Friday News Flip 22 July 2016


WHAT do Leonardo DiCaprio, Vincent van Gogh and a Beverly Hills luxury hotel have in common? Answer: a corruption investigation. The US Justice Department wants to seize $1 billion in funds and assets linked to the Malaysian corruption scandal that revolves around the state wealth fund 1MDB. I blogged months ago (here and here) about allegations that The Wolf of Wall Street may have been funded by laundered money. Now this is no longer idle speculation but a real investigation. A van Gogh, paintings by Claude Manet and several luxury properties are also in the line of fire. The Department of Justice is also looking to seize any future profits from the The Wolf of Wall Street. So buy the film by clicking the left-hand image and you may help fund the USG’s law enforcers 🙂


DID a culture of corruption in Russia lead to the doping scandal and Russia’s looming exile from world sport’s marquee events like the Olympics?


CALIFORNIA and Australia have their wildfire seasons; Kenya has its school-fire season as over a dozen boarding schools went up in flames over the past 2 months. This has led to the prosecution of teachers and pupils for assorted criminal damage offences such as arson and abetting (encouraging) arson. The arsons are well planned: there is evidence that some of the arsonists either drained nearby water tanks (to prevent the school employees from quickly extinguishing the blaze) or deliberately prevented fire engines from entering school grounds. Others set decoy fires in one part of the school to lure away rescuers, before burning down their main target. In one county (Kiambu) police are now patrolling the boarding schools.

BUT Kenyan police are not themselves exempted from criminality. After recent allegations of extrajudicial killing of 3 civilians, Human Rights Watch has detailed deaths and disappearances in North-Eastern Kenya (Wajir, Garissa and Isiolo counties) suspected to be the work of death-squads in the security forces. Police are also alleged to have conducted a brutal night time raid in Kisumu county that left dozens seriously injured. The officers allegedly broke lightbulbs to prevent easy identification of attackers before proceeding to break bones and even attempting to rape some of the women in the homes. The President of Kenya is now under pressure to set up an official probe into police killings and abductions.

If this is the fine example of criminality being set by the forces of law and order, why would we expect school-kids who observe and absorb what’s happening around them to be any better behaved?

QUESTIONS are being asked as to why there is still inadequate justice for PEV victims 8 years after post-election violence nearly rent the country apart.

THE Zimbabwean parliament could be set to debate whether to make ‘revenge’ porn  a criminal offence. Generally speaking, revenge porn is distributing a recording of a sex act without the consent of all parties shown in the recording and with an intent by the distributor to cause emotional harm, give offence or cause psychological harm to one or more of those shown in the recording. Unsurprisingly it usually happens when one of the ‘parties’ who made the sex-tape wants to wound the other after a nasty break-up- hence the ‘revenge’ part of the label.

WHEN is a rasher of bacon an unacceptable gift? Answer: when it is tied to the doors of a mosque during a hate crime- as several Bristol men discovered in the UK after being tried and convicted for their conduct.


SOUTH African prosecutors are considering appealing Oscar Pistorius’ 6 year sentence for murder, saying it risks ‘bringing South Africa’s legal system into disrepute’. I previously wrote about my own concerns a couple of weeks back. My concern was less about leniency in the abstract but about the fact that the sentence insufficiently reflected the distinction that society commonly makes between a murderer and those committing other homicides. There has to be a clear ‘distance’ between manslaughter and murder sentences. This is one of those areas where strict sentencing logic is trumped by the public interest in having the law reflect public values. Just as it would not be appropriate to simply re-label a robbery as a theft with some ‘aggressive elements’, on cannot simply sentence a murder as though it were a death with some ‘unfortunate’ features. Robbery and murder are distinct crimes in their own right not because of a system of legal logic, but because of the special odium that highly culpable killings and violent stealing attracts from society.

THE Canadian Supreme Court has ruled on whether a ban on using the internet could be applied retrospectively (i.e. to conduct that occurred before the relevant law came into place). It held that such a ban was lawful as an exception to the retrospectivity rule. The issue was whether such a ban was a ‘punishment’ which is subject to protections contained in the Canadian Charter of Rights and Freedoms against retrospective punishments or whether it is a ‘protective measure’ and thus exempted from those rights protects.

The court decided that though the ban was a ‘punishment’ under the Charter, the internet restriction imposed after a conviction for sex crimes was justifiable as a limit the freedom from retrospective punishment. The court stated that:

“the retroactive imposition of a ban on Internet usage was called for because of “grave, emerging harms precipitated by a rapidly evolving social and technological context.””

Strictly from the point of view of sentencing doctrine, even if a measure- such as registering as a sex offender or being banned from using the internet for some purposes- is designed to protect others from grave harm, it can still constitute a ‘punishment’ if passed as part of a sentence after conviction for a crime. Sometimes the punishing element is attached to the aspect of publicity from the sentence. Thus having one’s name published as a sex offender or a person not eligible to practice law can punish through shaming and public condemnation. But more commonly it is the deprivation of freedom that is at the heart of the harm to the offender (if one accepts that punishment is defined as a type of harm imposed on the offender). Thus a ban on driving, bar from practicing as an advocate or holding a position as a company director are predominantly protective measures (to protect others and their legitimate interests from the defendant). But if passed as part of a sentence, one can see the restriction of freedom of choice to engage in that particular activity- driving, practicing law or joining a board of directors- as punishing in the same way that a sentence of imprisonment restricts your freedom to choose where to live and where travel, or a monetary fine restricts your right to choose how to spend your money.

As with any punishment the key question is proportionality- thus a blanket ban on using the internet may- depending on the circumstances- be disproportionate to harm and culpability while a limited ban that restricts communication with a person under 16 over the internet may be more reasonable- but complicated to enforce.


THE son of Khaleda Zia, a former Bangladeshi president, has been sentenced to 7 years in prison and fined for money laundering taka 20 crore (around $25 million).