Monday, 13 April 2015

“The Medium is the Message” – or how we are sur reptitiously persuaded to take sides. – Tim Veater

  “The Medium is the Message” – or how we are surreptitiously persuaded to take sides. – Tim Veater

“The Medium is the Message” – or how we are surreptitiously persuaded to take
sides.

“The medium is the message” is a phrase coined by Marshall McLuhan meaning that
the form of a medium embeds itself in the message, creating a symbiotic
relationship by which the medium influences how the message is perceived.”
(Wikipedia)

As humans, we are deluged with messages, conveyed in a multiplicity of mediums,
by a plethora of sources – the unashamed purpose of which is to influence our
attitudes and actions. The most obvious is the world of advertising when it is
used to persuade people to exchange money for physical objects or services.
Advertising is everywhere and presumably effective or the work of publicity
agencies would not be so lucrative, nor indeed the exercise worth the
expenditure on it, invariably a major part of company overheads, deftly
represented in the recent popular TV series “Mad Men”.

However it is also employed by government to win public support for policies and
actions across the board. We have considered the the topic of “nudging” the
“Behavioural Insights Team” (11) previously here. The term highlights the use of
social theory and advertising techniques by government to persuade us to conform
to identified behavioural objectives including the passive (avoidance of
protest) and active (periodic voting, activism and financial contribution) to
maintain policies and the people who implement them – even if they run counter
to the real interests of the population.

McLuhan compared modern man to Edgar Alan Poe’s sailor, fighting not to be
sucked into the watery vortex by utilising his knowledge of the currents. In a
similar way we need to be acutely aware of the hidden agendas that determine
policy, and the decisions made on the back of them, in the political sphere.
Needless to say it is a given that the population is most at risk when it is
most unaware of how it is being conditioned. In McLuhan’s own words:

“The medium is the message, because media creates its own environments, which
are beneficial to some messages whilst being hostile to others. Just as
sodium-vapour light mutes all colours to an orangey-grey and ultra-violet light
makes white and some colours glow eerily, so different media amplify and repress
their content. If some people lived in a world constantly illuminated by sodium
vapour light, they would have very different perceptions of reality compared
with people who lived in a world illuminated only by ultra-violet light,
although the people of both worlds would be unaware of any distortion in their
vision.”

It is perhaps worth noting that wars and conflicts would not be possible were it
not for opposing viewpoints, often inculcated or encouraged by political and
religious masters. It is why totalitarian regimes are so fearful of free
expression and western governments, it seems, so keen on monitoring it.
Democracies may have a harder time of keeping their populations on-side. They
have to work harder to do so and be more subtle and sophisticated in
methodology.

We like to think they are stronger and more just and honest because of it. The
uncomfortable reality may be that  all government is intrinsically wary of the
truth as it relates to past and present action, because all have something to
hide and be ashamed of. Some by virtue of their history may be more sensitive
than others. Particularly in a highly competitive and dangerous world, “national
interests” have to be protected by controlling the message directly and
indirectly by, amongst other things, manipulating the medium, a task that is
becoming increasingly difficult in the age of the internet. The message has
become more divergent and unruly; the medium more interactive and democratic.
The national barriers to opinion are harder to maintain when the technology
hardly recognises them.

Western democratic governments require a semblance of public support for what
they do. It is seldom unanimous or uniform. Only in the military can be
guaranteed. In Britain we have developed  political parties that are intended to
channel opinion at large and to represent all interests even if in many respects
these may be in conflict.

The trouble is the theory is currently subject to serious defect. First the
despite an ever increasing population and electorate, fewer bother to vote,
presumably indicating serious disillusionment with politics and politicians, or
because none of the alternatives are attractive. The younger the cohort the
worse it gets, which does not bode well for the future unless thing change for
the better.

Second the political elite are viewed either accurately or not, as remote and
corrupt. This may have been overdone and we should not ignore the agenda of
those who wish to undermine our constitution and system, however imperfect.
Third, the activities of government are perceived to have caused major issues of
national financial crisis, decline in public services and decimation of our
manufacturing base. The continuing process of “privatising” commonly owned,
government operated activities, may provide short-term receipts but few will be
deceived by a process that requires the same level of tax for ever depleted
services, excessive remuneration for the few and evermore expensive cost of the
privatised services.

Fourth, both at local and national level the individual citizen has seen a
leaching of functions to ever larger more distant and unaccountable
institutions, carried out by sleight of hand whilst alleging the exact opposite.
It has fuelled the move to independence and a disintegration of the state and
its powers. We have witnessed, and are witnessing, at both local and national
government level, an emasculation of function and capability. Even the
administration of  justice, probation, incarceration, police and defence are in
line for the private model to join education, social services and all the
privatised utilities. Is it any cheaper or more efficient? Are we paying lower
bills or less tax as a result?

Meanwhile the state, has been denuded of real estate and assets – the “family
silver” as Harold Macmillan famously put it. Even government offices in
Whitehall are no longer owned by the government! The effect must be that
government becomes an empty shell unable to support its economic viability. In
monetary terms the state is already insolvent, with ever fewer assets to sell
off. Oil income, the saviour of Margaret Thatcher’s government, may no longer be
available. UK independence is thereby seriously compromised. It is in hock to
those who hold the financial purse strings and it knows it. It is dependency on
the approval of twenty  seven other European nations. It is why government is
now a shadow of what it once was, unable to tell the population the truth about
its bankruptcy and of its straight-jacketed impotence.

Finally the electorate is disillusioned by government interference in areas of
private life that is resented by the majority – a combination of political
correctness, and heavy handed authoritativeness. An indifference to deeply held
majority opinion. A failure to protect the interests of the indigenous
Anglicised nation from uncontrolled immigration from without that threatens
stability and social cohesion, signs of a police state from within. Government
has blindly crossed an important line, on the one hand giving away too much of
its sovereignty to intra-national bodies, whilst on the other hand interfering
too much in areas of private decision making. More than a million people are
criminalised every year and this is only the tip of the iceberg of state
interference with the individual and a lawful, peaceable existence. Undoubtedly
many of those cases are justified but many are not. To what extent is the state
justified in criminalising someone for harming or endangering
only themselves, a classic example of which is the driver of a motor vehicle
not wearing a seat belt? We appear to have become and created an over-populated,
congested and over criminalised and fearful nation.

Have I strayed from my theme of “medium being the message”? If so I apologise
and return to it with just one example from last Friday’s London Times. Two
stories on page 36 of Friday 16th May 2014 edition. “Naval conflict looms as
mobs kill Chinese” relating in about ten column inches and large case the
increasing tensions in the south China Seas. (1)

(In passing, have you noticed how this is becoming ever more unstable since
America announced an increased military build up in the area? Or was their
increased build-up a response to the increased tension? North/South Korea;
Japan/China; now Vietnam/ China? Are the catastrophic incidents of the Sewol
ferry and MH 370 unrelated to the international power struggle and danger of
confrontation.   Both Australia (3) and Britain (4) have made big orders of
stealth fighter/bombers from the United States, both piloted and drone. (5) not
without their technical problems. (6) “The clock is ticking” for Iran says the
US Vice President. (7) Now the US has targeted numerous Chinese for cyber
espionage – clearly not intended to placate the adversary. We might be excused
the belief there was intentional escalation by the US here. What is the bigger
picture, the hidden policy objective?

In the Times article the Vietnamese are painted as aggressors. The Japanese are
reported to be set to end pacifism on the same page. (2) Then what’s this? In a
header over one column inch we are informed “Israel police shoot two”. We learn
two Palestinian young men of 17 and 20 were shot dead whilst demonstrating in
the West Bank on the 66th anniversary of the “Nakba” or “catastrophe” of the
Jewish State’s creation. (8) (This is the much more prominent Guardian report as
the Times is behind a pay wall)

So contrast the headlines again “MOBS KILL Chinese” with “Israel Police SHOOT
two” and relative prominence given to the stories and you have a not too subtle
demonstration of the aphorism “The Medium is the Message”. The
Vietnamise/Chinese dispute is played up, the Israeli/Palestinian played down.
The injustice experienced by both parties down-played. China and Israel thus
presented as the injured party. We need not dwell on the sympathies of News
International, the parent company of the Times, nor its financial links to those
two countries.

This remember was page 36. Page 1 headlines on the same day were “Climate Change
Cover-up” read “help support the petro-chemical industry” ; “UKIP gave jobs to
illegal immigrants”, read “do anything to stop the UKIP danger to Conservative
re-election plans”; Prince Philip smiling whilst at the reins of four-horse
carriage read “maintain the existing  power hierarchy”?

This is but one small illustration of McLuhan’s dictum. The message may be
slanted to produce a positive or negative reaction; to play up or play down an
issue. At least it is fairly obvious. The “medium” is far more subtle and
therefore harder to identify and ultimately more powerful and potentially
dangerous. Take for example the recent story of the “Eleven” meeting to discuss
Syria. The Foreign and Commonwealth Office press release is here (9) the earlier
French Government’s here (10). What are the messages we get through the medium?
Do I need to relate them?

Well first note the smiles, the friendliness between so many. Could so many be
wrong? Could such elegant individuals ever suggest anything sinister or
dangerous? Not a military uniform amongst them. Read this is a meeting of
civilians devoid of any violent intent.Note the opulent physical environment
which oozes power and status. We are all awed by gold furnishings.

Perhaps to hammer home the point, what would be the impact if the eleven
representatives were in blood splattered fatigues, in the middle of a bombed out
building? Would we read the message in quite the same way? These by virtue of
the sub-conscious “medium” messages are peace loving, reliable, credible
individuals, who’s only interest is the welfare of the Syrian people. People
that can be trusted and who’s decisions should be supported and applauded. Would
that it was so!END.







4.  http://www.bbc.co.uk/news/uk-18919388  “UK receives first F-35 stealth
fighter jet from US”

“The Taranis begins air trials within weeks over the Australian Outback.”











Events in Indo/China, Libya, Nigeria. Are they perchance related? – Tim Veater

 Events in Indo/China, Libya, Nigeria. Are they perchance related? – Tim Veater

Events in Indo/China, Libya, Nigeria. Are they perchance related? Tim Veater.

Now since writing the piece on message and media,  I started to think about in
addition to America’s involvement in Iran (“the clock is ticking”), Syria –
another meeting of the “eleven friends”, Ukraine where direct CIA and military
“advice” has been admitted, and Egypt where the military with American backing
are now firmly in control, we have four more high profile international
developments from which we maybe discern a pattern:

1.  CHINA.  “Chinese military officials charged with stealing US data as
tensions escalate. Eric Holder says the case ‘demands an aggressive response’
but Beijing calls allegations ‘extremely ridiculous’. The US Justice Department
has indicted five Chinese military officers with stealing data from six US
companies and unions on Monday, inaugurating a major escalation of tensions with
China over economic spycraft. “(1)

Note not only the “message” but also the “medium”. The US has rejected
diplomatic channels. The language is confrontational. The venue very public,
designed to make as big a “splash” as possible. The decision to name and
photograph employees of the Chinese military is a direct challenge and
humiliation to its government. The “Wanted” poster is immediately reminiscent of
the “9/11 hijackers” and George Bush’s comment “Wanted dead or alive” and we
know where that led.  The announcement was made by the Attorney General Eric
Holder, giving it a semblance of independence and respectability. In the light
of what we now know about 9/11 and NSA/CIA cyber monitoring via Snowden, it is
hard not to view the US position other than a cynical and hypocritical intended
to raise tensions with China.

Nor should this event be seen in isolation from the disputes that have recently
flared up with Japan and Vietnam over territory and resources, nor the still
unresolved mystery of the loss of MH 370.

Why are all these issues coming together at this time? Are they just
coincidental or part of a strategic global plan? Is it a clash of ideals or just
the outward manifestation of long developing realisation of super power politics
and the need to secure limited natural resources? The unequal balance of trade
between the US and China and the huge dependence of the former to maintain its
currency and economy cannot be unrelated to what is happening surely? We have to
ask what advantage is it to the US to cause a deterioration of relations with
its main lifeline? It runs completely counter to its stated foreign policy
position since Nixon.

2.  THAILAND.  “Thailand’s army has declared martial law “to keep law and order”
after six months of violent unrest and anti-government demonstrations and one
day after the country’s caretaker prime minister refused to step down. Three
people were killed in explosions and a shooting attack against anti-government
demonstrators last Wednesday as the country’s electoral commission called for a
July election rerun to be postponed. The deaths raised the nationwide toll since
protests began last November to 27 dead and 800 wounded.”

“A senior US defence official told the Associated Press news agency last week
that the US was “reasonably confident” that Thailand’s military would not launch
a coup, although analysts have warned the nation’s political crisis could
trigger armed conflict. ” (2)

US involvement in Indo/China since the Second World War is notorious for its
savagery and deceit. As usual whilst professing support for democracy and
“freedom”, it has tended to back corrupt and dictatorial regimes that represent
a wealthy and influential elite. The current coup is a re-run of this familiar
pattern and given US history in the region, it is beyond belief that it is not
involved and supportive of the military takeover whilst publicly claiming the
opposite.

“Government corruption is not just a problem in Thailand, it is a way of  life.
Like every bureaucracy, the Thai government has elaborate organizational  charts
marking out neatly delineated areas of authority. To the  uninformed  observer
it seems to function much like any other meritocracy, with  university graduates
occupying government posts, careers advancing step  by  step, and proposals
moving up and down the hierarchy in a more or less  orderly fashion. But all of
these these charts and procedures were (and  are)  a façade, behind which
operate powerful military cliques whose driving  ambition is to expropriate
enough money, power, and patronage to become  a  government within the
government. These cliques are not ideological  factions,  coteries of plotters
united by greed and ambition.” (3)

3.  LIBYA.  “Fears of a confrontation between rival groups mounted when the
commander of the Tobruk air base announced he was putting it under the command
of Khalifa Hiftar, a US-linked figure said to have been behind an attack on the
parliament in Tripoli during weekend fighting which left about 80 people dead
and 160 injured.”

“Gunmen first stormed then suspended Libya’s parliament on Sunday in an
anti-government rebellion that is spreading across the country.”

“Most of the casualties were in Benghazi, Libya’s second city, where Hiftar’s
men attacked Ansar al-Sharia, a fundamentalist organisation that has been
designated by the US as a terrorist group.”

“The former general, who defected to the US in the 1980s, took part in the
Nato-backed uprising against former president Muammar Gaddafi in 2011, but says
the congress (parliament) in Tripoli lacks legitimacy. He has insisted he is not
trying overthrow the government but to fight terrorists.” (4)

Who could disagree that here we see a sequel to the Libyan “revolution”,
engineered, aided and abetted by western nations on a pretext of humanitarian
protection, being played out.  Khalifa Hiftarby is clearly a CIA asset working
under American direction to gain control over valuable oil assets in
particularly the eastern part of the country. For cover, the now threadbare
excuse of “fighting terrorists”. Does anyone believe that nonsense any longer?
This is about American hegemony in the world, and particularly the control of
oil.

Again from the Guardian article: “Hiftar sits at the head of a loose coalition
of tribal and army forces united by little more than opposition to the
Islamist-led congress. He enjoys solid support in the eastern province of
Cyrenaica and in the west, both crucial because these are the oil-producing
areas that have mounted a 10-month oil blockade that has strangled state
finances.”

“”When Gaddafi fell, the different militias did not share a vision of how the
country should evolve,” Prof Youcef Bouandel of Qatar Univeristy told Al-Jazeera
TV. “All the signs are that it is a failed state. The signs are that the
violence is going to continue.”

Catherine Ashton, the EU’s foreign policy chief, expressed concern about the
“continuing deterioration” and the European Council for Foreign Relations
warned: “With reliance on Russian energy supplies now in question across Europe,
the EU cannot afford to have a failed state crucial to energy security and to
stemming illegal trafficking 350 km south of Malta and Lampedusa.”

So you see “the EU cannot afford to…” Having helped to create a failed state,
how disingenuous is that of “Lady Ashton” and what does her statement portend –
further military involvement?

4.  NIGERIA.  “Nigerian president faces increasing pressure over kidnapped
schoolgirls. Calls for Goodluck Jonathan to stand down over a perceived failure
to react quickly to Boko Haram’s mass abduction. Activists from the
#BringBackOurGirls group said they will present a “charter of demands” to the
president, including calls for a more effective presence in militant strongholds
and greater engagement with the community of Chibok, where the girls were
abducted by Islamic militants more than a month ago. ”

” A march planned for Thursday, risks provoking a harsh response from the
security forces. Last week police in Abuja moved in to disrupt a rally and
disperse protesters who were shouting, “Bring back out girls now and alive!” (5)

So we have a repeat of the expected elements. Radical Islam. Violence and a
shocking event to western sensibilities, this time the abduction of girls from a
Catholic schools. Calls by western leaders, even the US Presidents wife that we
“must do something”. Britain and America deploy “advisers” and spy planes.
Public agitation and unrest widely publicised leading to calls for either a
tyrant or incompetent or corrupt leader to be replaced. Heavy handed government
response to protests leads to shooting and deaths which in turn leads to a
spiral of public disorder and riots leading to effective foreign takeover and
large scale military involvement strictly for humanitarian and anti-terrorist
purposes. Oh and not forgetting OIL. Countries can be as corrupt, violent and
chaotic as they like, but if they have oil our consciences are suddenly pricked
and the case for intervention becomes overwhelming. Strange isn’t it?

Another strange co-incidence is the fact that this latest terrorist outfit “Boko
Haram” (6) has become increasingly violent but no-one seems to pose the question
where it is getting its arms and financial support from and no one appears
interested in finding it out. There is no doubt that the violence is increasing.
What is not so clear is who is ultimately behind it. One thing is apparent, it
is led by a  man called Abubakar_Shekau   who is reported to be an extreme
Muslim and has been put on America’s most wanted list.(7)

However rather strangely other authoritative sources state he is not even a
Muslin which is enough to make the ALARM BELLS RING.(8) He can be viewed here
(9) Rather surprisingly he is obviously quite fluent in English. There are
obvious similarities with the tirade from from the Woolwich killer Michael
Adebolajo with whom he shares certain commonalities(10) This is in direct
contradiction of a recent CNN report as follows: ” He’s a polyglot
He speaks several languages fluently: Hausa, Fulani, Kanuri and Arabic. But
English isn’t one of them. After all, he heads a group that rejects all things
Western.”

It adds: “Analysts describe Shekau as a loner and a master of disguise. He does
not speak directly with members, opting to communicate through a few select
confidants. He uses many aliases: Abu Bakr Skikwa, Imam Abu Bakr Shiku and Abu
Muhammad Abu Bakr Bin Muhammad Al Shakwi Al Muslimi Bishku among them.” (12)

Further alarm bells ring in response to this BBC report: “”He hardly talks, he
is fearless,” says Ahmed Salkida, a journalist with such good access to Boko
Haram that, at one stage, he was suspected of being a member. He says he only
escaped summary execution by police in Maiduguri after an intelligence officer
intervened.” (11)

Now why would an intelligence officer – it does not reveal of what nationality –
save and presumably release him after his boss, Muhammad Yusuf, died in police
custody in July 2009? Shekau was once said to have been killed by security
forces in 2009 – only for him to reappear in videos posted on the internet less
than a year later as Boko Haram’s new leader.

Questions arise in my head. Is it the same man or was he replaced by a stooge of
western agencies. History tells us this is not as far fetched as it might seem.

That he is now a loose canon and a sadistic murderer seems to be generally
agreed. Whether he is who he says he is and ultimately operating at the behest
of those he describes, is far less certain given the murky ground on which we
tread.

CONCLUSION

The case is made: America and the European block, with a little help from the
Israelis, have engineered unrest and chaos throughout north Africa and the
Middle East, replacing unhelpful tyrants with helpful ones. On a strategic level
it appears to have been successful. On a human, economic and social level for
the countries involved, it has been an utter disaster. The same game plan has
and is being extended to Syria and the Ukraine it would seem, with Iran,  and
now Nigeria and Indo-China in the pipe-line. Are the electorates of our
countries being advised of the strategy or its dangers? I think not. Perhaps
they should be. END.

Friday, 10 April 2015

'IN TERROREM' EXPOSED

“If these labouring people were to be kept under control, it was wise to give the judges independence and discretion.The crime of larceny furnishes an explicit example. Economically it made no sense to hang large numbers of 'lesser men'. It was sound policy to let them fear they might be hanged. Judgements for death came down in Maryland and Virginia, but they were very much the exception to the usual sentences of whipping. A criminal law operated by judges in terrorem among the labouring people.” 
'Criminal Justice in Colonial America, 1606-1660' By Bradley Chapin

I have posted the reference to a 1984 High Court decision on a couple of You Tube UK Column presentations, as I thought it might be useful to Robert Green and possibly others. You might also like to put it up on your site for general information. Perhaps I should add I have not researched the the topic in any greater detail than the case shown and so it is possible later cases may have refined, extended or distinguished it.

With surely thousands of others, I was shocked by the way in which Robert Green was treated by the Scottish political and legal establishment. He was arrested in England, imprisoned in Scotland, made subject to lengthy house arrest and onerous conditions impacting on his freedom of movement and expression, and eventually a permanent restriction, we are told, to open his mouth on the subject ever again, on pain of imprisonment! This appears to break every rule of fair play and justifiable sentencing policy in a democratic society and is a very ominous sign of things to come unless the people of the UK show unequivocally it is unacceptable.

Its purpose was clearly to silence Robert by a series of vindictive and draconian measures, to pursue what appears to be a just and worthy cause and intimidating anyone else brave enough to take it up in his place. Presumably this was to cover up a totally inadequate police investigation of allegations of serious abuse held to be genuine by the Criminal Injuries Board and to protect those she had named who happened to be in the higher echelons of the politico/legal establishment. Could a more pernicious or disreputable situation be imagined, more akin to a Stalinist state, than to a modern British democracy? The fact that the circumstances and treatment of the Hampstead children so closely replicates that of Holly Grieg, give those of us living south of the border no reason to gloat. The police and court systems, both north and south, appear equally more interested in closing down allegations, than properly investigating them.

These decisions breach common law protections not only of the individual's basic right to lawfully speak and associate freely, latterly reinforced by Britain adopting the European Convention of Human Rights into British law, but also appears to criminalise the just to protect the criminal. Could there be a greater subversion of justice? The fact that Government has not stepped in, shows clearly where it stands on the subject.The fact that in practice, the Scottish Courts and Government feel unconstrained by any established principle of justice or law, must have very serious implications for all and any of us, particularly when the present Prime Minister on an international platform, states he intends to criminalise as a 'terrorist' anyone who dares to question the official government narrative on any subject including the organised abuse of children. 'In terrorem' indeed!


The following case might have useful application to the Robert Green case and possibly 

others, particularly as it relates to the power of British courts to impose onerous conditions

 as part of a sentence. In the case of R v Central Criminal Court, ex parte Boulding 

(QUEEN'S BENCH DIVISION [1984] 1 QB 813, [1984] 1 All ER 766, [1984]), that makes

 reference to many other relevant decisions, the binding judicial precedent or 'ratio 

decidendi'' was as follows:

"Where the Crown Court intended to impose a binding-over order on a convicted defendant requiring him to enter into a recognisance in a substantial sum, natural justice required the court to give the defendant or his legal representative an opportunity to make representations against the imposition of such an order, and also required the court to inquire into the defendant's means before imposing such an order. That was so irrespective of the seriousness of the defendant's conduct and the possibility of repetition of the conduct. Furthermore, a binding-over order ought not to be in such terms that it acted 'in terrorem' of the defendant by, for example, effectively inhibiting his right to free speech within the law." (Ref. 1)

I realise that Scots are (or were) proud of their independent system of law and justice and that the relationship between English (indeed European!) and Scottish courts is very complicated within the UK; and that decisions in the English courts are not necessarily binding in Scottish ones, though they are surely persuasive; and that routes to the UK's new Supreme Court, always including at least two eminent Scottish jurists for that purpose are not always obvious or clear-cut; but the treatment of Robert Green is so outrageous that it surely demands an appeal to higher authority either in Scotland, England or Strasbourg? If it doesn't, it bodes very badly for us all and of any suggestion that Britain still champions freedom or justice.

Ref. 1 - The full judgement is here:

http://www.hrcr.org/safrica/education/R_CentralCriminalCourt.htm. 


R v Central Criminal Court, ex parte Boulding

QUEEN'S BENCH DIVISION 

[1984] 1 QB 813, [1984] 1 All ER 766, [1984] 2 WLR 321, 79 Cr App Rep 100, 5 Cr App R (S) 433, 148 JP 174 

HEARING-DATES: 12 DECEMBER 1983 

12 December 1983 

CATCHWORDS: 
Crown Court -- Binding over -- Powers of court -- Terms of order -- Opportunity to make representations against order -- Severity of order --
Court binding over convicted defendant for two years on terms that he entered into recognisance in substantial sum -- Court not giving
defendant's counsel opportunity to make representations against order -- Whether natural justice requiring court to give defendant or his
counsel opportunity to make representations against order -- Whether order invalid as being in terrorem. 



HEADNOTE: 
The applicant, who held strong views on the manufacture of furs, was convicted by a magistrates' court of using insulting words and behaviour
outside the premises of a fur-manufacturing company. The magistrates fined the applicant �10 and ordered him to pay the costs of the
hearing. The applicant appealed against the conviction to the Crown Court, which, on rehearing the case, convicted the applicant and, in
addition to upholding the magistrates' fine of �10 and the order for costs, imposed an order binding over the applicant for two years to keep the
peace and be of good behaviour on terms that he entered into a recognisance in the sum of �500 with the alternative of three months'
imprisonment. The order was imposed with the applicant's consent but without any enquiry into his means and without giving his counsel an
opportunity to make representations against it. The applicant applied for an order of certiorari to quash the binding-over order on the ground
that it was made in excess of the court's jurisdiction, was unduly harsh and oppressive, and was contrary to the rules of natural justice
because the applicant's counsel had not been given an opportunity to make representations before the order was imposed. 

Held -- Where the Crown Court intended to impose a binding-over order on a convicted defendant requiring him to enter into a recognisance in
a substantial sum, natural justice required the court to give the defendant or his legal representative an opportunity to make representations
against the imposition of such an order, and also required the court to inquire into the defendant's means before imposing such an order. That
was so irrespective of the seriousness of the defendant's conduct and the possibility of repetition of the conduct. Furthermore, a binding-over
order ought not to be in such terms that it acted in terrorem of the defendant by, for example, effectively inhibiting his right to free speech
within the law. Since the Crown Court had not given the applicant's counsel an opportunity to make representations and had not inquired into
the applicant's means before imposing the binding-over order, the court had acted in breach of the rules of natural justice and certiorari would
be ordered to quash the order (see p 769 d to j, post). 
Dictum of Lord Widgery CJ in R v Woking Justices, ex p Gossage [1973] 2 All ER at 623 considered. 

NOTES: 
For recognisances to keep the peace, see 11 Halsbury's Laws (4th edn) paras 521--522. 

CASES-REF-TO: 

R v Woking Justices, ex p Gossage [1973] 2 All ER 621, [1973] QB 448, [1973] 2 WLR 529, DC. 
Sheldon v Bromfield Justices [1964] 2 All ER 131, [1964] 2 QB 573, [1964] 2 WLR 1066, DC.ct021Cases also cited 
Lansbury v Riley [1914] 3 KB 229, [1911--13] All ER Rep 1059, DC. 
Metropolitan Properties Co (FGC) Ltd v Lannon [1968] 3 All ER 304, [1969] 1 QB 577, CA. 
R v Crown Court at St Albans, ex p Cinnamond [1981] 1 All ER 802, [1981] QB 480, DC. 
R v Sharp, R v Johnson [1957] 1 All ER 577, [1957] 1 QB 522, CCA. 
Veater v G [1981] 2 All ER 304, [1981] 1 WLR 567, DC. 

INTRODUCTION: 
Application for judicial review 

Stephen Boulding applied, with leave of Mann J granted on 3 May 1983, for an order of certiorari to bring up and quash the order made by his
Honour Judge Buzzard and two magistrates at the Central Criminal Court on 19 January 1983 binding the applicant over for two years to keep
the peace in the sum of �500. The facts are set out in the judgment of Watkins LJ. 

COUNSEL: 
Ann Wallace for the applicant. 

John Laws for the respondent. 

PANEL: WATKINS LJ AND TAYLOR J 

JUDGMENTBY-1: WATKINS LJ 

JUDGMENT-1: 
WATKINS LJ. Stephen Boulding is a bus driver employed by London Transport. He is a married man of 34 years of age. He moves for judicial
review of an order of binding over imposed on him at the Central Criminal Court. 
The circumstances which brought him to that situation were that at the Mansion House, before the City magistrates, he was convicted of
using insulting words and behaviour contrary to s 35(13) of the City of London Police Act 1839, as amended. He was thereupon fined the sum
of �10 and ordered to pay the costs of the hearing. From that conviction he appealed to the Crown Court. On 19 January 1983 he faced his
Honour Judge Buzzard and two magistrates, who conducted (as is usual on an appeal from magistrates) a rehearing of the case. 
The applicant is a man with very strong views about the manufacture of furs. He makes those views plain to those who are engaged in that
commercial enterprise. On 16 July 1982 he was doing that when police officers felt it necessary to take him into custody. 
The evidence which the police officers gave to the magistrates and subsequently to the Central Criminal Court can be summarised in this
way. The applicant went to the premises of the Hudson's Bay fur company and shouted at persons employed there: 'Murderers fur trade
out.' He made threats. He stated that their trade was 'evil', and that they should not be in the fur trade. As a result of that manifestation of
his views, a large crowd assembled, most of whom were engaged in the fur trade and who had become very angry at what he was
saying. They jeered at him. Some raised their fists. He was asked to be quiet by the police officers. He refused and said: 'You've got no right
you're the bastard who'll end up in court.' 
When the applicant was in the police car, being taken to the police station, he became very excited and said to the police officers: 'We have
only just started, sunshine there's 20 more like me.' They told him to calm down, but his only response to that was: 'You're as bad as those
murderers: you support them.' 
In giving evidence on his own behalf, he admitted that he had used the word 'murderers' to two employees of the Hudson's Bay company. He
admitted that he used a megaphone in order to make his views more widely known. 
He was again convicted at the Central Criminal Court where the judge took a rather more severe view than the magistrates at the Mansion
House of his conduct. He and the magistrates sitting with him not only kept in being the fine imposed by the City magistrates and the order for
costs made below, but ordered him to pay the costs of the appeal and in addition, without inviting any comment whatsoever beforehand from
counsel who was, on that occasion, appearing for the applicant, they bound him over for two years to keep the peace and be of good
behaviour, and ordered him to enter into a recognisance in the sum of �500, with the alternative of three months' imprisonment. 
The applicant, on being asked to do so, consented to being bound over. Whether he consented to that in respect of all those terms, or
merely to being bound over, the material before us does not reveal. But I am prepared to assume that he was fully appraised of the terms
before he gave his consent. At all events, he signed the necessary recognisance after being bound over and before leaving the court. 
The grounds in support of the motion for judicial review relate exclusively to the binding-over order. They are contained in a document the
contents of which I summarise as follows. It is contended that the binding-over order was in excess of the court's jurisdiction. Alternatively it
was unduly harsh and oppressive. It was in any event, it is said, an abuse of the process of the court and, therefore, an invalid order. It is
further said that the rules of natural justice were not obeyed, seeing that it was made without providing an opportunity for representations to
be made against the imposition of it on the applicant's behalf. Finally, it is contended by counsel for the applicant that there was an
appearance of bias in the manner in which the order was imposed. 
Counsel for the applicant derives support for that last contention from words used by the judge when he said: 

'Democracy is a delicate plant which has flowered with difficulty at different times and places in the history of mankind. Civilisation can exist
without democracy and has done for most of recorded history, but it cannot exist without the rule of law. Some minorities believe that they
have a divine right to use lawful and unlawful means to impose what they believe is right. In that respect they are no different from the
adherents of Hitler. We are here to see that the law is obeyed whatever the motives of those who disobey it.' 

It is convenient, I think, to dispose of that contention by expressing my view of it at this stage. The judge may have been wiser and spoken a
little more temperately if he had avoided any reference to Hitler. But that apart, I can see nothing whatsoever objectionable in what he said. I
cannot think that any right-thinking person, sitting in court, listening to the judge, could sensibly have come to the conclusion that he was in
any way biased against the applicant. 
At the heart, as I see it, of the motion to review the decision to bind over the applicant, is this. It is wrong, so it is submitted, for the court
to bind over a person, albeit he is a convicted person, without first of all giving him an opportunity to make representations about the intention
of the court to make such an order. Furthermore, it is wrong for no opportunity to be given to a defendant, or to the person representing him,
to make submissions as to the size of the recognisance which the court is minded to cause the defendant to enter into. This is in relation not
only to the size of the recognisance in financial terms, but also to the length of the term of imprisonment declared. 
In this connection we have been referred to what was said by Lord Widgery CJ in R v Woking Justices, ex p Gossage [1973] 2 All ER 621,
[1973] QB 448. That was a case in which an applicant was bound over to keep the peace for 24 months in his own recognisance of �100. It is
unnecessary to say anything about the facts. I turn immediately to the concluding observations of Lord Widgery CJ ( [1973] 2 All ER 621 at
623, [1973] QB 448 at 451): 

'I think from the extracts from Lord Parker CJ's judgment [in Sheldon v Bromfield Justices[1964] 2 All ER 131 at 133, 134, [1964] 2 QB 573 at
577, 578] that I have read, Lord Parker CJ would have taken the same view but, be that as it may, it seems to me to be putting it far too high
in the case of an acquitted defendant to say that it is a breach of the rules of natural justice not to give him an indication of the prospective
binding-over before the binding-over is imposed. That is not to say that it would not be wise, and indeed courteous in these cases for justices
to give such a warning there certainly would be absolutely no harm in a case like the present if the justices, returning to court, had announced
they were going to acquit, but had immediately said ''We are however contemplating a binding-over what have you got to say?'' I think it would
be at least courteous and perhaps wise that that should be done, but I am unable to elevate the principle to the height at which it can be said
that a failure to give such a warning is a breach of the rules of natural justice.' 

It must be noted that Lord Widgery CJ was there referring to a situation in which it was proposed to bind over an acquitted defendant. Counsel
for the respondent, for whose valuable submissions I wish to express gratitude, contends that, in the case of a convicted defendant, the
observations of Lord Widgery CJ would have very much greater force and thus bind this court. 
I appreciate, of course, that Lord Widgery CJ firmly declined to acknowledge that a failure by a court to give a defendant an opportunity to be
heard prior to the making of a binding-over order constituted a breach of the rules of natural justice. But I do not regard him as having said
that there are no circumstances in which a part of a binding-over order can be said to be so severe that the court is bound in justice, before
imposing that part of the order on a defendant, to give him the opportunity to make representations about that part. 
The present case is a very good example, so it seems to me, of a case in which a defendant's means and other personal circumstances should
have been inquired into and representations allowed in respect of them. Without such an inquiry and further assistance from him, or his
counsel, I cannot see how the court could alight on a proper, just and suitable sum of recognisance. The question is therefore not whether
there was a failure to act with due caution and to be sensitive to the need to allow the defendant to be heard but whether that failure amounts
to a breach of the rules of natural justice. 
In my judgment it does. It is one thing to impose a small or trivial sum of money as a recognisance without inquiring and so on it is quite
another to impose, without inquiring into the means of a defendant, a relatively large sum. To impose such a sum might work a very great
injustice on a defendant, no matter how serious the conduct which has brought about his conviction is regarded and the possibility of his
repeating that conduct in the future. A binding over must not be in such terms contemplated as effectively to inhibit a convicted person from
exercising his right to free speech within the law. In other words it must not appear to be in terrorem. 
This court has been given information which the court below had not, namely information about the means of the applicant. He was, and very
likely still is, a bus driver. At that time, he earned �140 gross per week. His wife was working, earning �130 gross per week, but she either has
or is soon to give up work because of pregnancy. They had between them �400 in savings. If those facts had been known to the court below,
I question very seriously whether it would have imposed so high a figure as �500 as the recognisance that the applicant was called on to enter
into. 
In my judgment, although a court may say, without giving a defendant the opportunity to be heard on the matter: 'We intend to bind you
over' what it may not do, unless it is going to impose as a recognisance a trivial sum, is to impose a sum which is markedly larger than that in
comparative terms without looking at the means of the defendant and giving him, or his counsel or solicitor, an opportunity for making
representations. 
In that respect, I think the rules of natural justice do demand that the court conducts itself as I have indicated. Since the court here did not
do that, I would allow this application and quash the order. 

JUDGMENTBY-2: TAYLOR J 

JUDGMENT-2: 
TAYLOR J. I agree. 

DISPOSITION: 
Application granted. Binding-over order quashed. 

SOLICITORS: 
Mackenzie Patten & Co, Southall (for the applicant); Treasury Solicitor.


 END