to court). In 1999, there was an attempt to prosecute a newspaper for a cartoon mocking the church, but the judge in that case noted that he could not prosecute, because there was no definition of what legally constituted blasphemy. Well now there is. And it concerns itself with what might or might not cause “outrage among a substantial number of the adherents of [a] religion” (note, not just Christianity, as was the case with English blasphemy law: this is, at least, equal opportunities idiocy).

As Michael Nugent of Atheist Ireland has pointed out:

The proposed law does not protect religious belief; it incentivises outrage and it criminalises free speech. Under this proposed law, if a person expresses one belief about gods, and other people think that this insults a different belief about gods, then these people can become outraged, and this outrage can make it illegal for the first person to express his or her beliefs.

So Irish law has now enshrined the notion that the taking of offence is more important than free expression. If something might cause a motivated group to be “outraged”, rather than, say, cause them to live in fear, then it is illegal, with a fine of up to €25,000 payable.

Note the ease with which a prosecution could be brought, and the punitive nature of the fine: this is not legislation that simply serves to tie up a few loose ends.

The minister claimed that his only alternative to this legislation was to have a referendum. This again, is technically true: any constitutional changes in Ireland require this. But the minister dismissed the notion of organising a referendum as being too costly in these straitened times.

Yet today, we are told there is to be another Lisbon referendum in October. Wouldn’t it have been sensible to hold both the Lisbon referendum and a referendum on the abolition of the concept of blasphemy from the constitution on the same day, cutting down on costs? Wouldn’t it, minister?

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Who wants Ireland’s blasphemy law?

New rules which forbid causing ‘outrage’ among religious people have baffled Ireland. We were getting along just fine without them

I’m not sure which piece of unpopular Irish news is being buried by which: the announcement of a second referendum on the Lisbon treaty, or the shuffling through of a law creating penalties for blasphemy, an offence that has never properly existed in the Irish state.

While there is certainly a store of resentment in the population at being asked to vote again (that is: vote properly, you morons, as the government is barely holding back from saying) on the Lisbon treaty, there is a certain sense of bafflement at the new blasphemy legislation, smuggled in under the guise of defamation law reform. Nobody wanted this law: no one can think of a single thundering priest, austere vicar, irate rabbi or miffed mullah ever calling for tougher penalties for blasphemy. Certainly there were the frequent, and frequently ignored missives from Armagh, warning the Irish not to abandon God for 4x4s and Nintendo Wiis. And there was widespread dismay when popular comic Tommy Tiernan pushed the Bible-baiting a bit too far on the Late Late Show. But never did anyone suggest we needed tough blasphemy laws. Until the justice minister, Dermot Ahern, decided we needed to fill the “void” left by our lack of one.

Technically, Ahern is correct that Bunreacht na hÉireann requires that blasphemy be a criminal offence. However, no one ever bothered to formulate what the exact offence might be, and we muddled on for quite a long time without anyone worrying about this (perhaps, as a friend pointed out to me, because all blasphemous material was grabbed by the all-powerful censors long before it could ever get to court). In 1999, there was an attempt to prosecute a newspaper for a cartoon mocking the church, but the judge in that case noted that he could not prosecute, because there was no definition of what legally constituted blasphemy. Well now there is. And it concerns itself with what might or might not cause “outrage among a substantial number of the adherents of [a] religion” (note, not just Christianity, as was the case with English blasphemy law: this is, at least, equal opportunities idiocy).

As Michael Nugent of Atheist Ireland has pointed out:

The proposed law does not protect religious belief; it incentivises outrage and it criminalises free speech. Under this proposed law, if a person expresses one belief about gods, and other people think that this insults a different belief about gods, then these people can become outraged, and this outrage can make it illegal for the first person to express his or her beliefs.

So Irish law has now enshrined the notion that the taking of offence is more important than free expression. If something might cause a motivated group to be “outraged”, rather than, say, cause them to live in fear, then it is illegal, with a fine of up to €25,000 payable.

Note the ease with which a prosecution could be brought, and the punitive nature of the fine: this is not legislation that simply serves to tie up a few loose ends.

The minister claimed that his only alternative to this legislation was to have a referendum. This again, is technically true: any constitutional changes in Ireland require this. But the minister dismissed the notion of organising a referendum as being too costly in these straitened times.

Yet today, we are told there is to be another Lisbon referendum in October. Wouldn’t it have been sensible to hold both the Lisbon referendum and a referendum on the abolition of the concept of blasphemy from the constitution on the same day, cutting down on costs? Wouldn’t it, minister?

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Jack Straw proposes new war crimes powers

Justice secretary aims to close gap in law to cover UK nationals and residents accused of war crimes dating back to 1991

New powers to prosecute war criminals living in Britain who have committed atrocities dating back to 1991 were unveiled today by the justice secretary, Jack Straw.

He proposes closing a gap in the law so that prosecutions can go ahead against British nationals and residents accused of genocide, war crimes and crimes against humanity.

The changes will not cover people who are “passing through” or on a short visit. Straw said he was looking to see whether it was possible to provide more certainty over who may be considered a British resident.

He will seek to cover acts of genocide, war crimes and crimes against humanity committed after 1 January 1991, which is the date from which the International Criminal Tribunal for the former Yugoslavia is able to operate.

The existing law allows for war crimes and acts of genocide committed anywhere in the world since 2001 to be prosecuted in Britain if they have been carried out by a UK national or resident.

Straw’s decision that the new law should cover war crimes dating back to 1991 raises the prospect of possible prosecution of several Rwandan genocide suspects believed to be living in Britain.

Amnesty International voiced its “grave concern” three years ago over the government’s failure to take action against two men in Britain who the Guardian disclosed were among the top 100 wanted genocide suspects at large and living in Europe.

Both men were mayors of towns in southern Rwanda during the 1994 genocide and were accused by the Rwandan prosecutor general of organising the killings in their provinces. One was living in Bedford and the other in Essex.

The Aegis Trust, an anti-genocide group, believes there are at least 18 suspected war criminals living in Britain, from countries including Sri Lanka, Iraq and Sierra Leone.

Lord Carlile, the government’s official adviser on terrorism laws, has highlighted the legal loophole in the law on war crimes. He has tabled amendments to the coroners and justice bill demanding retrospective powers covering those who are simply present in Britain. His amendments are due to be debated in the House of Lords this afternoon.

Straw said he was strengthening the law to send a clear signal that Britain would no longer be a safe haven for those who commit such crimes.

“Those who have committed genocide or war crimes or crimes against humanity during the 1990s must not escape justice. These people must face up to their terrible crimes and we are doing everything in our power to make them accountable for their actions,” he said.

The minister said the government’s strong preference was for alleged war criminals to be brought to justice in the country where the crimes took place to allow the community that had suffered to see the perpetrators brought to justice. “Where this is not possible, we are committed to ensuring those guilty of these crimes are punished appropriately and to the full extent of the law in this country.”

Straw said he would bring detailed proposals to change the law by amending the coroners and justice bill when the Lords debates the legislation again in the autumn. But he warned that including genocide as an “extra-territorial offence” in British law was not a straightforward proposition and would require detailed discussions.

Ken Macdonald, the former director of public prosecutions, complained this week that the existing legal framework allowed the prosecution of visiting torturers and hostage-takers but not visiting war criminals and Rwandan genocidiares.

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A trial held in a climate of injustice

The outcome of the trial of the Drax protesters was determined the minute the judge banned the consideration of climate change

I would say that if the law considers it acceptable to kill 180 people a year, then the law has some catching up to do.

When Beth Stratford addressed the jury on Wednesday at the trial of the Drax 29 she was speaking in the knowledge that the judge in her trial had already secured a guilty verdict by his earlier decision to ban consideration of climate change from the proceedings. It was a bizarre, deeply flawed decision by Justice Spencer that determined the path of the trial from the outset. In his ruling he wrote,

I rule as a matter of law that … evidence concerning the burning of fossil fuels and global warming is inadmissible. To rule otherwise would allow these defendants to hijack the trial process just as surely as they hijacked the coal train.

We can’t know for sure what was in his mind when he concluded that anthropogenic global warming was so “irrelevant” as to deserve banishment from his courtroom. But I can’t help wondering if the judge – and the wider judicial system – had one eye on the outcome of our recent trial in Maidstone, where six of us were found not guilty of criminal damage despite admitting we climbed and painted on the chimney at Kingsnorth.

Our acquittal in the Kingsnorth case caused great disquiet in Whitehall. The attorney general, Lady Scotland, a member of the government, took active steps towards appealing the decision allowing us to run a climate change defence, before dropping the appeal for reasons unknown (our legal advisers suggested the government may have lost, in the process setting a precedent allowing climate protesters to run the kind of defence banned in the Drax trial).

Now it is evident that instead of appealing our case, the judiciary decided to adopt an alternative strategy – relying on judges to eject the basic laws of physics, biology and chemistry from their courtrooms and declare climate change inadmissible. Indeed, Justice Spencer addressed the question of a scientific consensus on climate change in his summing up to the jury by saying: “There may well be people who would argue against it, certainly against the urgency [of acting], I don’t know, but it’s irrelevant.”

Our earlier acquittal had a small but nevertheless very real influence on the energy and climate change debate in this country, but I am certain that an acquittal of the Drax 29 would have had an immeasurably greater impact. They defended themselves in the most eloquent and articulate fashion, shaming into silence the prosecutors and the men from the police’s National Extremism Unit who sat at the back of court, arms folded, as they were forced to listen to Amy Clancy telling the court how she’d never been arrested before but that the train occupation was the “most reasonable and responsible thing I have done in my life”.

The Drax defendants are heroes of our time. They knew they were almost certain to be convicted from the moment the judge ruled out consideration of climate change. But the protesters pleaded not guilty anyway, they went ahead without legal representation and for two days they forced Justice Spencer’s court to hear evidence of the greatest threat faced by humanity. Their defence ended with Jonathan Stevenson’s address to the jury, in which he said:

The law will eventually have to change and acknowledge the harm that carbon emissions do to all of us, by making them illegal. The only question is whether the law will catch up in time for there to be anything left to protect.

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Balls wants crackdown on lying for school places

The schools secretary wants to quell a rise in the number of parents falsifying information on school application forms

The schools secretary, Ed Balls, today called for an investigation into the number of parents who lie about where they live to secure school places for their children.

The inquiry comes hours after a London council dropped a prosecution against a mother accused of lying about her address, to secure a place for her son at a popular primary school.

Harrow council had taken Mrinal Patel to court for allegedly applying for a place for her five-year-old son, Rhys, at Pinner Park first school using her mother’s address last January. The council said itwithdrew the action to avoid potentially expensive legal costs.

Harrow was prosecuting the 41-year-old under the Fraud Act 2006, but has now been told that it is no longer clear whether the legislation covers this type of case.

Balls has called on the chief schools adjudicator, Ian Craig, to investigate how many parents are falsifying information on school application forms and whether councils have sufficient powers to deter them. The findings of the investigation will be divulged in November, Balls said.

The Local Government Association has said it is “concerned at the worrying trend of increasing numbers of parents willing to break the law”. A study it made of 31 councils 18 months ago found that 24 had seen a rise in the number of parents who had lied on application forms in the last three years.

Balls said councils had the right, under the admissions code, to withdraw a school place if they thought a parent had falsified information. He said the legal advice he had received was that the Fraud Act did not apply in cases such as Patel’s.

“It’s never been our intention to make this an issue of criminal sanctions and the use of the criminal law,” he said. “It is not a criminal offence in education legislation to give false information in order to gain a school place.

“It is down to admission authorities themselves whether they want to go further on a case-by-case basis, and it is for the courts to set a precedent in wider criminal law.”

He added that it was important that parents who were playing by the rules were not disadvantaged by those who were not.

Patel told the BBC that Harrow’s decision to drop the prosecution was “a great relief for me and my family”.

She added: “It’s been an extremely difficult ordeal, and I’m happy to put the matter behind me.

“I have, from the outset, denied the allegations, and the council’s unconditional withdrawal of the proceedings confirms my innocence.”

Patel, who denied the charge, was thought to be the first parent in the country to be taken to court for school application fraud.

David Ashton, the Harrow council leader, said local authorities needed powers to deter parents from submitting false information when applying for school places.

He added that authorities could withdraw a place only if they discovered the information was wrong.

“But this is not a punishment,” he said. “It is the equivalent of telling a shoplifter to put the baked beans they have taken back on the shelf.”

Ashton suggested parents should be fined. “We need some sanction that will stop parents from thinking they’ll ‘have a go’. We aren’t asking for something draconian, but otherwise it is open season for parents. Government has failed to give us ammunition to ensure this is fought fairly.”

In the academic year for which Patel applied, 2008-09, 411 parents expressed a preference for Pinner Park and 90 places were offered to children living less than a mile from the school, Harrow council said.

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Legal challenge to child porn inquiry

Claim that hundreds were convicted through flawed credit card evidence

One of Britain’s biggest online paedophile inquiries is to be challenged in the court of appeal amid allegations from campaigners that hundreds of men have been wrongly convicted in a mass miscarriage of justice.

For more than two years a small group of experts have claimed that Operation Ore, the police inquiry into thousands of British men, was tainted because the database at the centre of the investigation contained evidence of widespread credit card fraud. Their allegations will be tested for the first time in the appeal court within weeks, when a judge examines a test case that could expose a huge miscarriage of justice, lawyers say.

The single judge will decide whether the case should go to a full appeal.

Chris Saltrese, the solicitor representing the convicted man, Anthony O’Shea, said: “If his appeal is successful the convictions of others for the same offence will fall too. We are talking in the hundreds and we say this is a huge miscarriage of justice.”

An estimated 39 men have killed themselves as a result of being arrested and prosecuted during the Ore inquiry, and the details of every individual who was convicted or cautioned have been placed on the sex offenders register.

Senior officers in Ceop, the child exploitation and online protection unit, who co-ordinated the inquiry, have been anticipating the test case for some time. They are adamant that Ore was an extremely successful operation, which led to more than 2,600 British men who downloaded images of child abuse, or attempted to, being brought to justice. The vast majority of them pleaded guilty.

Operation Ore began in 2001 after the conviction in America of a couple behind Landslide Inc, an online trading company that provided access to adult pornography and child abuse images.

US investigators passed the names of 7,100 Britons on the Landslide database to the national criminal intelligence service, a forerunner of Ceop.

The last prosecutions in Ore took place earlier this year.

O’Shea’s case is one of an estimated 200 or more involving men who were convicted of incitement to distribute indecent images of children. A father of two, he was jailed for five months in 2005 for two counts of incitement to distribute indecent photographs of children and three of attempted incitement to distribute indecent images. A lesser charge than possession, incitement was used in those cases where someone’s details were on the Landslide database but there were no images found on the suspect’s computer or in his home.

O’Shea’s home was raided in 2002 but no images were found. Saltrese said his case was that he accessed adult pornography but that his legal team would produce evidence that his credit card had been fraudulently used to access a paedophile site within Landslide.

At the time the card was used O’Shea was at a festival in the south-west of England, Saltrese said.

Ceop says its figures suggest that 161 individuals were convicted of incitement, with 68% pleading guilty. But Saltrese, who represents dozens of those convicted, believes the figure could be much higher. A separate campaign group says that it is dealing with the cases of more than 80 men.

“I have clients who have lost everything: their jobs, their homes, their marriages, their children and their health,” Saltrese said.

He and his experts have been able to get a copy of the Landslide database – which was never disclosed in full to the defence teams in Ore cases.

“It is absolutely riddled with fraud,” he said. “We are not just talking about isolated incidents here. In some cases clients did make a complaint to their credit card companies that they had been the victims of fraud, in others they didn’t, but that is kind of by the by – even if they hadn’t made a complaint we say the evidence against them is unreliable.”

But other experts who worked closely with the police during the Ore inquiry and with defence teams strongly dispute the case put by Saltrese and his team.

Professor Peter Sommer, a leading expert in computer crime, said: “There were very high levels of correlation between people having subscribed to that website and people being found in possession with child abuse images.

“In the incitement cases they did not just use the details on the database as a reason to prosecute. They went to the individual’s bank to confirm that transactions had taken place, they checked whether the individual had ever complained that his card had been used fraudulently. They did not charge everyone they investigated.”

He said that although the defence teams were not allowed access to the whole database, experts had been given access to parts of it. “I am not saying there may not be individual cases where the convictions might be unsafe but to say there was widespread fraud and a widespread miscarriage of justice does not to my mind stand up.”

Brian Underhill, the computer expert who travelled to America to copy the Landslide database for the police as part of the Ore inquiry, told the Guardian: “It’s been two years since the allegation of widespread credit card fraud was put forward and I have yet to see a fragment of tangible evidence to support the allegation.”

Ceop said that Operation Ore had involved an unprecedented number of cases, each of which was tested several times to ensure the validity of the intelligence and evidence before a prosecution was brought.

It said in a statement: “No evidence of widespread or endemic fraud has ever been found in relation to cases pursued to prosecution as part of Operation Ore. The veracity of any evidence to contradict this should be tested in the criminal justice environment.

“To the best of our knowledge all incitement cases included additional evidence to support the prosecution beyond simple, single credit card details.

“At the time of Operation Ore, individuals were suspected of subscribing to a website offering child abuse images. Those who had would have provided personal data to a registration page … name, postal address, email address, a personal password and their credit card details … The IP address of the subscriber may have been captured by the system.

“We would have expected that once a defendant had raised the possibility of being a victim of credit card fraud, inquiries would be undertaken in order to ascertain if that was correct.”

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School place cheating case dropped

Harrow council had been attempting to prosecute Mrinal Patel for using false address to get son place at popular state school

A London council has dropped a test prosecution against a mother accused of lying about her address to secure a place for her son at a primary school, it emerged today.

Harrow council had taken Mrinal Patel to court for allegedly applying for a place for her five-year-old son, Rhys, at Pinner Park first school using her mother’s address last January.

Patel, who denied the charge, was thought to be the first parent in the country to be taken to court for school application fraud.

Harrow was prosecuting the 41-year-old under the Fraud Act 2006, but has now been told it is no longer clear whether the legislation covers this type of case.

The council has decided to withdraw the action to avoid potentially expensive legal costs.

Patel told the BBC the decision was “a great relief for me and my family”.

“It’s been an extremely difficult ordeal, and I’m happy to put the matter behind me,” she added.

“I have, from the outset, denied the allegations, and the council’s unconditional withdrawal of the proceedings confirms my innocence.”

Patel allegedly claimed she had lived at an address within walking distance of the school for 14 years, but council investigators found tax records placed her at a different address, two miles away from the school.

Patel said she had had no intention of returning to her husband’s home, but then went back after four weeks.

She acknowledged she had wrongly stated her address and said she had been under pressure at the time.

“I totally understand how it may appear,” she told the BBC. “I explained that to the council, I gave them my full circumstances.

“I was totally honest and truthful about them. The moment I told them what happened, I accepted they had to withdraw the place. I never tried to hide anything from the council.”

David Ashton, the Harrow council leader, said local authorities needed powers to deter parents from submitting false information when applying for school places.

He added that authorities could withdraw a place only if they discovered the information was wrong.

“The danger here is there is a green light for parents to take a chance, put forward false information, and in the worst cases they don’t get a school place to which they are not entitled to,” he said.

“We don’t want to use the Fraud Act. But we do need – and I would suggest the government wants to consider – some form of sanction.

“Not a draconian sanction, but something so that the parents know it is inappropriate, wrong, and there is some degree of punishment for putting forward false information.

In the academic year for which Patel applied, 2008-09, 411 parents expressed a preference for Pinner Park and 90 places were offered to children living less than a mile from the school, Harrow council said.

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£150m heiress wins court prenup victory

Investment banker-turned-Oxford researcher loses out on millions

They were, it might have seemed, made for each other: the beautiful daughter and heiress of a German paper magnate, and the young investment banker, himself the son of a wealthy French industrialist. But when Katrin Radmacher and Nicolas Granatino fell in love and decided to marry in 1998, neither she – nor her father – were prepared to take any chances with her estimated £150m fortune. Granatino was prevailed upon to sign a prenuptial contract in which he agreed not to make a claim against his wife should they split up.

Eight years and two children later, however, marital bliss had soured, and the couple divorced. But though the prenup would have been binding in either of the couple’s home countries, they had met, married and divorced in London. Knowing that English law did not recognise prenuptial agreements, Granatino, 38, claimed for millions, confident that the contract would be deemed worthless.

Today, that claim was the subject of a dramatic landmark judgment at the court of appeal, after three judges gave the clearest ruling to date that prenups can be “decisive” when settling divorce cases in England. It means that despite his wife’s enormous assets, and an earlier high court award totalling £5.6m that would have given him an income of £100,000 a year for life, Granatino will now receive a much smaller amount, yet to be determined, and a loan for a house that he must return after the younger of the couple’s two daughters, who is now six, reaches the age of 22.

The ruling is all the more striking given that Granatino has given up his banking career to work as a £30,000-a-year biotechnology researcher at Oxford University. Radmacher, 39, said that if her ex-husband “wishes to be an academic he must live as such”.

Radmacher’s solicitor, Ayesha Vardag, said after the ruling: “The court of appeal, in a carefully reasoned, thoroughly modern judgment, has enabled English matrimonial law to catch up with the rest of the world. From today, grown-ups can agree in the best of times what will happen in the worst of times.”

Granatino may believe differently: his solicitors indicated that he would be seeking permission to appeal to the House of Lords.

Legal observers agreed that the ruling confirmed a marked shift in British divorce courts. Nicola Harries, a partner in the family solicitors Stevens & Bolton, said the ruling was “a staggering decision” given the ages of their children. “It is hard to square this decision with the duty of the English court to give first consideration to the welfare of the children – the disparity in lifestyle that the children will experience between their parents’ homes will be stark, to say the least.” Family lawyers, she added, “will need to hurriedly reassess the standard advice they have given about prenups.”

Emma Hatley, a divorce specialist and partner at Stewarts Law, said it would now be “foolhardy” for those signing a prenup to assume they would not be held to it, “regardless of whether, as many still believe, it is an immoral bargain. They must think very carefully … on the rights they are potentially giving up.”

Granatino and Radmacher were in their late 20s when they met at Tramp nightclub in Mayfair in 1998. Radmacher – who is worth more than £54m, with a further estimated £100m inheritance – was running a boutique in Knightsbridge, while her husband-to-be worked for the investment bank JP Morgan. His father Antoine, a former vice-president at IBM, has a fortune of his own and now lives in London.

In a statement yesterday, Radmacher said: “When we met and married, Nicolas and I were broadly on an equal footing financially. He too is an heir to a multimillion pound fortune and when we met was an investment banker earning up to £330,000 a year.

“The agreement was at my father’s insistence as he wanted to protect my inheritance – this is perfectly normal in our countries of origin. My father taught me the value of hard work and family values. Like all wealthy parents, he feared gold diggers. As an heir himself, Nicolas perfectly understood this. The agreement gave me reassurance … that we were marrying for the right reasons.”

Her decision to appeal against the high court’s ruling last year to award her husband a much more substantial sum was because of “what I regard as a broken promise”, she said.

Granatino, however, who was represented by Paul McCartney’s former divorce lawyers Fiona Shackleton and Nicholas Mostyn QC, argued that he had not had independent legal advice before signing, and that his former wife had not disclosed the full extent of her assets.

In his judgment, Lord Justice Thorpe said it had become “increasingly unrealistic” to view prenups as void, a position which, he said, “reflects the laws and morals of earlier generations” rather than those of “an age when marriage is not generally regarded as a sacrament and divorce is a statistical commonplace”.

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Johnson to unveil fast-track asbo system

Home secretary says court delays must be cut so victims of antisocial behaviour can get help quickly

Delays of up to two years in issuing an asbo are to be cut under proposals unveiled by the new home secretary, Alan Johnson, in his first major speech on crime and antisocial behaviour.

Johnson said he was looking at whether it was possible to set maximum waiting times and limits on the number of times a court case could be adjourned to speed the issuing antisocial behaviour orders.

The home secretary said he and the justice secretary, Jack Straw, wanted to help people being severely harassed or intimidated over a long time.

“We will explore what more can be done to speed this process up – in particular, how we can break down any barriers there might be between the courts and people bringing cases before them,” he said. Better training was being looked at for “practitioners”‘ so they could present cases themselves in court, he said.

The Home Office was to create local antisocial behaviour “action squads” to help criminal justice workers deal with severe problems such as underage drinking on an estate or a troublesome family.

Websites are to be set up for people to report antisocial behaviour and avoid the never-ending circle of phone calls faced by some victims.

In the speech at Battersea Arts Centre, south London, Johnson said crime figures showing a 39% fall in offences since 1997 suggested there was no reason to engage in radical restructuring or fire a scattergun of new initiatives.

“The focus must be on listening to the public and looking at what practical steps need to be taken to make the current system, with all the powers and responsibilities that this government has introduced, respond to their concerns,” he said.

He acknowledged that fear of crime was seriously debilitating if there were some streets or estates where people felt they couldn’t step out after dark to the shopbecause they were fearful of the people they might find hanging around the stairwell or outside the off-licence.

The measures on antisocial behaviour are designed to tackle the fact that much troublesome and intimidating behaviour goes unreported because people feel guilty about bothering the authorities or worry they will not be taken seriously.

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A victory for gay rights in India

The Delhi high court’s decriminalisation of homosexuality is the first step towards equal rights for gay Indians

A protracted legal battle has finally come to an end. In a landmark ruling, the Delhi high court scrapped parts of Section 377, a colonial law that criminalised gay sex – and indeed anything other than heterosexual vaginal intercourse – in India. Hence, consensual sex involving two adults of the same sex can no longer be a criminal offence.

The importance of this verdict cannot be understated. This is the first time that an Indian court has gone on record to say that sexual minorities are not second-class citizens, and that they cannot be discriminated against. Granted, the anti-gay law was seldom used to secure convictions. However, for decades, the police and sometimes society at large used the law as an excuse to persecute gay men and women, who were harassed, blackmailed, detained or raped, unable to seek any protection or justice from the law. In addition, the law was also a significant impediment to fighting HIV/Aids among sexual minorities.

No longer. More importantly, the ruling may finally pave the way for sexual minorities to lead open lives, and ultimately to provide them with legal equality. At least, that’s the hope.

But is it too soon to be that optimistic? No sooner had the judgment been passed than all the religious groups in India started opposing it. While the law minister has said that the Congress-led government will study the judgment carefully, the main opposition party, the Hindu nationalist Bharatiya Janata party, is firmly opposed to it. Gay sex is immoral and unnatural and Indian society does not approve of it, they say. The usual pseudo-arguments invoking a nebulous notion of “Indian culture” also abound.

There is a very real worry that in order to appeal to the religious groups, and regional political parties, the government might choose to appeal the decision to the supreme court, though preliminary reports suggest otherwise. After all, only a few days ago, after initially conceding that it might consider scrapping the law, the home ministry backtracked the next day when the news made front-page headlines in national newspapers, triggering opposition from religious groups. Even if the government doesn’t, religious groups and opposition parties have indicated that they will challenge the ruling.

What if that happens? It is quite possible, though unlikely, that the supreme court might overturn the current verdict. It is easy to forget that when the public-interest litigation was first filed eight years ago, the same Delhi high court rejected the plea twice, if only on legal technicalities. And the same court had ruled, only a decade ago, that society’s disapproval was sufficient enough for the law to remain in force, an argument that was used by the previous Congress-led government.

In my opinion, Indian society does still overwhelmingly disapprove of homosexuality. A neighbour walked into my apartment in India as I was watching the story unfold on BBC world news. “What’s gay sex?” she asked. When I explained, she was shocked, and believed that this was further evidence that India was becoming morally depraved; that urban Indians imitate the west with unquestioned readiness. Such sentiments are widespread. Indeed, it is telling that none of the regional television channels in south India have yet to report on this story, which has made national headlines.

I also worry that today’s verdict might trigger a flurry of state legislations, and perhaps national ones too, that are blatantly anti-gay. For example, same-sex marriage and adoption may well be outlawed. In a country where 11 states have independently banned sex education in schools, it is very possible that acts similar to Section 28 in the UK might be enacted. Perhaps I am being overly pessimistic. But having grown up in conservative India where sexuality in general is a big taboo, and having been repeatedly told that homosexuality is abnormal and disgusting, I cannot help but wonder if things really have changed that much. It is easy, and comforting to believe so, but not necessarily true.

Hoping that homosexuality remains legal for good, the most important task ahead is to educate the public and raise public awareness about sexual minorities. Sure, popular culture might help. But gay rights activists need the support of the national and state governments, which need to take a secular, long-term outlook, and invest the necessary resources. Unfortunately, where that kind of support is often considered political suicide, achieving equality will take a long time. Today’s verdict is just the first step in the right direction.

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A victory for gay rights in India

The Delhi high court’s decriminalisation of homosexuality is the first step towards equal rights for gay Indians

A protracted legal battle has finally come to an end. In a landmark ruling, the Delhi high court scrapped parts of Section 377, a colonial law that criminalised gay sex – and indeed anything other than heterosexual vaginal intercourse – in India. Hence, consensual sex involving two adults of the same sex can no longer be a criminal offence.

The importance of this verdict cannot be understated. This is the first time that an Indian court has gone on record to say that sexual minorities are not second-class citizens, and that they cannot be discriminated against. Granted, the anti-gay law was seldom used to secure convictions. However, for decades, the police and sometimes society at large used the law as an excuse to persecute gay men and women, who were harassed, blackmailed, detained or raped, unable to seek any protection or justice from the law. In addition, the law was also a significant impediment to fighting HIV/Aids among sexual minorities.

No longer. More importantly, the ruling may finally pave the way for sexual minorities to lead open lives, and ultimately to provide them with legal equality. At least, that’s the hope.

But is it too soon to be that optimistic? No sooner had the judgment been passed than all the religious groups in India started opposing it. While the law minister has said that the Congress-led government will study the judgment carefully, the main opposition party, the Hindu nationalist Bharatiya Janata party, is firmly opposed to it. Gay sex is immoral and unnatural and Indian society does not approve of it, they say. The usual pseudo-arguments invoking a nebulous notion of “Indian culture” also abound.

There is a very real worry that in order to appeal to the religious groups, and regional political parties, the government might choose to appeal the decision to the supreme court, though preliminary reports suggest otherwise. After all, only a few days ago, after initially conceding that it might consider scrapping the law, the home ministry backtracked the next day when the news made front-page headlines in national newspapers, triggering opposition from religious groups. Even if the government doesn’t, religious groups and opposition parties have indicated that they will challenge the ruling.

What if that happens? It is quite possible, though unlikely, that the supreme court might overturn the current verdict. It is easy to forget that when the public-interest litigation was first filed eight years ago, the same Delhi high court rejected the plea twice, if only on legal technicalities. And the same court had ruled, only a decade ago, that society’s disapproval was sufficient enough for the law to remain in force, an argument that was used by the previous Congress-led government.

In my opinion, Indian society does still overwhelmingly disapprove of homosexuality. A neighbour walked into my apartment in India as I was watching the story unfold on BBC world news. “What’s gay sex?” she asked. When I explained, she was shocked, and believed that this was further evidence that India was becoming morally depraved; that urban Indians imitate the west with unquestioned readiness. Such sentiments are widespread. Indeed, it is telling that none of the regional television channels in south India have yet to report on this story, which has made national headlines.

I also worry that today’s verdict might trigger a flurry of state legislations, and perhaps national ones too, that are blatantly anti-gay. For example, same-sex marriage and adoption may well be outlawed. In a country where 11 states have independently banned sex education in schools, it is very possible that acts similar to Section 28 in the UK might be enacted. Perhaps I am being overly pessimistic. But having grown up in conservative India where sexuality in general is a big taboo, and having been repeatedly told that homosexuality is abnormal and disgusting, I cannot help but wonder if things really have changed that much. It is easy, and comforting to believe so, but not necessarily true.

Hoping that homosexuality remains legal for good, the most important task ahead is to educate the public and raise public awareness about sexual minorities. Sure, popular culture might help. But gay rights activists need the support of the national and state governments, which need to take a secular, long-term outlook, and invest the necessary resources. Unfortunately, where that kind of support is often considered political suicide, achieving equality will take a long time. Today’s verdict is just the first step in the right direction.

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Government blocks anti-terror chief’s book

Court injunction on Andy Hayman’s The Terrorist Hunters, which includes details of De Menezes and Litvinenko cases

The attorney general has blocked the publication of a book by Britain’s former head of counter-terrorism, Andy Hayman, that gives the inside story of the fight against Islamist extremism.

Lady Scotland stepped in at the last minute to obtain an injunction preventing The Terrorist Hunters from going on sale today. The move came even though copies of the book had been sent two months ago to the Crown Prosecution Service, the Cabinet Office, MI5 and MI6 and the Metropolitan Police Authority.

Its author, the retired Scotland Yard assistant commissioner Andy Hayman, gives a behind-the-scenes account of the 7 July attacks, the shooting of Jean Charles de Menezes and the fight against terror.

He wrote about the murder of the Russian dissident Alexander Litvinenko and his meetings with top-level political and intelligence officials.

Thousands of copies of the 372-page book were delivered to bookshops nationwide ahead of its publication today.

An advisory notice highlighting the injunction, granted by an unnamed high court judge, was circulated to newspaper editors at 11.45 last night.

The full reasons for the injunction cannot be published for legal reasons linked to continuing criminal proceedings.

The book, however, was still available for sale on the Amazon website today, which stated: “Get it by Friday if you order in the next five hours.”

The Times newspaper serialised sections of the Bantam Press book, co-written by the former BBC home affairs correspondent Margaret Gilmore.

Last week the Metropolitan police commissioner, Sir Paul Stephenson, complained that he was not given a preview of the book’s contents. He told a meeting of the Metropolitan Police Authority that he was reluctant to give it more publicity.

Stephenson said members of the force’s watchdog might like to consider whether senior officers should be allowed to publish such books.

“I find it surprising as commissioner that I have no right on this occasion to have access to the book before it is published. That surprises me. It is troublesome and it does not help good conduct.”

A spokeswoman for Bantam Press owner Random House declined to comment.

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German heiress wins ruling on prenuptial

Court of appeal cuts award to Katrin Radmacher’s ex-husband that exceeded sum set out in couple’s prenuptial agreement

One of Germany’s richest women claimed victory today in her attempt to get a prenuptial agreement recognised in the English courts.

Katrin Radmacher, who is said to be worth £100m, won a court of appeal ruling that such contracts should be taken into account by judges dividing assets after a marriage fails.

Her former husband, Nicolas Granatino, had agreed not to make any claims on her fortune if they split up, but was awarded £5.85m for his own use by a high court judge last year.

This has been cut to about £1m as a lump sum in lieu of maintenance, with a fund of £2.5m for a house, which will be returned to Radmacher when the youngest of their two daughters, now six, reaches the age of 22. His debts of about £700,000 are to be paid off by the heiress, who had always agreed to this settlement.

The couple’s marriage was said to have broken down after Granatino, 37, gave up a lucrative job in the emerging markets sector in 2003 to become a £30,000-a-year biotechnology researcher at Oxford University. They divorced in 2006.

Granatino is expected to seek permission to take the case to the House of Lords.

At a hearing in April, Richard Todd QC, representing Radmacher, told a panel of three court of appeal judges, headed by Lord Justice Thorpe, that the freedom to agree a contract was “at the heart of all modern commercial and legal systems”. He said Radmacher had never said her former husband would leave the marriage with nothing.

Radmacher, 39, said in a statement: “I am delighted that the court accepts that the agreement Nicolas and I entered into as intelligent adults before our marriage should be honoured. Ultimately, this case has been about what I regard as a broken promise.

“When we met and married, Nicolas and I were broadly on an equal footing financially. He too is an heir to a multimillion-pound fortune and, when we met, was an investment banker earning up to £330,000 a year.The agreement was at my father’s insistence as he wanted to protect my inheritance. As an heir himself, Nicolas perfectly understood this.

“The arrangements the court has ordered will enable our daughters to live comfortably when they are with their father, and that is the way it should be. Nicolas and I made each other a promise and all I have been asking is that he be kept to it.”

Her solicitor, Ayesha Vardag, said: “For 160 years prenuptial contracts were said to be void for public policy reasons. They were put in the same category as contracts to kill your hated spouse. Now, in a landmark judgment, three of the most highly-respected judges in the land have ruled that prenups can be decisive in determining the financial division on divorce. From today grown-ups can agree in the best of times what will happen in the worst of times.”

TRadmacher, a paper industry heiress, had challenged a family division ruling by Mrs Justice Baron that it would be “manifestly unfair” to hold Granatino to the prenuptial contract, which was signed in Germany before the couple married in London in 1998. Although the judge recognised that the prenuptial agreement would have been fully enforceable in Germany or France, she ruled that they had never been legally binding in this country. She said the arrival of the couple’s children had “so changed the landscape” that it should be set aside.

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Britain’s fear of protest

The mob has always been the bogeyman of British leaders – an attitude that persists towards today’s peaceful protesters

In our national mythology, John Bull liked to protest. He did it well and with inventive good humour, standing up to the powers that be when they trod on his toes. In truth it has always been exceptionally hard to protest in Britain. In recent months much of the country has been shocked at the response of the police to protests. It’s not British, some people say. Others see it as evidence of a looming police state. Most clearly it shows that people in power share a barely articulated belief that civil society is so vulnerable that a puff of breath will send it crashing to the ground.

In this respect our current leaders are in step with history. The mob has always been the bogeyman of leaders in this country. The Peasants’ Revolt of 1381 haunted the medieval and early modern official mindset, as a horrific example of what happened if you did not act fast to stamp out the first spark of violence. Memories of the civil wars traumatised generations. The watchword of the Glorious Revolution of 1688 was “passive resistance” – a weedy hope that bad men would go away if you wished for it hard enough. Certainly, the peaceful nature of the revolution appeared to show that liberty in Britain came from polite discussions. Above all, the lesson learnt was that once the people had a taste of power they would become rabid.

It might sound like a paradox but the fear of protest was closely bound up with the defence of liberty. Liberty in Britain has been most closely associated with privacy and private property. “Your home is your castle” has been the uninspiring slogan of freedom in this country. What could jeopardise this more than the property-less mob? Britain achieved many important liberties early in its history. Politicians and public opinion was very proud of this fact in the 18th and 19th centuries. The happy state of affairs, this organic evolution, could only be disturbed by popular protest. It would destroy all those subtle balances which had developed through the course of history. In the 1930s the lord chief justice could say that “English law does not recognise any special right of public meeting for political or other purposes”.

Protest gets written out of the history of the development of civil liberties in this country. Taking the long view of history shows, indeed, that few liberties came from revolution or direct action. Yet that is to misread history. I argued in my previous post that the struggle for liberty is more like a guerrilla campaign than all-out war, the victories of which are obscure and often incomplete. Never is this so clear than when we consider protest. Many of the victories of the 18th and 19th centuries were only achieved because behind a John Wilkes, a William Hone or a Henry Hunt stood a crowd. When the state gradually backed down from restrictive measures and began to reform itself it was partly because the threat of violence stalked in the background. Yet protestors have always been seen as being part of the losing side of history. Wat Tyler, the Levellers, the Chartists, those who clashed with the police on Bloody Sunday in 1887 and many others had a profound impact on our politics without, as it were, winning a match.

So easily are these struggles written out of our history that protest has been seen as un-British, not the done thing. Today the same assumption that freedom and order are intimately connected reigns at the centre of power, even if it is articulated in a different way. It is the assumption that all the great causes of history have been sorted out or will shortly be sorted out by a beneficent government. Why rock the boat? And the presumption in favour of private property has been replaced with a presumption in favour of the peaceable – or quiescent. Antisocial behaviour has become one of the great crimes of the age, and what is more antisocial than blocking a street, picketing a shop, temporarily closing a power station or embarrassing the government by shouting at a visiting world leader? What is more harmful to the supposedly fragile fabric of society than words or actions which may offend? Passivity is, in this view, a civic virtue: a good citizen is someone who keeps the economy chugging along by visiting the mall. What could be less offensive than that?

This is to invent new ways to achieve the same ends. Indeed, protest can sometimes damage democracy. But it is also clear that protest has been crucial to the development of liberty and democracy. Today’s unpopular cause is tomorrow’s political orthodoxy. Protest is often people’s first and most profound involvement with politics.

Protest has rarely had a good press in Britain and I am pessimistic that things will ever change. We live at a time when restrictions on protests in Parliament Square are supported on the grounds of health and safety and because it makes the tourist experience more sanitary. Which is to say, of course, that health’n'safety and the tourist industry trump politics: mind how you go! It has made Westminster an intimating place for anyone who has an opinion. It is little wonder that disengagement with politics is endemic. The government and the police have a daunting arsenal of laws and equipment. It is out of proportion to the threat of disorder and it is fatal to politics.

This is the case in all ages. Our statute book and common law bristle with restrictive laws and always have done. In the volatile 1930s the state was adept at shutting down any manifestation of dissent, from Communist AGMs to humble soapbox orators. Often it just dusted down long-forgotten acts of parliament. A meeting could be broken up by a police constable if he apprehended that a breach of the peace was likely, if it impeded other citizens or if a policeman considered that a person of “reasonable firmness and courage” might be alarmed (to name but three instances). Thus the meek campaigner against unemployment was lumped together with the BUF thug. The fact that the neglected statute book needed to be brought down from the shelf suggests, for the optimistic at least, that willing amnesia on the part of officialdom can allow liberty to thrive. Rare, however, is the government which possesses these liberal instincts or is scared into inaction. Taking a sledgehammer to crack a nut is an ingrained habit for those in power in this country; perhaps it goes back to 1381.

When John Wilkes was on trial the judge tried to silence his rowdy supporters. “This is not the clamour of the rabble, my lord,” Wilkes replied, “but the voice of liberty, which must be heard.” Sometimes it is hard to distinguish between the two, and it has been a repeated failure of British politicians to make the effort. By taking a tough line every time something looks like getting out of hand, the state intimidates the voice of liberty as much as it prevents anarchy.

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Britain’s fear of protest

The mob has always been the bogeyman of British leaders – an attitude that persists towards today’s peaceful protesters

In our national mythology, John Bull liked to protest. He did it well and with inventive good humour, standing up to the powers that be when they trod on his toes. In truth it has always been exceptionally hard to protest in Britain. In recent months much of the country has been shocked at the response of the police to protests. It’s not British, some people say. Others see it as evidence of a looming police state. Most clearly it shows that people in power share a barely articulated belief that civil society is so vulnerable that a puff of breath will send it crashing to the ground.

In this respect our current leaders are in step with history. The mob has always been the bogeyman of leaders in this country. The Peasants’ Revolt of 1381 haunted the medieval and early modern official mindset, as a horrific example of what happened if you did not act fast to stamp out the first spark of violence. Memories of the civil wars traumatised generations. The watchword of the Glorious Revolution of 1688 was “passive resistance” – a weedy hope that bad men would go away if you wished for it hard enough. Certainly, the peaceful nature of the revolution appeared to show that liberty in Britain came from polite discussions. Above all, the lesson learnt was that once the people had a taste of power they would become rabid.

It might sound like a paradox but the fear of protest was closely bound up with the defence of liberty. Liberty in Britain has been most closely associated with privacy and private property. “Your home is your castle” has been the uninspiring slogan of freedom in this country. What could jeopardise this more than the property-less mob? Britain achieved many important liberties early in its history. Politicians and public opinion was very proud of this fact in the 18th and 19th centuries. The happy state of affairs, this organic evolution, could only be disturbed by popular protest. It would destroy all those subtle balances which had developed through the course of history. In the 1930s the lord chief justice could say that “English law does not recognise any special right of public meeting for political or other purposes”.

Protest gets written out of the history of the development of civil liberties in this country. Taking the long view of history shows, indeed, that few liberties came from revolution or direct action. Yet that is to misread history. I argued in my previous post that the struggle for liberty is more like a guerrilla campaign than all-out war, the victories of which are obscure and often incomplete. Never is this so clear than when we consider protest. Many of the victories of the 18th and 19th centuries were only achieved because behind a John Wilkes, a William Hone or a Henry Hunt stood a crowd. When the state gradually backed down from restrictive measures and began to reform itself it was partly because the threat of violence stalked in the background. Yet protestors have always been seen as being part of the losing side of history. Wat Tyler, the Levellers, the Chartists, those who clashed with the police on Bloody Sunday in 1887 and many others had a profound impact on our politics without, as it were, winning a match.

So easily are these struggles written out of our history that protest has been seen as un-British, not the done thing. Today the same assumption that freedom and order are intimately connected reigns at the centre of power, even if it is articulated in a different way. It is the assumption that all the great causes of history have been sorted out or will shortly be sorted out by a beneficent government. Why rock the boat? And the presumption in favour of private property has been replaced with a presumption in favour of the peaceable – or quiescent. Antisocial behaviour has become one of the great crimes of the age, and what is more antisocial than blocking a street, picketing a shop, temporarily closing a power station or embarrassing the government by shouting at a visiting world leader? What is more harmful to the supposedly fragile fabric of society than words or actions which may offend? Passivity is, in this view, a civic virtue: a good citizen is someone who keeps the economy chugging along by visiting the mall. What could be less offensive than that?

This is to invent new ways to achieve the same ends. Indeed, protest can sometimes damage democracy. But it is also clear that protest has been crucial to the development of liberty and democracy. Today’s unpopular cause is tomorrow’s political orthodoxy. Protest is often people’s first and most profound involvement with politics.

Protest has rarely had a good press in Britain and I am pessimistic that things will ever change. We live at a time when restrictions on protests in Parliament Square are supported on the grounds of health and safety and because it makes the tourist experience more sanitary. Which is to say, of course, that health’n'safety and the tourist industry trump politics: mind how you go! It has made Westminster an intimating place for anyone who has an opinion. It is little wonder that disengagement with politics is endemic. The government and the police have a daunting arsenal of laws and equipment. It is out of proportion to the threat of disorder and it is fatal to politics.

This is the case in all ages. Our statute book and common law bristle with restrictive laws and always have done. In the volatile 1930s the state was adept at shutting down any manifestation of dissent, from Communist AGMs to humble soapbox orators. Often it just dusted down long-forgotten acts of parliament. A meeting could be broken up by a police constable if he apprehended that a breach of the peace was likely, if it impeded other citizens or if a policeman considered that a person of “reasonable firmness and courage” might be alarmed (to name but three instances). Thus the meek campaigner against unemployment was lumped together with the BUF thug. The fact that the neglected statute book needed to be brought down from the shelf suggests, for the optimistic at least, that willing amnesia on the part of officialdom can allow liberty to thrive. Rare, however, is the government which possesses these liberal instincts or is scared into inaction. Taking a sledgehammer to crack a nut is an ingrained habit for those in power in this country; perhaps it goes back to 1381.

When John Wilkes was on trial the judge tried to silence his rowdy supporters. “This is not the clamour of the rabble, my lord,” Wilkes replied, “but the voice of liberty, which must be heard.” Sometimes it is hard to distinguish between the two, and it has been a repeated failure of British politicians to make the effort. By taking a tough line every time something looks like getting out of hand, the state intimidates the voice of liberty as much as it prevents anarchy.

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Prosecutors press for action on BNP

• Pressure mounts for end to race hate law loopholes
• CPS powerless to pursue complaints made by police

Senior prosecutors are calling for the laws on race hate crimes to be strengthened to counter the threat posed by the British National party.

The threshold for securing a conviction is so high that far-right activists are able to evade prosecution for material that many people would consider to be threatening and racist, according to sources at the Crown Prosecution Service (CPS).

Prosecutors blame the lack of convictions on the strict legal test, which requires showing an intention to “stir up racial hatred” or a likelihood that racial tension would be stirred up.

The offence, which was created under the Public Order Act, only applies to acts that take place or are witnessed in public so it does not cover leaflets that are pushed through people’s letter boxes. It also offers no protection against the publication of inaccurate or false information.

Several BNP leaflets have been referred to the CPS over the last five years – some by senior police officers and one by a judge – but no further action has been taken.

Peter Herbert, the chairman of the Society of Black Lawyers and a part-time judge, submitted a complaint last year over a leaflet called The Changing Face of London that had two pictures, one depicting an all-white street party from the 1950s, the other showing three Muslim women wearing a niqab, one of whom is making a V-sign towards the camera.

“Under the law, it has been extremely difficult to mount a prosecution against extremism and hate speech,” said Herbert. “But with the rise of the BNP, and the subsequent rise in racist attacks and the fear the party’s leaflets can provoke, it is essential we are given the tools to deal effectively with this threat.”

Herbert said the law should protect people from material that creates a fear of racist attacks as well as those that are deemed to incite racial hatred. “All the evidence suggests that it is people from minority communities and the faith communities that are put in fear of violence when racist leaflets are delivered in town centres or on estates. If someone handed out the same thing in the workplace, most employers would consider that gross misconduct; if someone does the same thing in the street, there is very little we can do.”

Another complaint was submitted to the CPS by Lancashire police who expressed concern about a BNP leaflet which blamed Muslims for the heroin trade. Four people were arrested and released on police bail last year but detectives are still waiting to hear from the CPS about whether they have grounds to prosecute for “incitement to stir up racial hatred”.

In another incident, Derbyshire police alerted the CPS about a BNP election leaflet claiming three asylum seekers had raped a woman. The police said the rape claims were “unfounded”, but the CPS said there were no grounds to prosecute under existing law. “Whilst those details in the leaflet regarding the alleged rape are factually incorrect, this in itself does not constitute a criminal offence,” said a CPS spokesman at the time.

A senior prosecutor told the Guardian: “There are numerous problems. The test to show incitement is very high and the material has to be distributed in public rather than put through people’s doors. This makes it really difficult to get convictions for material which many people consider racist.”

A CPS source confirmed that the organisation would review its policies on prosecuting race hate crimes following the election of two BNP candidates, including the party’s leader, Nick Griffin, to the European parliament.

“We will need to look again at the situation with prosecuting incidences of this material,” the source said.

Last week, the Equality and Human Rights Commission, the official watchdog on race and equality, wrote a formal letter to the BNP giving them one month to remedy three alleged breaches of the Race Relations Act, including the party’s whites-only membership policy.

That announcement increased the likelihood of legal action against the BNP in the civil courts, but critics say there have been too few criminal proceedings, despite material distributed by the party which many regard as inflammatory.

Herbert, the former chair of the Metropolitan police race hate crime forum, said a number of anti-racism and human rights bodies would back a change in the law.

“I expect a strong coalition will form around this idea and put pressure on the government to instigate a change in primary legislation as soon as possible,” he said.

Anti-racism campaigners welcomed the crackdown on inflammatory or racist leaflets but warned more was needed to effectively counter the threat posed by the BNP.

“Where the BNP has been distributing racially offensive material, it is right that they should be prosecuted with the full force of the law,” said a spokesman for the anti-fascist organisation Searchlight. “However, the way we will defeat Nick Griffin and his party is street by street and estate by estate, not lawyer by lawyer and courtroom by courtroom.”

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Why oh why…………………

do companies cut back on marketing in a recession? All of us in marketing communications wonder about this. My father in law even asked me about it over the weekend, and he’s an artist. Anyway, good article on the issue in the latest New Yorker magazine.