DIME Weapons and Blood Libels

DIME Weapons and Blood Libels

There have been "accusations" that Israel are using dense inert metal explosive (DIME) weapons in Gaza. The accusations amount to blood libel, which sadly is a common tactic among opponents of Israel. The accusations' source is Mads Gilbert, who is arguably not an unbiased source, being politically on the far left and of course embedded in the Hamas machine currently. 

DIME weapons are not, contrary to the allegations, banned. DIME weapons are designed to minimise collateral casualties, so it would be strange to consider them an inappropriate weapon. Part of the blood libel is the assertion that DIME weapons "cause cancer", which is based on animal models which are notoriously unreliable. This accusation is coupled with the accusation that DIME weapons are particularly lethal, an odd combination. 

Any weapon used inappropriately can be a war crime, but there is nothing about DIME weapons which makes them worse than "conventional" weapons. The evidence DIME weapons are being used seems tenuous in any case, and seems to be a pretext for demonizing Israel - a classic blood libel.

Let Sleeping Judges Lie?

The BBC has reported that a trial was abandoned after the judge apparently fell asleep. This is probably commoner than realised. There was an Australian judge who received a great deal of publicity for falling asleep and snoring loudly during several cases, as reported by Grunstein and Banerjee in the journal Sleep:

According to the newspaper, it was claimed that the judge fell asleep numerous times during a corporate fraud trial and in another separate shooting trial, both in 2002. Subsequently, in 2003,
he was reported to have fallen asleep during a rape victim’s evidence.
Following this episode, Judge Dodd was found allegedly asleep during a drug-smuggling trial that, the newspaper stated, led to the jurors nicknaming him “Judge Nodd.” In 2004, he was reported to be asleep intermittently during a 7-month trial of 7 men who were eventually convicted of shipping 383 kg of pure cocaine into Australia. The newspaper alleged that, during this 2004 trial, the defense lawyer would hand notes to court staff who were sitting near to Judge Dodd to wake him up. The sleepiness was also noted by jurors in the trial, who commented on Judge Dodd’s loud snoring. The accused were subsequently sentenced for up to 24 years in prison.

The unfortunate Judge Dodd actually had a medical problem:

In late 2004, some months prior to any press reports about his sleepiness during trials, Judge Dodd obtained a medical consultation regarding his sleepiness, was diagnosed with obstructive sleep apnea, and was apparently treated effectively. There were no reported sleep episodes following commencement of treatment. This was confirmed in a statement by District Court Chief
Judge Reg Blanch.

Trials are quite boring for long stretches, and it is the jury more than the judge who has to pay attention to proceedings. Certainly it has been held that judicial sleep is not fatal to the defendant's prospects of a fair trial, as Grunstein's and Banerjee's paper relates:

The Appeals Chamber found that appellants had failed to establish that Judge Karibi-Whyte was asleep during substantial (emphasis added) portions of the trial, although video evidence apparently showed the judge having regular sleep episodes usually up to 10 seconds long, sometimes up to 30 seconds with snoring. On 1 occasion, the judge was asleep for 30 minutes. The Appeals Chamber did comment that the judge’s conduct was not regarded as appropriate for a judge but still rejected the ground of appeal. (International War Crimes Tribunal, The Hague)

Local journalist Miss Tamsen Vian-Courtenay commented that Judge Coombe’s “head fell so far forward as to be almost touching the table,” with sounds that she thought were snoring and that
the judge “seemed to wake up with a start.” However the Court of Appeals rejected the men’s appeals against the conviction, though they did reduce their sentences. Lord Justice Rose of the Appeals Court said it was “highly regrettable” that Judge Coombe had fallen asleep, but it did not render the conviction unsafe. “Because the appearance as well as the actuality of justice being done is important, no judge ought in any circumstances to fall asleep during any stage of a criminal trial.” However the men’s lawyers had not demonstrated that Judge Coombe had failed to sum up significant evidence. (Court of Appeal, London, United Kingdom)

So let sleeping judges lie.

Joint enterprise: possible reforms

Joint enterprise: possible reforms

There seem to be two main issues with joint enterprise, particularly when it is used in murder cases. The first is the level of involvement that is needed to make out the offence. It appears in some cases that the evidence required to support an assertion of a joint enterprise is quite tenuous. According to DPP v Woolmington, any and all elements that make out an offence need to be proved beyond reasonable doubt. It is not enough to suppose that friends must have known the intentions of each other, for example. The second is the issue of fair labelling. Where the defendant is undeniably involved in some way in the offence, their involvement may still be so tangential that being convicted of the full offence does not seem like fair labelling. There are particular issues with murder because of the mandatory life sentence.

Joint enterprise is a common law doctrine, and so reform via the courts is possible. This sort of incremental adjustment might be considered most appropriate. A diminution of the ambit of joint enterprise might be considered the best option, given the policy issues of joint enterprise in tackling gang violence.

Another option is a statutory replacement. Violent disorder is a suitable statutory alternative for less serious offences. The maximum sentence for this 'either-way' offence is 5 years imprisonment. An option with a higher maximum sentence might be appropriate for gang homicide cases. 

"Common": Did the programme get the law on joint enterprise right?

"Common": Did the programme get the law on joint enterprise right?

Judging by Twitter, "Common" (written by Jimmy McGovern) has created a storm. The drama revolves around a young man caught by the legal doctrine of joint enterprise. There have been calls from campaigners to reform the law because of injustices created. Did the programme represent the law on joint enterprise accurately? 

The protagonist in "Common", Johnjo, is a young man who is sitting in a car in the opening scene, when his friends jump in and ask him to drive off. It transpires that one of his friends has stabbed someone. The knife is dropped down the drain. The victim dies in hospital. The perpetrator threatens Johnjo and his family with dire consequences if he "grasses". Johnjo thought they were going out for a pizza, but it turns out the other young men in the car went out to "get someone".  The facts are a little contrived; Johnjo leaves the engine on and stays in the car because it's cold, rather than for a quick getaway. The detective's comments also seem rather OTT. He revels in his deceptive and pejorative portrayal of the scope of joint enterprise. The judge certainly would not claim that the courts could not change the common law. This is a major legal error.  

The narrative that has been taken up in much of the press is that joint enterprise is a "dusty and illogical old law". However, as the Guardian points out, the doctrine enabled the conviction of two of the murderers of Stephen Lawrence. It was responsible for the conviction of Gnango for the shooting of an innocent bystander by "Bandana Man", during a gunfight which he was involved in. It enabled the conviction of members of the gang that killed Ben Kinsella. 

The case law on the common law doctrine of joint enterprise suggests that Johnjo's involvement would not be regarded as acting with a common purpose. He was not part of a joint enterprise. The doctrine is justified on the grounds of policy. When two men killed a man during an attempted armed robbery of a gunshop in Dundee, each defendant lodged a special defence of incriminating the other. By the doctrine of joint enterprise, they were both convicted of murder. The same legal tactics will occur in killings by gangs. The leverage gained on the actual murderer by the prosecution's ability to convict by the doctrine of joint enterprise is a legitimate tactic to achieve justice where there are evidential difficulties. I think the portrayal of the dilemma posed even for the innocent by plea bargains was excellent though. It demonstrated the very real possibility of the factually innocent pleading guilty under such arrangements. The harshness of the doctrine is exacerbated by the mandatory life sentence for murder. The law has always had to tread a fine line between due process and policy considerations. 

To move onto controversial real life cases, there was discussion of joint enterprise in another programme, Guilty by Association. This took a more balanced view of the law. Several cases were discussed, including the Alex Henry case. His sister, Charlottle May Henry, Tweeted that Alex Henry was found guilty of murder for "merely being present at a spontaneous altercation". This is not the case according to press reports of the trial. According to GetWestLondon:
"the victim and his brother were with friends in Ealing before Grant-Murray came across them in Northcote Avenue. An argument began and the defendant was allegedly heard on the phone saying ‘bring a knife’ or ‘bring the knives’. When the two other defendants approached, one or both of them were armed with knives and the three stabbed both Mr Khezihi and his brother in the back before running off."

The doctrine of joint enterprise requires acting with a common purpose. It is a part of accessory liability, whereby not only the perpetrator of the crime but all who were involved are guilty of an offence. Simply being present at the scene of a murder will not result in a conviction under joint enterprise. The fourth defendant was acquitted. He persuaded the jury that he was not involved in the murder. Henry and Ferguson were apparently asked to come with a knife or knives. If this was the case, this suggests that this was not a spontaneous altercation. The phone call is disputed however; Charlotte Henry kindly sent me more information about this issue. If there was no phone call, the case looks extremely flimsy. 

My feeling is that Jimmy McGovern didn't succeed in portraying the reality of the law. There is a debate to be had about the scope of joint enterprise, but "Common" didn't provide the public with the necessary facts to make their minds up about the law. Even the media commentators failed to appreciate the relevance of the facts of the case. The jury weren't put to the question. The British jury of twelve peers have always been part of protection against oppressive laws. Of course, this is not an infallible safeguard against over-expansive laws and interpretations of laws - but the common sense and sense of justice of the British public is a bulwark against the excesses of the criminal justice system. As one barrister pointed out, the feeling of many is that people involved in gang crimes should be punished if they are part of that crime, not necessarily the actual knife or gun wielder.

"Never events" - what are they?

"Never events" - what are they?

The term "never event" is being bandied around a lot at the moment it seems. Whenever technical terms like "never events" are taken by the wider community, they tend to be misused and abused by a process of appropriation for situations that are outside the initial ambit. In essence, they are used to label something by analogy, often as part of a moral panic.  

Apparently "whistle blowing" should be a never event. Or at least "true whistle blowing". This betrays a lack of understanding of what a "never event" is. The origin of never events is the billing system in the United States. If healthcare providers are funded for the treatment of the results of negligent care, then there is a perverse disincentive to preventing these complications, such as pressure ulcers. Further, never events are generally considered wholly preventable by an appropriate system for care. Their occurrence is prima facie evidence for either a failure to provide such a system, or the culpable failure of an individual to comply with that system. An example of this is operating on the wrong site (usually on the wrong side), or giving a blood transfusion to the wrong patient. Here the issue is more clearly patient safety than billing issues.

This is by contrast to other causes of harm such as delayed diagnosis or misdiagnosis, which may not be attributable to any fault as such, and are certainly not always amenable to elimination by better systems design. 

The attempt to appropriate the "never event" for these totally unrelated issues is at best sloppy, at worst a deliberate fudge. 

Tracey: some more thoughts

Tracey: some more thoughts

There has been a lot of interest, naturally, in the Tracey decision. Some of the comments have been insightful and thought-provoking. Some of them have been neither.

One doctor expressed his concerns about the decision with this sketch:

"Dr Ethic “Now there is something else I have to talk with you about. The High Court and General Medical Council says I must have this conversation with you. It is about cardio-pulmonary resuscitation and do not attempt CPR decisions. Now CPR is a treatment for ventricular fibrillation or ventricular tachycardia or standstill in patients who are having a heart attack. Let me reassure you that you are not having a heart attack. Now CPR is invasive causing in an elderly post menopausal woman like you, multiple painful fractured ribs and sternum. Also CPR does not work in people over 80, only in really exceptional circumstances, and certainly not on a general ward. A failed CPR results in death.

Now a recent study from Scotland shows that at your age and having been in hospital once, you have a one in three chance of death in the next year. I have to discuss with you that CPR is not going to be used when you come to die. In the meantime as I said we are going to do all the treatments that are wise and likely to work. So I am going to sign your DNACPR form and Fergus will see you tomorrow.

That’s OK then? Everyone happy, let’s move on, we have 23 more cases to see before patients’ protected lunch time, the lung MDM and my two week cancer wait clinic at 1pm, which is overbooked by 50%.”

(excerpt but full sketch available at link below)

https://www.dropbox.com/s/ptm8wtyiazgm40t/The%20DNACPR%20Sketch.doc

Obviously this is a parody (although though some po-faced and credulous journalists and nurses didn't realise this), but it illustrates an important point. The courts intervene in the doctor-patient relationship at their peril. 

One naive healthcare journalist commented that the issue was simple, it was about having compassion and respect. Thus speaks someone who has no idea about the realities of medical practice. For many frail people near the end of life, forcing a conversation on them about an intervention which would be futile is not remotely compassionate. One healthcare lawyer argued that Tracey does not entail forcing such discussions on patients. That is very much arguable. It must remembered that Mrs Tracey herself avoided the discussion of CPR.

The court ruling does not (and would not) force doctors to provide inappropriate care. So nothing about this ruling will prevent the decision being made after cardiac arrest by a junior doctor (possibly only after some undignified and painful CPR). Neither will it prevent the use of code words that signify the inappropriateness of CPR. We may just see the return of the bad old days of very few people being designated as DNAR, and having to undergo an undignified rite of passage which amounts to an assault prior to death. It would be much better to have a consistent doctrine for this invasive procedure, namely requiring informed consent for it to be provided. Why should CPR be considered as the default position for all patients of all ages in all states of health? 

Another day, another depressing story

Another day, another depressing story

Another story of a tragic death of a young person was aired on the midland news today. It involves Amy Carter, who was admitted to Worcester Royal Infirmary and discharged with a diagnosis of glandular fever. She returned to the hospital in multiple organ failure due to bacterial sepsis, and died shortly after. The trust accepted out of court, without accepting liability - in fact they issued a statement that "At all stages of her hospital stay, Amy received appropriate care".

http://www.bbc.co.uk/news/uk-england-hereford-worcester-28020357

Amy's parents appeared on television expressing their outrage. They were angry that the hospital has not apologised. They also felt that an internal review was inappropriate.Her father said:
"You want somebody who’s outside, who’s got nothing to do with the NHS or the trust or anything like that, somebody totally independent, to make them suffer and have to feel like we do now, for the rest of our lives. Somebody needs to pay for what they’ve done, and I don’t mean monetary, I mean pay emotionally and physically, the way we  [have]."
Perhaps understandable in the circumstances, although it is not the reaction I would have. No one set out to harm their daughter. No one deserves to be hurt for simply doing their job to the best of their ability. 

I have commented elsewhere about the failure of the tort system to provide satisfactory resolution for victims and relatives of medical negligence. We don't know that there was negligent care here. This is one of the problems with out-of-court settlements. Of course the Carters didn't have to accept an out-of-court settlement. Certainly if their main aim is to get at the truth, then going to court would be much preferable. Sadly the system does not accommodate this. It may well be that the hospital has nothing to apologise for. Medicine is full of uncertainty. It has been known for a patient to drop dead in the corridor after being pronounced fit in the cardiology clinic. 

The saddest aspect of this saga for me is the desire for retribution expressed quite clearly by Amy's father. It is a scenario that occurs with monotonous frequency. Can this bitterness be reduced by a different way of approaching these cases? Not in all cases I suspect. We need to recognize and understand this.