Barclays Tax Avoidance Horse Bolts, Then Judge Shuts Stable Door

NO HORSE HERE

Mr Justice Blake thinks that the documents Barclays does not want you to see are still sufficiently difficult to find that they have not yet lost all confidentiality. Well, I'm a slow typist and it took less than 60 seconds. Mind you, when you start trying to read them you wish you had not found them. They use an especially effective cryptogram. They are written in mind numbingly boring jargon so that only the most dedicated investigative reporters will stay awake long enough to penetrate to the heart of any wrongdoing the documents may reveal. I have not the patience. Of course, Barclays say that there is no wrongdoing to be found. Well, that explains why they woke the first judge at 2:30 am in the morning to try to suppress publication then.

Part-Time Employment Judge Behaves "Scandalously"

The Claimant in this case was represented by his wife who is a solicitor. See the title link. She is also a part-time employment judge. It was a claim before an employment tribunal.

Many of you may think that she should not have taken the case. If a lawyer acting for himself has a fool for a client then maybe a husband who instructs his wife to act for him has a fool for a lawyer.

It gets worse. Although the Employment Appeal Tribunal allowed the husband's appeal against the employment judge's decision to strike out his claim it did not disturb the finding that Ms Singleton was guilty of scandalous and unreasonable conduct.

He did not disturb the finding that Ms Singleton had fabricated an attendance note downplaying her and her husband's attempts to "blackmail" the defendants by threatening to put in the public domain documents that could show the defendants were guilty of defrauding the revenue in order to achieve a better settlement figure than the husband might be entitled to.

Well, the allegations are now in the public domain so the defendants will probably be investigated by the revenue anyway. However, the fraud allegations cannot be used against the defendants by the husband in the tribunal proceedings.

The successful appeal may still be a Pyrrhic victory for the husband, at least in respect of global family finances:

In light of the findings against Ms Singleton of scandalous and unreasonable conduct, which I have upheld, and in the light of the fact that she holds a position as a part time Chairman I direct that the decision and reasons of the Employment Tribunal and this judgment shall be referred to the President of Tribunals for him to consider what, if any, further action to take in respect of those matters.

It is difficult to be certain who Ms Singleton is (there are 9 female solicitors of that surname registered with the Law Society) but it may be the Ms Singleton who works for Eatons, the firm that instructed Counsel on the appeal. She lists employment law as an area of expertise. Her Law Society listing is here. If I have leapt to the wrong conclusion I will of course immediately delete or amend this post upon being notified of that fact.

The Great British Menu 2008: Exemplary Sportsmanship

THE JUDGES

I admit that I was addicted to The Great British Menu. What attracted me was not, however, the cooking.

I loved the cooking. I wish the winners would come around to my house and cook me the winning dishes.

Something impressed me more than the cooking.

These chefs were engaged in a heavy competitive exercise. It was just as competitive as a high level sport.

Yet, they HELPED each other. If one of them experienced a difficulty, THERE WAS ALWAYS SOMEONE WHO WOULD HELP THEM.

These guys are to be applauded for their humanity and sportsmanship.

We cannot now refer to cricket as a game that is conducted with an exemplary reference to a moral code but we can say that our chefs represent a league of true gentlemen.

They played hard and they never cheated. If an opponent fell, they helped him up. They did not want to win by fair means or foul. They only wanted to win fairly.

I applaud all of them.

Mr Justice Collins Strikes Blow Against UK Government's Assumption Of Dictatorial Power

See my previous post Terror Or Freedom? commenting on The Times' prediction that Mr Justice Collins was about to deliver another body blow to the UK government's draconian anti-terror laws. They were right: see the title link.

Let me make it clear. I have no quarrel with very strict anti-terror laws. There are only two provisos. The laws must be (a) proper laws approved by Parliament and (b) in accordance with fundamental human rights.

Mr Justice Collins, I think, agrees. I do not suggest that he agrees with any other of my comments.

It is simply wrong that by executive action the government can freeze assets on the basis of undisclosed information and provide no effective avenue of appeal. This is such a fundamental breach of the rule of law that such actions are insupportable in a society that professes itself to be democratic and free.

The imposition in this way of such laws is characteristic of a dictatorship not a democracy. If the court's were to countenance laws of this kind they would be acquiescing, at the very least, in government by an oligarchy.

Thus any appeal must fail. If it does not then democracy has been abolished in this country.

Terror or Freedom?

The Times reports today that the High Court is about to deliver a new blow on terror to the government. See the title link.

I hope they are right. According to the article in The Times:

The government has used subordinate legislation to deny terrorist suspects the right to get legal advice, make them apply to the executive for £10 a week expenses (pardon? are we trying to starve them to death?), restricted their right of appeal to an appeal to the body that made the original decision and denied them access to any information that would enable them to establish grounds for an appeal.

Has it really gone this far?

It also seems that these truly draconian rules have been brought into force without being debated in parliament.

I almost refuse to believe that any Uk government would descend into this Stasi nightmare. I assume that The Times is not making it up, however.

Da Vinci Judge Mr Justice Peter Smith Reprimanded

Mr Justice Peter Smith, most famous for inserting his own coded message into his judgment in the Da Vinci Code case, is reported today to have been reprimanded for his refusal to step down as judge in another case for apparent bias.

He may feel he has got off lightly. He potentially faced being stripped of his office as a High Court judge.

The other case was Howell & others v Lees & others. The Claimant/Appellant were represented by Addleshaw Goddard. The judge had been in negotiations with that firm to go and work for them but had eventually been turned down. He had been a bit upset by this and thus they argued that he might be biased against their client in the Howell case.

You may well wish to read the whole of the email correspondence but here is a small extract:

"I feel you have wasted my time for several months. I am extremely disappointed because contrary to your fine words you have allowed the bean counters to prevail. I am not very impressed with you or your firm at the moment and I do not think the tone of your emails enhances the position."

More extraordinary were his exchanges with Mr Crampin in the court below. The extracts cited in the Court of Appeal judgment are quite lengthy and I recommend reading the full CA judgment. It will be an entertaining read even if you are not a lawyer.

Here is a short one:

"MR CRAMPIN: Having had an unsuccessful discussion or negotiation with Addleshaws, your lordship expressed yourself in strong – intemperate, almost -- anguish.

MR JUSTICE PETER SMITH: Nonsense. I don't know what part of the country you come from, Mr Crampin, but it's about time you grew up. If you think that's intemperate, then you are on another planet from me. If you thought it was intemperate, then you should have seen the correspondence which didn't trouble Mr Twigden.

MR CRAMPIN: I'm endeavouring to make a submission, not to engage with your Lordship in badinage of that kind. The question that a fair-minded person –

MR JUSTICE PETER SMITH: I'm challenging you, Mr Crampin, on your analysis, when you suggest that my correspondence was intemperate. I don't accept that."

Oh, it gets better; or, worse, depending upon your point of view.

The Court of Appeal decision was unanimous.

FURTHER READING:

Mr Justice Peter Smith's Da Vinci Decision. He was upheld on appeal.

The Oxford Coroner Andrew Walker And Jason Smith

I promised in a previous post (Who Will Rid Me Of This Turbulent Priest?) to provide an update on the brave Oxford Coroner and his right to criticise the government, when the judgment became available. It now is, at the title link.

The following extracts give the flavour of the reasoning of Mr Justice Collins:

"Ms Moore [for the Secretary for Defence] submitted that it was impossible to afford to soldiers who were on active service outside their bases the benefits of the Human Rights Act. If the Act was to apply, it had to apply in all aspects. The circumstances of any particular case will determine whether an Article is breached. I am concerned with Article 2. This reads, so far as material:-

"1. Everyone's right to life shall be protected by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection." ..."

He then referred to the difficulty of imposing human rights obligations in battle conditions and went on:

"But the soldier does not lose all protection simply because he is in hostile territory carrying out dangerous operations. Thus, for example, to send a soldier out on patrol or, indeed, into battle with defective equipment could constitute a breach of Article 2. If I may take a historical illustration, the failures of the commissariat and the failures to provide any adequate medical attention in the Crimean War would whereas the Charge of the Light Brigade would not be regarded as a possible breach of Article 2. So the protection of Article 2 is capable of extending to a member of the armed forces wherever he or she may be; whether it does will depend on the circumstances of the particular case. ..."

"It was common ground that the circumstances of Private Smith's death gave rise to concerns that there may have been a failure by the army to provide an adequate system to protect his life. Thus the Middleton approach to the inquest, namely that in deciding how the deceased met his death, the coroner should consider in what circumstances death resulted, should prevail. On the last day of the inquest, the coroner asked for argument whether the evidence justified a finding that there was even arguably a breach of Article 2. He decided that no such finding was justified. It seems he thought that a conclusion on this was needed since it would dictate the contents and form of the verdict he would announce.

In my view, he was wrong to entertain the argument. The procedural obligation under Article 2 was to hold the necessary inquiry and to find the necessary facts. If those facts showed that there was no breach of the substantive obligation and that nothing different need be done in the future to protect life, that should be indicated by the verdict. The family needed to know what were the conclusions on the important issues. Thus the inquest is not the means whereby a substantive breach of Article 2 is to be established – indeed, as will become apparent, a verdict which appeared to determine this would be likely to be contrary to Rule 42(b) of the Coroners Rules 1984. It is to decide by what means and in what circumstances the deceased met his death. ..."

He then referred to the European Court of Human Rights key decisions and in particular quoted from Jordan in the House of Lords:

"The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard."

He concluded that a coroner must be entitled to conduct an effective investigation in compliance with the above.

The conclusion of Andrew Walker which the Ministry of Defence attacked was that:

"On the 13th August 2003 Jason George Smith was on active service when found suffering with heatstroke at the Al Amarah stadium where he was stationed. He was taken to a medical centre at Abu Naji Camp where he died. Jason George Smith's death was caused by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate."

He went on to summarise the MOD attack and to further conclude:

"While there was a somewhat faint argument that the word 'failure' was undesirable, the real attack by Ms Moore was directed at the adjective 'serious'. It is obvious that there is some tension between the prohibition contained in Rule 42(b) and the need for an Article 2 inquest to identify those responsible and shortcomings so that they can be remedied for the future to avoid similar deaths. Section 8(3)(d) of the 1988 Act, which requires a jury if the continuance or possible recurrence of the circumstances in which the death occurred is prejudicial to the health or safety of members of the public, creates its own tension since there must be examination of and findings in relation to any shortcomings which led to the death and which may need to be addressed."

In a final (itself robust) attack Mr Justice Collins stated clearly that a coroner is entitled to be robust (trenchant, perhaps, or even, severe) when making his findings:

"Ms Moore submits that a verdict which speaks of a failure is in danger of transgressing Rule 42(b) and the addition of the adjective serious crosses the line. It is, she says, not neutral but pejorative. But the coroner was recording the evidence of witnesses and concluding that that evidence was accepted. Ms Moore accepts that he would have been entitled to record that acts or omissions existed which were directly relevant to the cause of death. To identify them would have had much the same effect as describing them as failures. The prohibition is against framing a verdict in such a way as to appear to determine any question of civil liability. The word determine is important; a finding that there was a failure to act in a particular way does not appear to determine a question of civil liability. It no doubt will assist a potential claimant, but it is the evidence which is elicited which will in the end be material, not the verdict of the coroner or the jury. No doubt, assertions that there has been a breach of a duty of care or that there was negligence should be avoided, but I do not think that findings of fact, however robustly stated, can be forbidden."

Thus the MOD and its silly minister Des Browne were swatted down and effectively held up to ridicule for their breaches of human rights and their pathetic attempt to defend them.

I now hear that the coroner will not be reappointed. More tomorrow.

Who WIll Rid Me Of This Turbulent Priest?

CORONER ANDREW WALKER

The Ministry of Defence aka Des Browne tried to gag coroner Andrew Walker and stop him from criticising the government of the UK from sending ill-equipped soldiers on virtual suicide missions.

The High Court, in the person of Mr Justice Collins, has told the government that they are a shoddy bunch of toe rags and, if they want to silence the heroic Mr Walker, they had better send out a posse of knights with big swords.

More when I have read the judgment.

Hang 'em High

Another victim:

SOPHIE LANCASTER

"Sophie, 20, was booted in the face and left in a coma as she tried to protect Robert Maltby, 21, during the “totally unprovoked” attack in a park.

The couple were so badly beaten that medics and police could not tell which was which as they lay side by side unconscious in a pool of blood."

Another victim:

DAVID MORLEY

"Mr Whitehead described lying on the pavement and putting his hands around his head while he was kicked and punched in the ribs and head.

He told the court one of his assailants "seemed to be getting enjoyment" out of it and was smiling or laughing.

He described looking over to see Mr Morley sat against hoardings near the bench.

"A girl ran up and kicked his head like a football. There was only the girl when I saw him. She went over to David. She pulled her foot back and was kicking him like a football very hard to the head two or three times.""

WHAT THE LEGAL PROFESSION IS DOING ABOUT IT:

OUR MAJOR ISSUE: FISHNETS?

"In the case of fishnet tights versus office decorum, the jury was most certainly out yesterday.

A law firm's decision to ban women wearing fishnets to work has left lawyers as neatly divided as a divorcing millionaire's fortune.

The unidentified firm has decreed that female lawyers in fishnets distract male colleagues and look unprofessional".

AND WHAT THE JUDGES ARE DOING:

Mr Justice Coleridge blames youth crime, child abuse, drug addiction and binge-drinking on the "meltdown" of relations between parents and children.

He warns that the collapse of the family unit is a threat to the nation as bad as terrorism, crime, drugs or global warming.

And:

"He will say: "Almost all society's ills can be traced directly to the collapse of family life. We all know it. Examine the background of almost every child in the care system or the youth justice system and you will discover a broken family.

"Ditto the drug addict. Ditto the binge drinker. Ditto those children who are truanting or who cannot behave at school.

"Scratch the surface of these cases and you invariably find a miserable family, overseen by a dysfunctional and fractured parental relationship - or none at all."

Calling for action before it is too late, the judge will say family breakdown is as serious as global warming."

IS HE RIGHT?

Burrell the Butler is Back

Diana & Butler Burrell

“I told the truth as far as I could - but I didn't tell the whole truth. Perjury is not a nice thing to have to contemplate. I was very naughty and I made a couple of red herrings, and I couldn't help doing it.”

Is Mr Burrell saving it for his sequel?

Scott Baker LJ has catapulted that and the butler will be in contempt if he does not now comply with the order to return and explain himself. Silly man, Mr Burrell but will anyone believe his new evidence if he does reveal his "secrets"? Does he have any "secrets" to reveal? Or, is he just addicted to the fame which comes with the fact that he pretends to have "secrets" to reveal?

Again, I applaud Scott Baker LJ for sensible case management. The establishment figures who wanted the matter withdrawn from the jury ought, if they had any registerable IQs, to be joining in that applause.

Sensible Judge Lets The Diana Inquest Farce Continue

Scott Baker LJ

“These inquests, which are an inquiry into two deaths, are being heard by a jury following the decision of the Divisional Court, and they will continue to be heard by the jury, which in due course will return its verdicts,” the coroner told the hearings in the presence of the jury. “I remind everyone, as I have before, that the jury decides the case on the evidence it hears in court and on nothing else. Comments that are made outside the court, often about a limited aspect of the evidence, may render the maker or publisher liable to contempt of court. I again urge great care that nothing is said, written or published that may influence the jury."

Scott Baker LJ made this extremely sensible ruling following rather silly establishment calls to end the Diana inquest farce.

It may have cost a lot of money but imagine what would have happened if the case had been stopped and withdrawn from the jury.

Fayed has said he will abide by the jury's decision. He may not mean it but he has said it and it is on record.

You can be assured that stopping the case at this stage would have given him the green light to pursue his conspiracy theories all the more relentlessly and at ever increasing cost to the taxpayer. He may still do so but we need a jury verdict to have any chance of ending this.

Professor Gary Slapper's Weird Cases

Professor Slapper's column in The Times is always fun. Here are some recent additions with short extracts:

Assault by Handshake

Having just lost a criminal case in which she defended her husband, Kathy Brewer Rentas, an American media litigation lawyer, has been charged with assault for allegedly shaking the prosecutor's hand so vigorously that she injured the woman's shoulder.

There is a comment at the end of Professor Slapper's article concerning barristers not shaking hands with each other. I am a solicitor and was always told that I should not shake hands with a barrister (or he/she would decline to shake my hand) because I might be passing him or her a bribe. In fact, all of the many barristers I have instructed have been only too happy (indeed, eager) to shake my hand. Reflecting on this, as occasioned by Professor Slapper's article, I do wonder whether I have been deficient in the provision of bribes.

Judges at War

The hearing has involved a jaw-dropping sequence of testimony in which senior judges have accused each other of being “volatile” and “schizoid”, of lying, having hotel sex with court employees, and of threatening behaviour.

And these are the people who criticise me for forgetting to turn off my mobile telephone? Ok, it was playing Bob Marley's "No Woman, No Cry". Ok, it was an Employment Tribunal. Ok, no-one told me off. In fact, everyone had a quiet smile or, at most, a minor titter. I fumbled hopelessly but eventually succeeded in turning the thing off. That would appear to be the difference between here and America. Our judges stand on ceremony when it is really necessary but not when it is simply a matter of their "personal dignity."

Is this a Person?

Courts sometimes have to make difficult decisions about whether something is in a legal category. Is, for instance, a sawn-off piano leg an offensive weapon? Sometimes even human categories can be a challenge. Is a woman married if, after she and her partner have said “I do” at their wedding, she stops the ring going fully on her finger and runs out shouting that she’s changed her mind? An Australian court in 1953 said yes, and that, wait for it, Mrs Quick was married to Mr Quick.

But new ground was broken recently when the Supreme Court of Austria was asked to rule that Matthew Hiasl Pan is a person. That sounds easy enough for even an inexperienced lawyer. But the challenge was that Matthew is a chimpanzee.

World's Most Litigious Men

Omorotu Francis Ayovuare, a Nigerian-born surveyor, is apparently Britain’s most litigious man. By 2003, he had clocked up 82 race discrimination claims, and won only two of them. In the US, Billy Roy Tyler from Nebraska claims to be the “greatest writ-writer in the world”. He has sued everyone from his neighbour to the Governor. In the 1990s, he issued proceedings in 113 federal cases during one two-year period.

But both have been trumped by Taso Hadijiev, 74, and his brother Asen, 75, from Malka Arda in Bulgaria. They began suing each other in 1968 in a dispute about a land inheritance from their parents. They are still at it, and have now litigated over 200 times.

Fired For Not Smoking

The company laid off three non-smokers and said it would not be hiring any more people who don’t smoke. "Smokers have always been our best employees. Non-smokers interfere with corporate peace,” Jensen said. "They just complained all the time about smoking, and I don't like grumblers.”

Every day across the world, people are told they are no longer wanted by their employers for all sorts of reasons. They’re too old, too young, too aggressive, absent from work after serial booze binges. But being sacked for refusing to smoke is not something heavily indexed in the law reports.

Battle Of The Trial Lawyers (reminiscent of a Monty Python Sketch)

The AAJ, however, has thought twice and has issued proceedings in Minneapolis in order to force TheATLA to drop the name, arguing that the existence of the old name was confusing AAJ members and infringing a trademark. The claim also demands that AAJ is awarded any money that TheATLA collects in membership dues, and —you guessed it — treble damages and attorneys' fees. The lawyers who argue the case will no doubt be very good: a trial lawyer whose client is composed of 56,000 other trial lawyers can expect some professional feedback.

Christmas In Court

The jolliness of Christmas works in almost all venues except courts. Courts can’t do jollity. Just before Christmas in 2000, at Luton magistrates’ court, a sullen convicted man was about to be sentenced for a property crime when the courtroom suddenly rang out to the tune Santa Claus is Coming to Town.

The magistrate awkwardly opened his jacket and began fiddling with his musical novelty Santa Claus tie. The courtroom was aghast. The man in the dock stood slack-jawed. The magistrate’s tie then burst into We Wish You a Merry Christmas before stopping, at which point the defendant was jailed for four months.

See my comment on mobile telephone usage above.

The Speeding Wheelchair

In England and Wales, we issue more than 1.5 million speeding tickets each year. The offence has a long history. The first person in Britain to be fined for speeding was the pioneer of the petrol-engine car, Walter Arnold. On January 27, 1896, when there were only 20 cars in Britain, Mr Arnold was driving through Paddock Wood in Kent at 8mph — four times the 2mph limit imposed for built-up areas by the Locomotive Act 1865.

Suing Your School

No law school can keep everyone happy. Sir John Mortimer, QC, creator of Rumpole of the Bailey, complained that as a student he found the law syllabus “enormously dull” and “spent as little time at it as possible”. But to actually sue your law school is entirely another matter. In 1965, a student brought a claim against the University of London alleging negligence against the law examiners, but was unable to persuade the Court of Appeal that he deserved better marks. The student represented himself but got the law wrong in arguing his case.

Justice By Coin Toss

Judicial coin flipping, though, isn’t unprecedented in America. “Is your client a gambling man?” Judge Alan Friess asked the lawyer of Jeffrey Jones at Manhattan Criminal Court in 1982. Jones had pleaded guilty to theft but had objected to a proposed 30-day jail sentence, saying 20 days would be fairer. The judge then asked a District Attorney for a 25 cent coin and ordered the defendant to flip it and call. Jones called tails, won, and got his 20 days.

20 Weird Cases In Brief

The Blurb:

"A meticulous collector of amusing and curious anecdotes from the world of law, Professor Gary Slapper's Case Notes column has long been a staple of The Times' Law section. His collection of legal oddities is on display in a new column, Weird Cases. As a taster, we asked him to select 20 of his favourite bizarre disputes, prosecutions and lawsuits from the archive."

Samples:

2. In 2005, a Brazilian woman sued her partner for failing to give her orgasms. The 31-year old woman from Jundiai asserted in her case that her 38-year old partner routinely ended sexual intercourse after he reached an orgasm. After a promising start the action ended in something of an anticlimax for the claimant when her case was rejected.

6. In 2005, Marina Bai, a Russian astrologer, sued NASA for £165 million for “disrupting the balance of the universe”. She claimed that the space agency’s Deep Impact space probe, which was due to hit a comet later that year to harvest material from the explosion, was a “terrorist act”. A Moscow court accepted Russian jurisdiction to hear the claim but it was eventually rejected.

8. In 2006, a young man from Jiaxing, near Shanghai, found himself in legal trouble after failing to take advice before putting his soul up for sale on an online auction site. The posting was eventually removed by the auctioneer and the seller was told that the advert would be reinstated only if he could produce written permission to sell his soul from “a higher authority”.

You will note that I did not get below 8 before I ran out of my self-imposed denying ordinance that I would only disclose 3 of 20. I also excluded no. 1 so you really must visit the above link.

The Judge Who Judged But Had No Judgment

Judge Lincoln Crawford

Family lawyers will be familiar with the kinds of behaviour exhibited by Judge Crawford in the course of his divorce.

He became obsessed. He therefore harrassed his wife. He spied on her. He resented her new partner. He resented any contact between his children and his wife's new partner. He abused them both. He took photographs. He was upset and hurt and therefore human. He felt his wife's abandonment of him justified any retaliation he inflicted on either of them.

He reacted as a human being and not as a Judge. His distinguished career may now be in danger. This helps no-one, least of all the children.

I feel great sympathy for Judge Crawford. I have been through the process (although many years ago and I got what would now be called a residence order in respect of my two children).

The tabloids will no doubt misreport it. I recommend you to read the court judgment instead. Just click the title to this post. You will find that the wife and her new partner were far from paragons of virtue. One Judge concluded that they were not entirely truthful (translation: they lied to a court) and it should be noted that the wife (Ms Bronwen Jenkins) is Head of Employment Law at Irwin Mitchell's London office.

Quiz Questions:

1) Why is the title to this post ambiguous?

2) Is a Judge necessarily disqualified from judging others because he fails to exercise good judgment in his personal life?

3) If the answer to 2 above is "yes", how many Judges would we have left?

4) How do you spell "judgment"?

The Judge's Underpants

In executing a breathtakingly brilliant strategy, worthy of the late George Carman QC, Sir Stephen Richard's leading counsel persuaded Sir Stephen to display his old briefs to the judge.

David Fisher QC asked the eminent Court of Appeal judge (all Court of Appeal judges are by definition eminent):

“In order to remove your penis when you’re wearing your Calvin Klein briefs, is it necessary to use one or two hands?”

To this the judge memorably replied:

“If I had a pee, I would use two hands. It is the natural way of doing it.”

This reply was, of course, fatal to the prosecution case that the judge had exposed his penis twice to a lady on the London underground.

Game, Set and Match!

I understand that the Crown Prosecution Service are immediately revising their training manual to include a completely rewritten version of the chapter on Resisting the Underpants Defence.

American defense lawyers have beseiged the UK solicitors actiing for Sir Stephen.

The Mysterious Case of the Exculpatory Letter: A Sherlock Holmes' Mystery

His appeal was not successful and it is not what this post is about. He doesn't look as if he had much personal hope in the first place. Both his wife and his mistress succeeded on their appeals, however.

This case involved an international conspiracy to supply crack cocaine. There have been many arrests in various jurisdictions and the Court Of Appeal recently heard 3 appeals and numerous other applications for leave to appeal by various UK based Defendants.

Those interested in the extent of the conspiracy and the underying facts can easily find that information on the internet or try the article in The Times: "Bling Bling Gang Jailed for up to 27 Years".

I am presently more interested by the Court of Appeal's choice not to investigate the existence or otherwise of an exculpatory letter allegedly written by the gang leader in the UK to the judge asserting the innocence of one co-defendant whose conviction was quashed on appeal.

The letter is dealt with in paragraph 47:

"We should add that there was also before the court an application by Anderson for an order for disclosure of a letter written by Dundas-Jones to the trial judge. Anderson's counsel understood from what had been said by HHJ King before he heard mitigation that the letter exculpated Anderson. As we have allowed her appeal without recourse to or reliance on the letter, the disclosure application is moot for the purposes of these appeal proceedings."

Anderson had already succeeded on her appeal because a prison custody officer gave evidence at the appeal of having overheard the following exchange between her and Dundas-Jones:

"Ian Dundas-Jones: 'Are you not talking to me?'

Nekeisha Anderson: 'I have been in custody 13 months because of you, if you had told me you were going to collect drugs I would not have gone. If you were a man you would tell the truth. All you are interested in is saving your own ass.'

[D-J] 'I should have told you, I am sorry.'

[A] 'You are only sorry you got caught, don't talk to me.'"

If she did not know about the drugs it followed that she was innocent. One only pauses to note that the very last thing he should have done was to have told her anything! That would have wrecked the appeal completely.

So, the letter does not matter? Not quite. She had to appeal and spent time in custody pending the hearing.

Before allowing Anderson's appeal the court had heard and determined Dundas-Jones's wife's appeal. This had been allowed on the quite different ground that her defence had been unfairly withdrawn from the jury by the judge or undermined by him in comments he made during her counsel's closing submissions.

That, it is suggested, may indicate a prosecution bias that coloured the judge's consideration of the exculpatory letter. True enough, Anderson was Dundas-Jone's mistress. However, he made no similar attempt on behalf of his wife and would not a wholly open minded judge have made some enquiry? If he did, we will never know. If he had, would the custody officer whose conscience later troubled tim so much have come forward earlier? We will never know that either.

The gang was a vicious one and long sentences for those who were guilty were entirely justified but it may be salutary for judges to consider that, when they have a large number of defendants before them, they must treat each individual separately and not give in to the temptation to tar them all with the same brush.

R v Dundas-Jones & Others

Mathematical Judges

Accountants might like this judgment. The rest of of us may remain baffled. The solution to the case was apparrently as follows:

"An = the stock at the end of week n;
Rn = the receipts during week n;
Pn = the payments during week n;
Dn = the discrepancy for week n (positive for a loss, negative for a gain);
Sn = the algebraic sum (i.e. the sum taking into account the sign, positive or negative) of the discrepancies for all relevant weeks up to and including week n;

then

Rn – Pn - (An – An-1) = Dn = Sn – Sn-1.

i.e.

Rn + An-1 + Sn-1 = Pn + An + Sn."

If you really want to study the case it is at:

Post Office v Lee