We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.
Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]
|
Britain’s hollowed out legal system Anyone else find this deeply creepy?
Senior bankers could face up to seven years in prison under new rules revealed by the Financial Conduct Authority (FCA) today. Following a series of scandals such as Libor and Forex, the financial watchdog has changed the legal requirement for punishment from “innocent until proven guilty” to “presumption of responsibility”.
So you are guilty until proven innocent?
|
Who Are We? The Samizdata people are a bunch of sinister and heavily armed globalist illuminati who seek to infect the entire world with the values of personal liberty and several property. Amongst our many crimes is a sense of humour and the intermittent use of British spelling.
We are also a varied group made up of social individualists, classical liberals, whigs, libertarians, extropians, futurists, ‘Porcupines’, Karl Popper fetishists, recovering neo-conservatives, crazed Ayn Rand worshipers, over-caffeinated Virginia Postrel devotees, witty Frédéric Bastiat wannabes, cypherpunks, minarchists, kritarchists and wild-eyed anarcho-capitalists from Britain, North America, Australia and Europe.
|
Actually, more frightening than …………….
This will seep into other legal areas I fear until it will be generally accepted that you are in fact guilty when charged and the burden of proving innocence is entirely on YOU !
One of the unfortunate aspects of the ‘guilty until proven innocent’ tactic is that it is logically impossible to PROVE a negative ! But then I sure the dolts pushing this idiocy already know that, don’t they ?
Is that new in Britain where there isn’t even freedom of speech?
No, there is a presumption of innocence. But the offence is to have conducted yourself in a manner that makes you guilty, and if a certain state of affairs arises, then you have committed a crime. The distinction is, for now, important. Stalin’s Criminal Code has a specific offence ‘Suspicion of Espionage‘, where you committed a crime if someone else suspected you of espionage. Of course that is not a presumption of guilt, it is just a very low hurdle for the prosecution to meet (Yes I know every trial was a farce and charade, but it illustrates my point). All that there was to prove was that someone suspects you of espionage, that is the actus reus, there is mens rea, but it is someone else’s mens.
My answer to this: A Bill of Attainder jailing everyone involved in passing the law and involved in implementing it. Sentence to be served in a lumber camp in Belarus, 10 years without the right of correspondence.
Just a reminder, “You can’t prove a negative” is utter tripe, drivel, and hogwash.
You can’t prove a negative if the negative happens to be false, and can’t you prove it if it’s true but you haven’t hit on the proof yet. It’s true that SOME kinds of negatives are very difficult (and sometimes impossible) to prove, But that’s not what The Rule says.
For instance, I can absolutely prove that my kid did not kill Charles I. Proof: He died over 2.5 centuries before she was born. I can absolutely prove there is no number x such that x+1 = x+2. (Left as an exercise for the reader.)
I can absolutely prove that there is no Large Hadron Collider in my bedroom. If anybody wants the proof, I will invite you to come and look for yourself. And that I have not got enough cash with me to purchase the lobster I’d dearly love to buy today.
We do this all the time in mathematics–it’s the proof by contradiction. And we do it in some small way every day in real life, as in the lobster example, where the proposition isn’t stated formally as such and neither is the conclusion formalized with “Q.E.D.,” but where the whole 2-millisecond train of thought can be formalized. Well, it probably wants another 3 seconds if somebody demands physical proof, because you have to open your purse and let the skeptic count your shekels.
I suppose he could also undress you, do a cavity search, and run you up to O’Hare to go through those neat X-ray-like machines, but it seems like a lot of trouble just to prove you can’t have lobster today.
Oh right I will try the Hadron Defence out if I get arrested by the FCA
Also, obviously, as a matter of FACT (as opposed to possibilities or probabilities or “shades of meaning”),
“X is guilty” is a positive
and
“X is innocent” is a positive.
Also, “X is guilty” if and only if “X is not innocent,” and conversely, by the meaning of the words “guilty” and “innocent.”
In other words, the proposition can be stated as either a positive or a negative. So if “you can’t prove a negative” IN PRINCIPLE, then it’s also true that you can’t prove a positive, IN PRINCIPLE.
So if you manage to prove either “X is innocent” or “X is guilty,” you’ll be proving a negative.
For a refresher on this, go watch Call NOrthside 777, in which Jimmy Stewart does indeed manage to prove the guy on Death Row is not guilty. Excellent movie, and based on a true story.
Well, Perry, if they are at all logical and interested in Truth, you will win in a walk using the JBD, or Julie’s Bedroom Defence.
But I doubt that they would want to tangle with an Evil Hippo who is feeling testy, having been recently run across. Or over. 😉
Having read today on Spiked online about a Scotsman jailed for four months for singing a song I think I know the answer to this one.
Julie, I’m sure you know this, but “not guilty” is NOT synonymous with “innocent”. That’s why the jury doesn’t find you “innocent”, it merely finds you “not guilty”. And it is the reason that the issue of burden of proof is so important in criminal trials.
As to this particular issue, I’m not as offended by it as some others here seem to be. It doesn’t reach all the way to “guilty unless proven innocent”. What is does is insert a relatively modest tweak into the ancient doctrine of respondeat superior (the master is liable for the actions of his servant). As I read the description in the article (which really isn’t all that comprehensive), what it says is that if an employee of a bank commits a crime of a certain type his ultimate superiors are responsible unless they can demonstrate that they took “reasonable” precautions to prevent it from happening. Admittedly, historically respondeat superior sounded primarily in tort, not criminal law, but if manipulating the LIBOR rates is to be defined as a crime (I have a problem with that, but that’s another discussion) then the bosses should bear responsibility for creating an environment where it could occur. I have long argued that institutions do not commit crimes, only individuals do. If punishment is to be meted out, it should be visited upon the individuals actually responsible, not on the innocent shareholders (which is what happens when a bank is fined). All in all, to me this doesn’t seem that bad a rule.
There’s plenty of wiggle room in the word “reasonable”, and as long as there was some element of control imposed (defined procedures, dual checking of confirmation tickets, independent auditing, etc.) I very much doubt that any senior banker will actually serve any prison time. Or, to put it another way, if the controls were so lax that a banker couldn’t prove that reasonable measures were in place to prevent the crime, he deserves to go to prison.
Julie: “Also, “X is guilty” if and only if “X is not innocent.” Not true; the “and only if” makes it wrong. X does not have to prove his innocence; the prosecution has to prove his guilt. A tie goes to the runner (or, in this case, to the defendant).
In fact this is nothing new, the UK’s Bribery Act 2010 created an offence of ‘failing to prevent bribery‘ under Section 7, with a defence of having ‘…adequate procedures designed to prevent…’. it, which are not defined.
and the Armed Forces and Intelligence Services are exempt in the line of duty, so there you go.
In Scotland, a distinct jurisdiction within the UK, the High Court of Justiciary (the main criminal court) has an inherent jurisdiction ripe for abuse going back in time, the Declaratory Power, which allows it to declare conduct in Scotland criminal without prior precedent or legislation, but the courts have ruled as to the limits of the power, one case involved the heinous (apparent) crime of passing betting slips in licensed premises (i.e. a pub). It has been used against sellers of glue sniffing kits (presumably more sophisticated than crisp packets) and could be used now I imagine against sellers of ‘legal highs’.
Plenty. And it cuts both ways. So there should be enough wiggle room to ensure that any “respected senior banker” from a reputable (politically-connected) organisation like Goldman Sachs needn’t fear, while there’s another tool in the toolbox to harass (for example) any dangerous radicals suspected of protecting their clients from the tax farmers, or any weirdos that want to replace fiat currency with crpyto or, well, whatever they want to target.
Yes Perry – all the “reactionary” principles of the Rule of Law have been unfashionable for some time.
Even in the United States both “liberals” and “conservatives” have worked to destroy the 4th Amendment – after all RICO and so on make a mockery of it.
Perhaps bankers will be randomly chosen for public execution – that would entertain the mob.
And the real problem, the credit expansion, will continue to be actively pushed (encouraged) by government.
the financial watchdog has changed the legal requirement is clearly the scariest part if this.
I do agree with wh00ps’ point. Regulatory agencies should not have the ability to invent crimes; that is a legislative function. But this isn’t the first instance of such a thing (we have the same problem in the US) and isn’t really the point of this thread.
‘Presumption of responsibility’ could come in useful. In politics I would like it to be extended to anyone involved in funding the EU or disbursing it’s money. Not to mention DFID
If you think that is sinister, there is also the National Health Service’s role in combatting terrorism!
Indeed! Odd really, as the NHS has slaughtered more people in the UK than terrorism, and presents a graver present danger to me and my relatives.
However, we can now look forward to visiting our GPs with, say, a broken toe, and being asked if we smoke, drink, eat other people’s livers, ‘Yes Doctor, but I don’t always manage five a day‘, engage in violent Jihad and/or want any holiday jabs for Syria.
Mr ED is correct in that “absolute offences”, requirements upon entities – like health professionals, of which I am one, to PREVENT specific events from occurring. The event is enough for conviction. “Corporate Manslaughter” is one more general manifestation as is failure to make a tax return by the 31st January! But Laird @7.48 “Not Guilty” means exactly what it says – that is innocent of the charge, as opposed to the Scottish ” Not Proven” which means “you probably did it but we can’t prove it! I haven’t linked to this legislation but it seems to be applying an absolute responsibility – whether reasonable or not. Similar legislation is, in part, responsible for the current shambles in the field of child (and vulnerable adult)protection.
Mr Ed @ 8.40. This requirement actually applies to ME! It also contradicts 3 other statutory obligations I have as absolutes. It is a nightmare, essentially requiring me to snoop on (let’s not beat about the bush) on young muslim patients. Mind you, as this “radicalisation” can be seen as child abuse (particularly with a sexual objective -as in recent headline cases) this obligation already exists for me.
It seems to me that Laird is exactly right on this. (But what do i know?)
The way i see it is, there is no need for prosecutors to prove criminal intent by senior bankers, but there is still a need to prove that a crime has been committed (by junior bankers). If a crime has been committed, then the senior bankers are assumed to be guilty, no matter whether it is criminal intent or negligence. It is up to them to prove that they were not negligent, but that’s why they are paid big bucks: because they have a burden of responsibility!
BTW Call Northside 777 is indeed an underrated movie, though it stretches credibility at the end. Didn’t know it’s based on a true story: i must find out what the true story was.
I am a fan of detective stories, and sometimes it does happen that somebody is proven innocent (or: not guilty) without proving somebody else guilty. I note, however, that the police never starts by arresting everybody who has a motive, and then asking them to prove their innocence.
diogenese2, so if you come across a jihadi youth, if he’s buggered, you’re buggered, and if he’s not buggered, you’re buggered. Sounds like a Bugger!
Mr Ed – yes that just about sums it up.
Laird, forget legalspeak. I am using as “Innocent” is a word in its own right, not a term of art within the legal profession; the same is true of “guilty.” George was or was not guilty of chopping down the cherry tree, as a matter of FACT, but not BOTH of doing so and not doing so, and not of NEITHER doing so nor not doing so. If he did NOT chop it down, he was innocent of the act. If he did NOT not-chop it down, that is the SAME AS SAYING THAT he DID chop it down, and he was guilty. “Innocent” specifically means “not guilty,” and vice-versa. If these words are used differently in court, that does not affect the logic here; the legal system can define words however it wants and reach logical results if it rigorously sticks to its definitions and to logical rigor; but, of course, the price may in some cases be that a proposition (or allegation) is incapable of logical proof simply because the definitions are not so constructed as to cover the possibilities adequately.
I will note that the online dictionaries (the best by far is now Webster’s 1913), including even the execrable Macmillan’s, give “not guilty” as one of the main meanings of “innocent,” although the reverse is not true, which is certainly logically inconsistent. In the thesaurus, “innocent” most certainly is listed as an antonym of “guilty.
You can also prove the following negative: It not true that, in English, the string “c a t” does not spell cat. You need only remind your opponent of how the word IS spelled. In any situation where a given statement is necessarily either true or false–as in mathematical, or pure, logic or in any abstract and many practical situations–to prove the statement false is to prove its negation true, and it doesn’t matter in the slightest whether the statement is stated in its positive or negative form.
Again, a man is guilty or innocent of X, that is he did or did not do X, regardless of what the law says or what the judge or jury decides. My daughter is innocent of the execution of Charles I, no matter what anybody thinks. Facts are facts, no matter what anybody says and no matter what the law says about what constitutes legal proof.
Either it is true the sun is a block of ice or it is not true. IF it is true (or assumed true) that the sun is a nuclear reactor whose temperature is measured in the thousands of degrees Kelvin, and IF it is true (by definition) that a block of ice (water ice) is a substance whose temperature is ≤32˚ F, then if is not true that the sun is a block of ice. The negative is true and proven.
. . .
My objection, to summarize, is wholly and solely to the BLANKET STATEMENT that “you can’t prove a negative.” Sometimes you can’t, for various reasons; but often you can, and since a single exception is enough to disprove a proposition’s universal truth, the blanket statement is flat-out WRONG and can NEVER be used to disprove a proposition or a statement.
Julie, I don’t care about the blanket statement; I’m not enough of a logician to have an opinion on whether it is or isn’t falsifiable. In any event, that seems to be a particular bugaboo of yours about which you like to quibble, and it’s not really germane to this discussion. But I do care about the correct usage of the word “guilty” in a criminal setting. If you’re going to use a legal term in a wholly legal context (as this is), you have to use it in the correct legal sense (i.e., “legalspeak”). Common (sloppy) dictionary definitions are irrelevant here. If you don’t like it, make up your own word.
And it appears (which I find rather surprising) that you don’t understand the function of a “presumption”, specifically here the one about innocence. In a criminal setting the defendant does not have to prove his innocence (which is an affirmative proposition); he merely has to demonstrate that the prosecution failed to adequately prove his guilt. He may be truly innocent or he may not, but it doesn’t matter; all that matters is what the prosecution can prove (to the requisite legal standard: beyond a reasonable doubt, more likely than not, etc.). In criminal law, “not guilty” is synonymous with “not proven”, not with “innocent”.
In this post, I see that ” . . . the financial watchdog has changed the legal requirement for punishment from “innocent until proven guilty” to “presumption of responsibility”.”
In the previous post, I see this: “The Venezuelan parliament on Sunday approved a law giving the president, Nicolás Maduro, the power to legislate by decree . . . “
Seems like Venezuela is just trying to catch up to y’all.
Yeah. At least we’re not yet where the USA is with property rights when the state wants to take your stuff though.
The USA? Oh, hell, we’re WAY beyond y’all and Venezuela. We’re now ruled by executive fiat.
Our borders were opened by Obama’s executive order, our taxation agency operates as Obama’s enforcers, our justice department gets to pick and choose which laws to enforce, our environmental bureaucrats/activists announce unfounded scientific decrees and use them to draft regs and rules in direct contravention of our laws, our banks are once again being blackmailed by our government into making unsecured and insane loans based upon race, our internet has been taken over by executive decree to serve executive whim, Obama is single-handedly mailing nuclear weapons to the mad mullahs while he undermines Israel’s elections . . .
I could go on.
My point is, I used to feel a justifiable sense of civic superiority when I read accounts of South American dictators decreeing themselves new powers and confiscating whatever happened to be close enough to confiscate.
No more. We’re all there. It’s banana republics all the way down.
For your information, Mr. Minor, I am quite aware of the existence of and reason for the Presumption of Innocence in any legal system. I wish it did not seem increasingly to be a standard of the past. There are two reasons for it, only one has to do with difficulties in “proving a negative.” As a matter of fact the prosecutor is also supposedly trying to prove a negative, namely that the accused is not innocent.
That’s for starters. Secondly, and importantly: People use this trashy “can’t-prove-a-negative” as if it were a logical axiom, which it most certainly is not, being so often false, and presume to use it to “prove” their preferred conclusions or to excuse themselves from bothering to make proper arguments for their decisions.
Third, as a matter of rhetoric: It is true that one might object to my single example of the actual antonyms of “innocence” and “guilt” in this PARTICULAR discussion because in this case it is easy to change the subject from the illogicality of the rule to an argument that depends entire on legal situations and jargon, and not on logical rules.
But I have shown you plenty of other examples (both here and in the former discussion of the same point) that had nothing whatever to do with any word of interest to the legal system. I withdraw the example, but only with nolo FURTHER contendere. Capische’?
Trying to help people to understand how logic works, what its rules are and must be, is no less necessary than trying to see that they don’t make arithmetic mistakes (for instance, as a matter of course making calculations based on the idea that 2+2=5). And pointing out fallacies, even at length when they are serious enough to warrant it, is a matter of taking thought and reasoning seriously.
Summarizing. The initial statement to which I objected was not “In cases like the one in the O.P., it can be difficult or impossible to prove the negative.” Had it been, there would have been no discussion. But that was not the statement. The statement was what it was, a simple flat declarative statement with no if’s, and’s or but’s, and as such it was flat-out WRONG and needed correction.
Ah, Laird, but: If the defendant is presumed innocent until proven guilty and the jury returns a verdict of “not guilty”, indicating that the prosecution has failed to prove guilt, then the presumption of innocence continues to apply and the former defendant is, in law, innocent.
” . . . then the presumption of innocence continues to apply and the former defendant is, in law, innocent.”
(Sigh. Sorry. Pedants ‘R Us, I know, but I sat through too many law school class arguments on this topic to simply not speak.)
The Presumption of Innocence is nothing more than a recognition that the State cannot deprive one of one’s rights as it could had there been a legal finding of Guilt. It would have been more accurate had the Presumption been termed a Presumption of Non-Guilt.
This is not the same as a Finding of innocence. It simply signifies the absence of proven guilt.
I apologize for my pedantry. But I have an entire degree based upon pedantry, so it’s sometimes hard to refrain.
Of course not. Why would it be, given that that’s not what we’re discussing and you’re the only person to bring it up?
But there’s more to this than first year law school suggests. Don’t take my word for it – read Scott Greenfield’s thoughtful discussion on the matter.
Surprised Laird hasn’t pointed to this (I am likely a contrarian on the issue):
Is this not somewhat similar to the issue arising in a case of criminal negligence?
There must be a determination that there must has been “negligence.” Whether it was criminal requires proof, or at least evidence to be weighed.
For negligence to occur there must be a “Duty,”
(usually a duty of some measure of care, positive action or refraint).
Do they propose the res ipsa loquitur solution? (Liability of a common carrier). If so, it will not be the first chase to “remedy” the harm done rather than determine a basis for responsibility.
Of course, here it is not remedial, but punitive.
Julie,
It depends upon the context. I only really know logic in terms of strict mathematical logic and electronics and stuff. 1&0 and all that but But in messy human stuff I don’t like it is more complicated. What are the shades between murder and manslaughter? Human stuff is much more analogue.
But thanks Julie. I shall attempt to find my discrete maths notes from twenty years ago. They are proving a little too discreet though. But thanks. I was very good on formal logic. It was my strongest minor and I shouldn’t lose that from the brain.
“Everybody loves Baby / Baby loves nobody but me” and all that caper. Went a bit further than that of course.
Julie, I’m perfectly happy to accept as correct your assertion that the statement “you can’t prove a negative” is wrong. But that is not what this thread was about; it’s a tangent you took off onto. My only objection to your comments was to the incorrect (from a strictly legal perspective) use of the term “innocent”, and specifically to your conflation of that word with “not guilty”. And even that wasn’t my central point, which concerned the application of something analogous to the doctrine of respondeat superior in a narrow criminal setting. Nothing more.
And I agree with bobby b’s explanation. (I suffer from the same disability as does he.) But I don’t think I agree with RRS on this. As I understand the new rule (again, as summarily described in the linked article, which is certainly less than dispositive), I don’t this is precisely an issue of “negligence”. Respondeat superior doesn’t require any “negligence” on the part of the master. But rather than imposing a “strict liability” standard on the bank’s ultimate bosses it affords them an escape hatch if they can prove that they took “reasonable” precautions. In essence, the bank’s senior executives are being charged with breaching some sort of duty of care (I’m not sure to whom; the general public perhaps?) if they failed to take such “reasonable” precautions. Whatever that is, I don’t think it’s negligence per se. Nor is it res ipsa loquitur; the “escape hatch” negates that. But it certainly is punitive; all criminal laws are.
I’m not a legal expert, but surely the “proving a negative” problem in law is closer to “proving impossibility”. Imagine being required in court to prove that you can’t fire a gun. If you fumble with it for five minutes, looking down the barrel, shaking the magazine like a confused chimp, have you proven that you *can’t* fire it? Or just that you can pretend to fumble with it for 5 minutes? Suppose you fumble with it for ten minutes without appearing to get any closer to the trigger?
For the logically inclined: I think this is more closely related to the halting problem than a proof of/by contradiction. If you watch a computer program run for 5 minutes and it hasn’t finished has it entered an endless loop or will it finish in a minute? If you have watched it for 5 years will it finish in a minute? Interestingly, even if you can review all of the source code and a formal (logical) model of its behaviour it is still impossible to know.
I bow the the legal and financial expertise of those that say this particular case isn’t too scary and there is already a legal requirement to show that “proper procedures are in place” etc. but I agree that its a dangerous precedent to have a requirement in law to show you “couldn’t have” done something. “Presumption of responsibility” sounds like it requires someone to show that they couldn’t have known/prevented/understood what was going on.
I predict three changes to the organization of financial companies.
(1) Movement of a lot of senior managers into nebulous positions that are connected on org charts with dotted lines.
(2) “New” management positions being created, making entry level jobs for recent graduates, who, upon commissioning, will have to sign numerous forms about ‘direct responsibility’, etc.
(3) An indefinite number of supervisory levels being transfered to overseas subsidiaries.
If you can’t game the system, find someone who can. Also, “wiggle room” in reasonable judgement these days seems to mean “who did you make your campaign contributions to”.
Well, if we’re going down this wretched path, I suppose it’s too much to hope that Rotherham councillors, ‘child protection officers’ and South Yorkshire police might also find themselves with a ‘presumption of responsibility’.
Something tells me they will remain innocent until proved guilty.
A: ” . . . the former defendant is, in law, innocent.”
B: ” . . . a Finding of innocence.”
A: “Idiot! We’re not talking about innocence!”
?
I’ve worked in the Financial Services, since the Enron scandal, the regulatory authorities have decided there is no excuse for not knowing what is going on. Not only does this extend to senior management having to sign off everything, but the lower orders can be found guilty of not recognising that their colleague was up to no good. It’s not so much of a “guilty until proven innocent”, more of a “you knew what was happening, prove you did not (and were therefore not complicit)”.
In direct opposition to the NHS, where you are prosecuted for whistleblowing, in Banking you are prosecuted for not doing so, apparently money is more important than life.
I think you’ll find that A actually said that we weren’t talking about Findings of innocence (your capital F) which, as you are doubtless aware, are a form of relief for which, in certain jurisdictions, former defendants can petition the court after acquittal or dismissal.
Given your expertise in pedantry, I’m surprised that you didn’t spot that. Still, it’s all good knockabout fun. 🙂
More seriously, it seems to me that Greenfield raises a point that should resonate with those who are inclined to the classically liberal. I won’t rehash his words (the linked blog is well worth reading, IMHO) but if one considers the disparity between being innocent and being “merely not guilty” then the conclusion that a taking (albeit of intangible property) has occurred is inescapable.
This seems to me to be worthy of discussion and perhaps even reconsideration of a piece of received wisdom or two.
In the same vein as Mr. Laird (RFLaird from the defunct Instapunk?), I don’t think there’s enough information in the article to know if it’s worth getting het up over.
If it can be proven that a crime has been committed by one or more people inside an organization, that crime is consistent with the organizations normal business and committed by people who do things like that in the normal course of business. For example holding a Banking executive liable for one or more of his peeps writing fraudulent loans might be reasonable if there is evidence that the bank did not have industry standard processes in place to prevent it. Holding the same guy responsible because 3 janitors had a stolen car ring running is not.
There are lots of frameworks out there for mitigating these kinds of risks, and in general we hold the person at (or near) the top responsible for the people underneath them.
If you are the head of a financial organization, especially in today’s climate and you aren’t looking internally for fraud or other criminal activity, one has to wonder why.
Oh, and can we apply it to Obama? He and his people SHOULD HAVE KNOWN that Hillary was not following the law by running a mail server out of an office in NYC.
On the other hand, I certainly see where this is leading down a bad path.
“(RFLaird from the defunct Instapunk?)” No. (FWIW, “Laird” is actually my first name. And no, I’ve never gotten a straight answer from my parents about that.)
“Hollowed out” is a telling expression – Eddie Willers’ oak tree springs to mind.