Sciencemadness Discussion Board

ENTRAPMENT

LSD25 - 5-5-2008 at 04:44

Yeah, I used capitals 'cos I think this really should be shouted...

For those who fail to understand why some fora are slightly skitish of blatant 'drug-recipe' threads there is a simple answer.

It is called entrapment. In many jurisdictions (especially those without the benefit of US First amendment jurisprudence(?)) it is illegal to provide, access, write, download and/or otherwise possess recipes for illegal drugs.

Possession in this instance includes having an encrypted computer and/or web based access to the same, which may well be held at some point in time to include entire sites if it can be proved that one is a member of the same, having such encrypted access.

I know many here will not agree, but this is a direct result of the war on terror, first & foremost, although it is rapidly being modified and taken advantage of in the ever-present war on drugs (and believe me many people fail to make any distinction between the two, especially lately).

What is interesting, is that although some sites, oft-mentioned with a degree of disdain by some members here, fearlessly continue to act in ways that are contrary to the new (albeit as yet untested) legal boundaries, others such as this site have taken a less dangerous course, by self-editing posts so as to be less than utterly blatant. Their reasons for this policy are apparent and quite possibly sufficient to safeguard them provided they are followed strictly.

What concerns me, is that whether a post which contravenes such policies is posted by a misguided individual or even an agent provocateur, the effect is the same. Due to the anonymity provided both individuals and agents of the inquisition by the internet, there is fuck all hope of proving entrapment if such a post were later cited in a Court, thus it will not be excluded even if posted by a new member, even if written extremely unusually or even if it blatantly breached acknowledged board rules, procedures and requirements.

There are a number of boards which are to one extent or another have quite evidently become home to numbers of ex-bees. Some are quite careful, others are not, some are hidden, others are freely accessible. Some encourage discussion on certain topics which are not welcome on others, while others merely restrict access to the same. Use your head and discuss things where they are meant to be discussed, this is the only sure way to ensure that the wealth of information which has been ammassed does not again dissapear.

PS Woelen, I note your response in another thread, yeah, I know EXACTLY what you mean.

Sauron - 5-5-2008 at 05:53

I challenge you to name the jurisdiction(s) where it is a criminal offense to merely access or possess the procedure ('recipe') to prepare a controlled substance.

For one thing, there is in no instance that I can think of, a SINGLE such 'recipe' but rather there are many many routes, many alternative precursors, and always multiple steps involved. In general the precursors are not themselves psychoactive and few are themselves controlled substances. So, is it supposed to be only the final step that is forbidden knowledge?

Is this supposed to focus on various how-to manuals of illicit drug cookery?

What is the supposed connection to the war on terror, which you state is the direct cause? The war on drugs predated the WOT by many decades. I fail to see any connection.

So name the jurisdictions (country by country) and cite the legislation that makes mere knowledge a crime, this of course is ludicrous. Is Org.Syn engaging in entrapment? If the ACS engaging in entrapment? How about the Royal Chemical Society, the Canadian National Research Council, and the Biblioteque Nationale? The various patent offices, too. All of these and many more publish information online and in print, accesible worldwide, which includes detailed information on the preparation of controlled substances, not to mention explosives, military chemical agents, poisons, biological weapons, etc etc. So where is it s crime to access such readily available public information?

7he3ngineer - 5-5-2008 at 05:57

What?
Quote:

it is illegal to provide, access, write, download and/or otherwise possess recipes for illegal drugs.


I admit, I'm not an American, but I am aware of this somewhat small thing that goes by the name of free speach.
Quote:

It is called entrapment


No, as far as I know, entrapment is when you are deliberately manipulated to break the law. Taking drugs out of the equation and using an example from "The Law of Still Building" by Howard and Gibat (clearly of similar relevance), an example of entrapment would be for a policeman to pose as a buyer of bootleg whiskey to a retired moonshiner, provide the still, sugar, etc, and upon completion and preperation for sale, to go and arrest the moonshiner... this would be thrown out as entrapment.

This is a ridiculous answer because... you made a somewhat ridiculous statement (no offence;))... just use your head. If a group of people are discussing the manufacture of benzaldehyde as goes on often in this forum, only individual people know what their intentions are, so the ground of you getting into trouble are ridiculous. However, if somewhen says, "Hey, I was just wondering guys coz they waz torking bout it on tv, how do you make meth?"

...stop spreading this crap... lets talk chemistry

Josh

Sauron - 5-5-2008 at 06:16

Entrapment is a situation in which a law enforcement officer proposes a crime to an individual or group who are not otherwise disposed to commit said crime.

A non-law enforcment offier cannot commit entrapment.

Likewise an officer can, properly, propose a crime to a person or persons who ARE disposed to commit such a crime, such as a person or persons with an arrest record for the same or related offense(s), and then arrest such persons when they make an overt act in furtherance of such a criminal conspiracy, or in the process of committing the crime itself. No entrapment occurs in such a case.

For example, an undercover cop can propose an armed robbery to an armed robber without engaging in entrapment.

Why is this thread in Forum Matters and not in Legal & Social Issues where it belongs?

Pulverulescent - 5-5-2008 at 06:20

I, too, think you're being a bit alarmist, LSD, but I'm on the other side of the Atlantic, so what would I know?

The "appalling vista" you present may be on the horizon, though, as far as US legislation is concerned.

Maybe you should just emigrate!

P

Sauron - 5-5-2008 at 06:37

Nonsense. The US is not where LSD25 is talking about, he says as much by referencing US constitutionally protected freedom of speech and the press.

Pulverulescent - 5-5-2008 at 06:57

In that case, Sauron, he must be on a bad trip!

'Sorry LSD, it's temptation, you know!

P

Geomancer - 5-5-2008 at 07:03

Strange I come out of hiding for this. As a US citizen, what you propose runs completely against all my (limited) legal knowledge. Where did you say this occurs? Regardless, it doesn't take much observational skill to note that, even in the US, prosecutors do love it when people have recipes, since they provide powerful evidence of intent. So if you have an assortment of chemicals along with instructions for doing something illegal with them the prosecution has a fighting chance. In fact, the requisite chemicals might not even be necessary, provided there is evidence you were attempting to carry out the recipe and believed you would succeed.

Similarly, being a regular visitor to a website where such things are very heavily discussed (say, the Hive), militates towards intent, but more weakly. Having serve on a jury, I'd say that reading SM would be very weak evidence indeed. Far too weak for it to be worth unscrupulous people attempting to spice it up.

OTOH, it may be suspicious, and perhaps illegal in some jurisdictions, to provide informational assistance to someone who is obviously trying to commit a crime. As you would be doing this with very little incentive, entrapment would probably not apply, even if the original poster was a LEO.

As a side note, I just glanced at my U2U, and saw an old message requesting advice on dimethylmercury synthesis (something I know nothing about). Case in point? Al-Quadet?

Also, regarding entrapment, I think it may apply too if the persuasion occurred at the hands of agents of the police, i.e. people acting with the intent of provoking a criminal act and subsequent prosecution. Is this a symptom of watching too much Law and Order?

Phosphor-ing - 5-5-2008 at 07:11

That is conspiracy when you help somone commit a crime or even cover a crime up later.

Edit: I agree with Sauron this belongs in Legal not Forum Matters.

[Edited on 5-5-2008 by Phosphor-ing]

Sauron - 5-5-2008 at 08:36

No, that is aiding and abetting a crime, or in certain crimes, being an accessory before or after the fact.

Conspiracy cases are usually hard to prove unless there's a co-conspirator turned rat. For that reason prosecutors usually prefer to stick to something easier to prove.

LSD25 - 5-5-2008 at 09:54

No sunshine, I ain't being alarmist - that is the law considerably closer to where Sauron is than it is to the Atlantic. It is actually the law in several Australian jurisdictions NOW and I'd imagine it will become the law in a number of other places in the foreseeable future. That is not fiction, it is actually hapenning.

This is a law of the Australian Commonwealth Government (Federal):

{Taken from: http://www.austlii.edu.au/cgi-bin/sinodisp/au/legis/cth/num_...
Quote:
308.4 Possessing substance, equipment or instructions for commercial manufacture of controlled drugs

(1) A person commits an offence if:

(a) the person possesses any substance (other than a controlled precursor), any equipment or any document containing instructions for manufacturing a controlled drug; and
(b) the person intends to use the substance, equipment or document to manufacture a controlled drug; and
(c) the person intends to sell, or believes that another person intends to sell, any of the drug so manufactured.

Penalty: Imprisonment for 7 years or 1,400 penalty units, or both.


Here is the explanatory memoranda from a law of the Australian Capital Territory (ACT):

{Taken from: http://www.austlii.edu.au/cgi-bin/sinodisp/au/legis/act/bill...
Quote:
There are also new offences of possessing equipment, substances and instructions with the intention of manufacturing or cultivating controlled drugs or plants (clauses 614 and 621) and related but more serious offences of supplying others with such equipment and instructions etc so that they may manufacture or cultivate controlled drugs and plants for sale (clauses 613 and 620)....


Later it says:
Quote:
Possession - This definition also extends the meaning of the term “possession” wherever it is used in chapter 6. In addition to the usual meaning of “being in possession”, the definition covers receiving or obtaining possession, having control over the disposition of a thing (even if it is not in the person’s custody) and possessing a thing jointly with someone else. The term is used in a number of provisions in the chapter including the definition of ‘trafficking’ and the presumption as to trafficking in clauses 602 and 604; and the offences in clauses 614 and 621 (concerning the possession of substances, plants, equipment or instructions for manufacturing or cultivating controlled drugs or plants).


Then it goes on to detail the relevant clauses:
Quote:
Clause 613 Supplying substance, equipment or instructions for manufacturing controlled drug

The offences in this clause are directed at those who supply others with the raw materials, equipment or instructions to manufacture controlled drugs. Subclause 613(1) provides that a person commits an offence if the person supplies another with any substance, equipment or instructions for manufacturing controlled drugs, (1) believing that the other person intends to use the equipment etc to manufacture controlled drugs and (2) with the intention of selling the manufactured drug himself or herself or believing that the other person or someone else intends to sell the manufactured drug. The offence in subsection 613(2) is the same except that it applies to a person who possesses any substance, equipment or instructions to supply to others to manufacture controlled drugs for sale. The maximum penalty for both these offences is seven years imprisonment, 700 penalty units ($70,000) or both.

Although, these offences will apply in cases where the intention is for the recipient to ultimately sell the manufactured drugs, the major focus is on the entrepreneur who organises and supplies small backyard operations with the means to manufacture drugs so that they (the entrepreneurs) can sell them on the black market. For this reason the offences will apply whether the relevant materials and equipment etc are sold, given or loaned to the manufacturer (see the definition of supply in clause 600).

Clause 614 Possessing substance, equipment or instructions for manufacture of controlled drug

This clause extends liability to persons who engage in conduct preparatory to manufacture of a controlled drug by possessing a substance, equipment or instructions to manufacture controlled drugs. The clause provides that a person commits an offence if the person possesses any substance, equipment or instructions for manufacturing controlled drugs
(1) with the intention of using it to manufacture a controlled drug and (2) with the intention of selling the manufactured drug or believing that someone else intends to do so. The maximum penalty is five years imprisonment, 500 penalty units ($50,000) or both.

The offence is restricted to possession with a view to sale of the products of manufacture. That is, the person must intend to use the substance, equipment etc to manufacture a controlled drug and to sell the product. A person can also commit the offence if he or she manufactures the drug believing that someone else intends to sell it.

The offence does not restrict the nature of the substance or equipment that might be possessed by a person to manufacture a controlled drug. Commonly the manufacture of drugs does not require sophisticated equipment or substances. However, the more common the equipment and substances, the more important it will be to produce other evidence to prove that the defendant possessed them to manufacture controlled drugs for sale.


It is a rule of general applicability in law, including criminal law, that intent can be established by inference. Such as for instance where someone provides someone else with information pertinent to the production and/or manufacture of a dangerous drug, knowing or being presumed to have been aware, that it was likely that such information would be used in the production of a dangerous drug. Such an inference could be supported solely by reference to the fact that the person to whom the pertinent information had been supplied, had in fact made multiple references to the production and/or manufacture of dangerous drugs and their intention to engage in the same.

I take issue with your suggestions vis-a-vis conspiracy, conspiracy cases are viewed as being other than in the interest of justice, simply because they are so fucking easy to prove. All that is needed is to establish that two or more people were acting in concert in order to acheive a common end, from which an agreement is able to be inferred. The Courts generally frown upon the use of conspiracy charges where specific charges cannot be brought against the individual members of the purported conspiracy because it is a fucking catch-all.

As to the applicability of Australian Law to the operators of this forum, I suspect they really should be paying attention to the current 'KNO3' extradition proceedings - which relates inter alia to the jurisdiction in which crimes committed over the internet are actionable, also Gutnick v Dow Jones, in which the publisher of an article which was downloaded in Australia (but published in the USA) was subject to Australian Law and thus disentitled to reliance upon 1st Amendment jurisprudence, and other such cases.

I titled this thread entrapment because all that would be necessary would be for an agent provocateur to, without even the minimal protection afforded by the use of the 'Someone Who Isn't Me (aka SWIM)' to state that they wish to get some information specifically for the production and/or manufacture of a dangerous drug and/or a precursor to the same. This is why the use of 'SWIM' is important, it provides a degree of deniability to those providing information to others, insofar as they can legitimately deny that they knew they were providing the information directly to someone wanting information for an illegal purpose, it provides fuck all protection to the person using the same. If that person were then provided with the sought information and the thread were not locked and/or deleted by the moderator's of the same, their willingness to allow such information to remain available would be evidence against them on that charge, irrespective of the identity of the person seeking the same (in the same way that KNO3's provision of precursor's to individual's who mentioned the use of the same for their 'meth lab' is likely to be allowed as evidence despite police having been the ones who made the buy).

Finally, Sauron, I'd like to suggest a compromise - If I refrain from telling you how to sell weapons in Asia, how about you refrain from telling me how the Australian Legal system works? Might even be an idea to extent that to include you refraining from purporting to tell those who know such things how the law of the internet is evolving? The three major points that need to be understood, immediately are:

(1) Information downloaded and/or accessed on the internet from Australia/America/UK is actionable in the jurisdiction it was downloaded and/or accessed from, not the jurisdiction from which it was published and/or uploaded from;

(2) It is a criminal offence to provide information about the manufacture and/or production of a dangerous drug and/or a precursor to a dangerous drug to a person seeking such information for the purpose(s) of manufacturing and/or producing the same in Australia.

(3) It is not yet settled, although the 'KNO3' litigation will surely do that, that where a criminal offence is committed using the internet, the persons committing that criminal offence are able to be deported to the place/jurisdiction where their conduct constitutes the offence and are subject to the laws of that place/jurisdiction.

Please take note of these points, they are potentially somewhat important...

For those with the knowledge, the interest and the capacity to understand the issues raised, here is some additional reading:

http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/MurUE...

http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/MurUE...

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/...

The UK position (and the effect of the Single Publication Rule on internet publication) is here:

http://www.bailii.org/ew/cases/EWCA/Civ/2001/1805.html

http://www.bailii.org/uk/cases/UKHL/2000/25.html

An interesting journal article on these and a discussion of the same is here:

http://www.bailii.org/uk/other/journals/JILT/2005/saadat_1.h...

Oh please understand, this is not a minor, imagined concern - it is quite probably the most difficult area of law - the emerging boundary of defamation - the internet - and criminal law. As is usually the case, the original jurisdiction is established by reference to defamation law, actionability is established by reference to the same (the only way the KNO3 litigation stands any chance of success). Watch your backs boys and girls.

[Edited on 5-5-2008 by LSD25]

Pulverulescent - 5-5-2008 at 11:18

You certainly seem to have given the issue considerable thought, LSD, and I know nothing of Aussie laws.

To provide a contrast, though, I need to veer off-topic somewhat, if I may, but bear with me.

I'm Irish and know fuck-all of Ireland's laws either, but I've been busted for cannabis cultivation twice.

I'd been engaged in fairly minor dealing on both occasions, for years, because I believe nonsensical laws should be broken at every possible opportunity.

They confiscated my scales the first time, but they weren't mentioned in court, so I was simply fined.

The second time, which was about a year ago, I saw the female cop find my Tanita, look at it and replace it.

She obviously knew what it was for, but for some reason, simply put it back in the drawer.

The second fine was 350 Euro, nearly twice the earlier sum.

I mentioned my insomnia to the cops on the second raid, so they left me almost half of the grass they'd found (~1 oz.) plus 7 healthy cuttings.

Later, serving the Summons the cop who led the bust said to me, "'Next time, don't sell any stuff and tell nobody you're growing, and I mean nobody"

I kinda' got the impression they were enforcing laws they, themselves, didn't believe in.

Anyway, I won't be putting seeds down until my house-renovations are complete.

P

Polverone - 5-5-2008 at 11:23

Let's not have this discussion turn uncivil. LSD25, your last post is more coherent than your first, but it still contains logical leaps. Australia has long had more censorship of non-broadcast media than the US, but to my knowledge it's never been able to secure extradition of a US citizen for publishing material offensive to Australian censors. Do you have any counterexamples? You seem to be basing this all on civil defamation cases.

From one of your own articles:
Quote:

Conclusions:

26. Authors who post material on the Internet may now find themselves the subject of proceedings in foreign jurisdictions, even if the material does not offend the law where it is posted, provided that the material has a sufficient connection with the jurisdiction where proceedings are instituted. Those responsible for the operation of a site may similarly find themselves subject to an action for defamation.

27. However , the Courts have been careful to discourage “forum shopping” by Plaintiffs who are seeking to bring their claim in a jurisdiction which provides them with a greater chance of success. It is clear that the action must have a substantial connection with the place where proceedings are instituted.

28. The case has the potential to have a major impact on the way media companies operate throughout the world. However, it is also relevant on a smaller scale and even at a local level, care should be taken by both publishers and Internet site operators to consider the content of websites and other publications in light of this recent authority.


The bolded portions seem to indicate that even in civil defamation cases (where this precedent tells us something) it's not sufficient in and of itself that a website publish something not permitted in Australia to expose the publisher to Australian litigation. This forum's operation has little if any connection to Australia. Fear of liability from censorious lawmakers isn't why drug-recipe seeking is discouraged here. It's discouraged because it indicates a lazy user with little intrinsic interest in chemistry and holds no didactic value.

[Edited on 5-5-2008 by Polverone]

LSD25 - 5-5-2008 at 11:26

Ah so you would be in the Republic (Euro is a giveaway)? My other half's family comes from the Upper Falls Road (they are slightly fucking insane, but they know some of my family which originally came from the lower end of that area). Could you explain to me why the Court sysem in the republic of Ireland also contains a Court of Queens Bench? That would appear to be counter-intuitive given the decade and more of fighting that went into the formation of the republic, wouldn't it?

Polverone,

The current KNO3 extradition litigation addresses that which you raise, UK citizens are facing extradition to the USA for conduct which while not constituting an offence in the UK at the time did constitute an offence in the USA. The legal principles upon which the extradition are being fought are directly derived from the defamation law (the only real jurisdicitonal legal precedent to date) and the internet.

They face criminal proceedings for having sold the items in the USA - that is the operative legal fiction arising from the sale via the internet of the precursors - that they physically existed in teh USA at the time of sale by virtue of their website. That is what is so fucking scary, the fact that they are charged with having imported the precursors and then having brought them into the United States, sold them without adherence to the laws of the USA.

Thus there is a direct correlation to the position under the laws of Australia where an American Citizen publishes information on a website which is then accessed from Australia. The offence is committed where the information was downloaded, in that respect the inchoate offence is complete and proving this case is rather simpler than proving the offences alleged against KNO3, once the information is provided to someone who has stated that they intend to use the information to produce and/or manufacture drugs using that information (or having made statements from which such intent is able to be inferred).

As the likelihood of extradition from the USA to Australia is extremely high (especially at present), given also that the Australian High Court has stated that the publisher of information is liable for the consequences of that publication under the laws wherever that publication is deemed to have been made, given that the same Court has held that American Publisher's are not protected by American law when publication is deemed to have occurred in Australia, I'd have to say that the law of defamation, or actionable publication, is directly relevant. The US Supreme Court is unlikely to interceed given that you would be attempting to hide behind something they have been reading down to a greater and greater extent and which the majority of Justices appear to have little time for.

I said it above and I'll say it again, it is now time to be incredibly fucking careful about what you allow to be said on this site (Demon Internet). If you allow something to remain after you become aware of it, you are liable for it ...

Australia is being used to a greater and greater extent as the USA's deputy in this region and worldwide. I for one would be a whole lot less than suprised if our Courts began to be used to restrict the rights of US citizens to an extent not currently allowed under US law. Funny thing is, the restrictive interpretation of freedom of speech adopted by Common Law Court systems was a major part of your revolutionary war. Funny how history is cyclical ain't it?

[Edited on 5-5-2008 by LSD25]

Pulverulescent - 5-5-2008 at 12:01

Quote:
Originally posted by LSD25
Could you explain to me why the Court sysem in the republic of Ireland also contains a Court of Queens Bench?


I can't explain it, LSD25; I didn't know it existed.

BTW, Sauron may have Irish ancestry, too!

This isn't a great country, but it has its good points!

P

MagicJigPipe - 5-5-2008 at 12:27

I didn't read the whole thread but I must point out that there was and and probably still is a bill in the works that prohibited the possession, teaching or exchange of knowledge in any way related to the manufacture of explosives or "destructive devices" with the intent that it would be used in a crime. We all know that intent can mean almost anything and is extremely vague so it would effectively make this "free speech" a crime.

We cannot pretend to not see the way this country is headed. IMO, it is not unreasonable to think that free speech no longer protects you in some instances. The Bill of Rights is slowly being eroded away. Also, there need not be legislation present (especially in other countries) for something to be illegal, de facto.

7he3ngineer - 5-5-2008 at 15:22

LSD25, sorry I didn't realise that you are in Australia.

If your that worried that you're going to have your house turned over at some point... then simply give them no reason to think your in that line of bussiness... yes, you may have some chems/equipment, but seriously it will be directed towards something... just make sure its not meth.

...If you are that concerned about the law checking up on you... then calling yourself LSD25 would be a bad start wouldn't it?;)

Josh

Sauron - 5-5-2008 at 16:40

LSD25:

I am retired. So keep your remarks about "selling arms in Asia" to yourself. I used to sell Asian arms in the US (to the military).

Where exactly am I supposed to have told you how Aussie law operates? You did not identify any jurisdiction, that is precisely what I challenged you to so. Now you have identified one country. One. One with a legal system that in some ways is as repressive as China, or the former USSR. Because the laws you cite are little more than Orwellian thought control. Shameful!

I am apalled at the Australian legislation cited. It is indefensible.

However, Australia began as a British penal colony (in the case of about half of the Australian states) and the justice system still seems to operate as if its citizens were convicts.

There is no parallel in the United States, where we rebelled against British tyranny and incorporated into our Constitution protections against the abuses of power by the state. My home town was almost destoyed by British forces in 1814 but we turned the tables and slaughtered the redcoats ay Chalmette instead. Only the state of Georgia was ever a Brit penal colony and that was prior to 1776. Half of Australia remained so for another century (feel free to correct me if I am wrong.)

MJP you ought to know that any bill proposing what you described would be struck down by the state Supreme Court or SCOTUS in a New York minute, as it is unconstitutional on its face.

The KNOW case does not pertain solely to the Internet. Red phosphorus was not shipped on the Internet, it was shipped in international commerce from the UK to USA. The sellers had dealings with the buyers on the telephone as well as on the Net and in email. The sellers were far from ignorant of the application of red P to meth cookery, as demonstrated by their possession of documentation about such procedures. Finally, the case turns on the sole charge, of conspiracy, which IS a crime in the UK, and which therefore is extradictable under the applicable agreement between the government of the US and UK. So you see, the situation is not as simple as you would have us believe.

KNO3 could have placed an ad for red P in the back of HIGH TIMES and not on the Net at all and the offense of shipping red P to buyers in USA, and conspiring to produce meth, would be exactly the same. This is not an Internet case. This is a case of people in the UK thinking they could thumb their noses at US laws and make a half a million dollars in the process. The US government position is that shipping red P to USA is as bad as shipping heroin to USA.

I somehow doubt that you are an attorney at law, because you lack fundamental understanding of basic principles. If you are in fact a lawyer, you are a lousy one.



[Edited on 6-5-2008 by Sauron]

12AX7 - 5-5-2008 at 17:29

Quote:
Originally posted by Sauron
I somehow doubt that you are an attorney at law, because you lack fundamental understanding of basic principles. If you are in fact a lawyer, you are a lousy one.


Barrister?

Case in point, why they'd name their legal agents after railing posts is beyond me... :P (Yes yes, "bannister"...)

Uh oh...content-devoid post... uh, let me just say I second Sauron's argument.

I've noticed Australia is awfully law-rich, which I suppose is a product of the whole country being roughly the population of a regular state (in the US or EU). We're not talking coast-to-coast diversity like the U.S.A. or the EU. And like those states, the constituents are able to "agree" (such agreement as democratic process allows) on more things. So one must always keep in mind that, despite Australia being a lone continent in the middle of two oceans, it's a very special case as continents go.

Tim

Sauron - 5-5-2008 at 18:19

Barristers are trial lawyers, solicitors are non-trial. Clients must be referred to a barrister by a solicitor.

The term arises from the bar, that is ge railing that seperates the officers of the court (barristers and judge) from the public. Even in US where we do not use the term barrister, we have the bar, the primary professional legal association is the American Bar Association (nothing to do with selling alcohol) and there is a seperate American Trial Lawyers Assn.

At least in Australia the accused are still innocent until proved guilty by a jury of their peers, I think Australia still uses the grand jury system to pass indictments, convictions can be appealed, and so on.

Whereas in EU accused (at least in Code Napoleon states) are guilty till proven innocent, juries are not the norm, nor grand juries.

And yes, Australia has about the same number of people as Bangkok, much of the place being the Great Sandy Desert. What's the population, 18 millions? Bangkok (a city) has 12 millions. And the Thais, without the benefits of a system devolved from Magna Carta, would not be silly enough to pass laws that jail you for having instructions.

JohnWW - 5-5-2008 at 20:12

Does Australia have any Bill Of Rights, which among anything protects the freedoms of speech and to seek information, like the U$ Bill Of Rights (Amendments to the Constitution), particularly the First Amendment (which together with the Fourth Amendment creates a right of privacy, upheld by the U$ Supreme Court), and here in New Zealand the NZ Bill Of Rights Act 1990, which in general overrides all ordinary laws? If so, ANY legislation that purports to criminalize the supply or obtaining or downloading or transmission of mere instructions or recipes or reaction/process schemes for manufacturing drugs, of which the possession, use, supply, manufacture, or sale of (without a license or prescription) are prohibited, would be of NO effect, and any prosecution brought by the Pigs under it would fail at its very first hurdle. Provided, of course, that no actual precursor substances or reagents or apparatus clearly intended solely for the manufacture of such drugs is found in the knowing possession of the accused.

Sauron - 5-5-2008 at 21:48

I have friends in the Australian government involved with food and beverage regulations, and they have repeatedly told me that Australia and New Zealand are in process of stanardizing their legal systems across the board. So as NZ has a Bill of Rights, it then follows that at some point Australia will have the same Bill of Rights, or else I am very confused about what the unification of the ANZ legal systems is all about (which is entirely possible.)

The UK itself does not have a constitution as such, Magna Carta usually being what is pointed to when the question arises. But the Magna Carta did not set forth any rights at all for the ordinary person; it simply delineated some limitations of the power of the absolute monarch versus the rights of the barons that surrounded him. I*t was historic in that is hemmed in the monarchy at all. Of course Parliament has nibbled away at the Crown's prerogatives ever since, and the present monarch is in fact a constitutional one, but the equivalent of a constitution is a large body of law accumulated over time and not a single cohesive document plus relatively few and simple amendments only passed with considerable difficulty. (It was designed that way to preclude it becoming a crazyquilt.)

The UK government can and does do things that the US government simply cannot; the "D" notice for example. The UK government can summarily place certain subject matter off limits to the press for national security reasons, the press can't publish or broadcast such news without facing criminal prosecution. The US government is totally debarred from doing any such thing. They can do their best to keep such information out of the hands of the media but once that fails, there is no putting the cat back in the bag. I am sure that DOD and CIA etc would love to have such powers but, it is wishful thinking.

Some years ago the US curts adjudicated a case or cases which involved publication of nuclear weapons design information. My recollection is that the courts upheld the freedom of the press.

Therefore it is extremely unlikely that the same system that upheld press freedom to print atom bomb details, would restrict information about conventional explosives, making controlled substances, chemical weapons or bacteriological ones either. The US is not Singapore!

LSD25 - 5-5-2008 at 21:53

OK Sauron, which fundamental principles am I so out of touch with, pray tell?

Is it the concept that the accused is innocent until proven guilty? I most certainly am not in any difficulty with this one, it is just that proscecutors tend to overlook this, I am not saying whether certain defences would or would not work, I am just stating, rather baldly, that this is something that needs to be paid attention to in order to avoid having to fork out massive amounts on defence barristers (actually in all probability QC's, especially given the seniority of the Court's where this would end up).

Is it the concept that entrapment, whether or not it is technically entrapment such as would be actionable at law insofar as evidence could or would be excluded irrespective of its probative value, can and does occur in a far wider range of circumstances than most people would comprehend or even apprehend? If so, and I do honestly doubt that you would be so niave, I do hasten to assure you that such entrapment is a normal part of police work.

Is it that I believe that there is a marked degree of commonality amongst all forms of actionable publication? If so, I must hasten to assert that the defences most commonly raised in all forms of actionable publication tend to be synonomous with those used in defamation actions - ie. truth, public interest, various species of qualified privilege, etc.

Is it that I reached the conclusion, based upon the KNO3 indictment, which specifically indicts the defendants therefrom with having imported said substances into the United States of America other than via the DEA/Customs required routes? If so, I am most interested in your take of how the prosecution intends to establish this limb of the indictment without reference to the, now settled, law of defamation on the internet with regard to jurisdiction and place of publication? Because for mine, even if they rely solely upon contract law, there is no reason to conclude that the contract was entered into anywhere other than the UK (ie. the acceptance took place at the registered business premises in the UK, the offer was made by the person in the US).

Pray tell, what basic concepts am I so lacking in understanding of?

Oh yes, for your information, Australia does not use a Grand Jury System (although it was once available - it has not been available since the 19th Century IIRC).

But, having said what I have said above, you will get no argument from me as to the nature of the laws cited above, they are positively tyrannical. That b.eing said however, they are not the most restrictive laws of their kind in this country, those would be the equivalent laws (Life I believe) in WA, Qld, NSW & Victoria.

As to the nature of our 'DEMOCRACY' please feel free to read these two articles:

http://www.abc.net.au/lateline/content/2007/s1992324.htm

Where an Indian Doctor was arrested, charged and detained for almost 3 months for having provided a 'SIM' card to the latest bombers in the UK. He was released when his lawyer let slip to the Press that the 'SIM' card did not exist, had never existed and the AFP could not prove anything of the sort. The Commissioner of the AFP then sought greater powers in order to prevent any such leaks in the future:

http://www.abc.net.au/pm/content/2008/s2152598.htm

Presumably so that the ineptitude and lack of evidence of his organisation was not allowed to leak out anymore in such circumstances, which would mean that Mr Haneef would still be in custody as a terrorist.

While I have little time for terrorists (particularly of the islamic variety), the point is that when one looks at the new Australian Anti-terror laws, the accused bears the onus of proving that they did not do anything wrong, they must do this without any disclosure from the prosecution as to what they are presumptively guilty of, and without any knowledge as to the evidence held by the prosecution. This ain't Orwellian, this is pure Kafka

If you still feel confident enough that the Australian Judicial System is above board, in the presumption of innocence, in the right to a fair trial, etc. Please feel free to thumb your nose at Australian law.

I just don't want to have to say I told you so

Sauron - 5-5-2008 at 22:25

Viz the KNO3 case, you persist in the erroneous assumption that civil matters such as defamation have any bearing on criminal matters. Nor does Internet law, far from settled, apply. The order was made via the Internet. The red P was not delivered via the Internet, it was delivered by post or common carrier. Contract law has nothing to do with it.

It is likely that in every instance the shipment of red P from UK to US is not a crime under UK law, and hence not an extradictable offense. The conspiracy charge, however is a UK offense as well, and therefore is extradictable. The question is whether or not the Scottish court will restrict the ability of the US Justice Dept to prosecute these folks on the non-extradictable counts, once they are in US jurisdiction on the conspiracy charge. And that is an issue that speaks to the extradition treaty (amended).

Don't get OT and start injecting terrorism cases. I am not one who supports playing cops and crims with terrorists. Terrorists seek to destroy society, and place themselves outside the law. So as far as I am concerned they ought to be dealt with extrajudicially - whack them and be done. Anything else is a waste of time.

LSD25 - 5-5-2008 at 22:50

Read the indictment... One of the principle charges is that the operator's of KNO3 did import said chemicals into the USA. This is not my take on the same, it is what is in the indictment, not as a limb of the alleged conspiracy but as a freestanding count. I fail to see any way this could be supported without reference to the recent case law on publication and the internet, because at no time could it be said, in the absence of the same, that the KNO3 defendant's were in any way, shape or form, engaged in the importation of anything into the Continental United States.

Personally, and it pains me to say this, I agree with you vis-a-vis terrorists, they wish to see Allah, I would be more than happy to arrange the meeting. What scares me is the extent to which these powers are now being extended to other areas of policing. Without getting into Diceyan theory, this is beginning to look less like the common law and rather more like Droit Administratif (which I believe you described above).

As to the intersection of criminal law and defamation, the principal is derived from the fact that the primary defence likely to be raised is a species of qualified privilege (freedom of speech), which is a defence in relation to both civil and criminal prosecutions arising from the actionable publication of material. Absent 1st Amendment jurisprudence, this is what the defence is viewed as, a species of qualified privilege - the publisher was under some obligation or acting in accordance with some right or freedom in publishing the information to some person or persons who had some correspondent duty, obligation, right or freedom to receive the same.

The difficulty, especially in the absence of 1st amendment jurisprudence, is that qualified privilege cannot exist where both the publication of the material and the receipt of the same is illegal, or specifically prohibited by law. I think you would probably understand this a little better, particularly with respect to the application or non-application of defamation defences to criminal prosecutions, especially where the publication is illegal, if you read the 'Spycatcher' case(s) and the more recent sequels to the same.

evil_lurker - 5-5-2008 at 22:58

Well by no means am I an expert in law, in this country or otherwise.

All that I do know, is that in the USA you are presumed guilty until you can post bail money up until the court reaches a verdict. And, that drug "sting" operations, which I and most of the population would deem "entrapment" is par for the course with law enforcement and furthermore sanctioned by the courts... I would even go as far as to say that is their primary modus operendi.

The thing which was once known as "privacy" no longer exists, having been slowly whittled away by court rulings and new laws such as the Patriot Act... privacy has essentially been replaced with anominity simply because there is not enough people to dig thru the mountains of information contained in countless databases.

Bitch if you want to, but thats the way it works. You can tell that to the 1 in 100 adult americans currently behind prison or jail bars or if you lump all the justice system together the other approximate 1 in 30 that are currently behind bars, on probation, or parole.

The costs of the american justic system are staggering. Lets say it costs approximately $35,000 per year on average to house an inmate. If on average 1 in 100 adults of the population are incarcerated, that comes out to around $350 (probably somewhat less considering fines and what not) each adult taxpayer has to shell out to maintain the prison system.

Give it another 5 or 6 years of massive deficit spending, a collapsed economy, huge national debt and I bet the USA will start reducing sentencing guidlines and/or see the return of federal parol and "safety valve" releases.

Sauron - 5-5-2008 at 23:31

Just because you choose to callsomething entrapment does not make it entrapment. Entrapment has specific and rather narrow meaning in law. Lots of people scream entrapment without knowing what entrapment is and is not.

LSD25, I think the language is "case(d) to be imported into the United States" and that has nothing to do with the Internet or Internet case law, recent or otherwise. Nor contracts law. They shipped contraband to the US. They shipped a LOT of contraband to the US MANY TIMEs to the tune of c.$450,000. They allegedly knew that the contraband red P was going to be used for making meth, they were in possession of articles on such use. So any claim that they were selling pyrotechnics hobby materials and were ignorant of drug applications is at best feeble. God only knows what telephone conversations were recorded (lawfully) and what testimony will be introduced by coconspirators turned government witnesses (to get themselves off the hook or plea bargained.) But make no mistake about it. These people are in deep shit and the case will not turn on distance-sales business law, Internet law, contracts law, or anything else but the US Criminal Code and the Code of Federal Regulations and the criminal case law surrounding similar cases in the past.

LSD25 - 6-5-2008 at 02:04

Rather disingenius, even obfuscatory, reply for mine - of course the case, once they are extradited to the United States, will turn on the criminal law of the United States, that is hardly the point and quite frankly, is pretty much precisely what I was warning against if you read the original statement and the first reply.

The basic premise of what I was saying was not that criminal conduct would be measured by something other than the ordinary criminal law of the relevant jurisdiction, but rather went to which jurisdiction could assert 'ownership' of conduct which was not criminal in some other jurisdiction (such as the geographical location in which the conduct took place).

The issue is that similarly to the suggested problem, they engaged in an activity which was not illegal in the UK - namely the export of pyrotechnic supplies - without recourse to the law of conspiracy, which is not at issue in this aspect of the case - and are consequently charged not with the legal export of a chemical from one jurisdiction but the illegal import of the same into another jurisdiction, despite there being no evidence that they ever exerted or attempted to exert control over the same in that jurisdiction.

While the link between the KNO3 case and internet publication law may be somewhat too tenuous for you to see in this context, although I am willing to suggest that it will most certainly be prominent, surely the law relating to the publication of material on the internet being held to have occured wherever such material is accessed and/or downloaded is somewhat more easily linked to the publication of material on the internet?

Now, what happens when both the publication and the access are illegal in the place where the access takes place? The publication, which is illegal, is deemed to have taken place in that jurisdiction, surely this is not too complex for you? Thus the publisher (the forum and the administrator's thereof once they are able to be held to have been aware of the existence of the same) is liable for the illegal publication of material and allowing access to the same in a jurisdiction other than the one they are in.

The USA/UK both have very cosy extradition treaties with Australia and extradition is almost assured. This is because a publisher is taken to be aware of the reach of the medium in which the publication took place and to have intended to have published the material in the jurisdictions in which it was published, thus they are taken to have intended to be subject to the laws of those jurisdictions (the majority opinion in Berezovsky v Forbes & Gutnick v Dow Jones are both on point in this respect).

Freedom of speech in countries without Constitutional protection of the same is a far lesser protection than it is in the USA, and is of no value whatsoever when it can be shown that both the publication and the receipt of the information is specifically prohibited by law (laws are prima facie manifestations of the public interest, thus things done contrary to the same are ipso facto contrary to the public interest).

This is not complex legal theory, it is fairly straightforward, the application of the law to the facts. This is the difficulty posed by multi-jurisdictional publications such as the internet facilitates. The degree of argument before the High Court of Australia in Gutnick v Dow Jones (they allowed numerous other parties to intervene) suggests that the High Court will be less than willing to revisit the correctness or otherwise of their decision in the near future.

By the way, the issue the topic was originally aimed at - the use of requests for information as a means of gianing evidence of an offence committed solely because of the original solicitation of the same by police, is entrapment and falls well within the legal definition of the same.

Sauron - 6-5-2008 at 03:35

Bullshit. Have you been retained to write a brief for the defense? Why are you characterizing red P as "pyrotechnic supplies" when it is obvious that they KNEW that the buyers were overwhelmingly engaging in methamphetamine production? I'd be surprised if more than a trivial percentage of their red P sales were for any other purpose. To maintain otherwise is simple dunderheaded. You can't rack up $450,000 of sales of red P at outrageous prices for "pyrotechnic purposes" but you can, and they did, for drug cookery. Frankly I have no sympathy for them at all, and hope they rot in prison for a good long while. They DESERVE to.

Their business depended on red P being proscribed in USA, if it was not, and freely available at ordinary prices, NO ONE would have bought any red P at inflated prices from a UK seller and paid transatlantic shipping. NO ONE.

So stop with the hearts and flowers. These people thought they were legally untouchable by Uncle Sam and that John Bull would embrace and protect them. THEY WERE MISTAKEN.

Your "legal theories" hold water about as well as a coarse sieve. You are attempting to raise the specter of a draconian prosecutorial ability by Australia to pluck Americans from their hearths and homes and do them for "thought crimes" in Oz, but the extradition treaty between US and Australia also requires that the crime be a crime under US law, which in regard to possession or publication of information CANNOT be so.

So your chimerical legal bogeyman evaporates.

You don't seem to appreciate that the silly-ass Aussie law you cite makes libraries, publishers of scientific and technical references and journals, government patent offices including Australia's own, universities, and so on, liable, criminally, because all of those publish instructions on how to make controlled substances, and have done for a hundred years and more. The Australian prisons will be crowded, and the court dockets backed up, won't they? Who's first? Wiley? RSC? The ACS? The Library of Congress of the US Patent & Trademark Office? Elsevier? Thieme? Come ONB. Your cute little Ozzie legal fiction is not worth the peper and ink. It is STUPID.

By the way I do not believe there is a single paragraph you have written in this entire thread that is not disingenuous and obfuscatory.

I am wondering if you ever take a breath that is not disingenuous and obfuscatory.

I am through bandying words with you. It is a waste of time.

[Edited on 6-5-2008 by Sauron]

[Edited on 6-5-2008 by Sauron]

MagicJigPipe - 6-5-2008 at 06:34

Quote:
which in regard to possession or publication of information CANNOT be so.


Yes, constitutionally. But take into consideration the direction that abiding by the constitution is headed. IMO, the fact that firearms must now have a "sporting purpose" is proof. Not to mention the abuses in the PATRIOT Act.
Quote:
Frankly I have no sympathy for them at all, and hope they rot in prison for a good long while. They DESERVE to.


I disagree. But then again I don't believe someone should "rot in prison for a long time" unless they murder, rape or maim another human being. I don't consider selling drug precursors, even for the purpose of manufacturing said drugs, one of those three things. Because, ultimately, it is the drug abuser's choice of whether or not to use the drugs and thus possibly destroy his life. We don't hold Anheuser-Bush or Glock (although some try) accountable for deaths related to their products even though they are much higher for alcohol and firearms than methamphetamine. The sentence should fit the crime. And IMO, the sentences in the case of methamphetamine are overinflated.

Besides it being illegal (jaywalking is illegal) what is the logical basis we have for throwing drug manufacturers in jail and throwing away the key? Is it that they (in a roundabout way that technically, should be the user's fault) destroy people's lives? Okay, well, so does alcohol and tobacco and to a greater extent, so we obviously can't use that argument. So, what is it?

I don't mean to stand up for drug manufacturers but what's right is right and I will always stand on the side of logic instead of emotion.

My emotions say to throw all the meth cooks in a giant hole. Logic, however, tells me they should be treated no different then big alcohol or tobacco. I mean there's a pharmaceutical company that makes methamphetamine. What if a person were to destroy their lives with their product, would they be liable? (Rheotorical question. I know they won't be because it's not illegal. I'm talking beyond what is illegal and legal. What makes sense.) Or what about the many people who destroy their lives with adderall (prescription amphetamine, I have seen this almost as often as methamphetamine life destruction)? When do we start throwing the CEOs of these companies in jail?


[Edited on 5-6-2008 by MagicJigPipe]

Pulverulescent - 6-5-2008 at 08:01

Quote:
Logic, however, tells me they should be treated no different then big alcohol or tobacco.


MJP, you've brought us right to the rotten core of prohibitions on substances which are used for recreational purposes!

They're fundamentally illogical, and based partially on some kind of dubious religious moral ground which stands very little scrutiny.

As long as drug cooks don't set out to actually poison people they're doing nothing wrong, as far as I'm concerned.

At least the WOT has some legitimacy, give that 9/11 did happen.

The WOD is an ongoing tradegy for millions of people!


P

Polverone - 6-5-2008 at 08:31

It looks like this is turning into a broad politics thread. I have many legal/political grievances too but I decided some time ago that Sciencemadness is not served by airing them here. Please start a fresh thread if there is a sub-topic of relevance to hobby chemists that merits further discussion.