This blog is primarily focused on the law and legal matters but also deals with politics and current affairs. It will also contain posts relating to my main site and my novel in progress, Divorcing Reality.
The main site is not fully operational as yet but does contain the red squirrel lawyer joke which has been found so offensive by certain other lawyers.
Thursday, December 31, 2009
So, this is news? Bobbies Like a Bacon Sarnie? In a Nice Comfie Station? Instead of Going out in Nasty Cold Weather catching CRIMINALS.
FURIOUS POLICE ARREST JACK STRAW
A nice cup of tea and a bun as well, please.
“Some police officers - whatever they may say - actually enjoy staying in the police station in the warm. We are dealing with human beings, but we are also dealing with the kind of discipline and culture in the police service.”
Mr Straw added: “It is very striking around this country that if you go to one police force it is up for it, getting crime down and really motoring, while the adjacent force - serving very similar communities - has not got it together.
“It is not about money, it is about leadership, organisation and culture.”
The police are of course "furious", just like MPs were when their expenses were exposed to scrutiny.
It seems that it is not only Chris Keil who wants to post inane comments to the Hetty Baynes blog:
As there is no e-mail address to send you a discreet communication - I'm having to post it here on your site:
What you have written is very distressing and unprofessional and an outright defamation of character towards someone who has done nothing to deserve your venom.
I'm kindly asking you to remove them and request that you refrain from passing judgment on people or cases you know nothing about.
If this is truly a blog about legal matters - where are all the OTHER legal matters you are supposed to be 'commenting' on???? Funny isn't it that it is just this case you mention... Seems to me that you are acting on someone's behalf - sour grapes to say the least!
You do not need to be reminded what the consequences of libel are... Do you?
For reasons set out in the previous post I have not been checking up on this blog much recently. This is posted by another "Anonymous" (I will find you dear). I suppose that is because he or she wants to remain "discreet" or, possibly, not expose themself to ridicule. Too late!
1. No-one else has difficulty emailing me. Oh, alright, try going to The Firm.
2. You are either a very bad lawyer or a very badly advised lay person and clearly have no understanding of the law of defamation.
3. If you think this is a blog about one case then that can only be because you accessed one page. Either (a) you are fixated on Hetty Baynes and/or (b) you are Hetty Baynes and/or (c) you are off your rocker and/or (d) you are a perfectly nice sane human being who just had one too many on 17th September this year.
3. Sue me. Go on, I dare you. Your brain is addled.
4. Ooo! You can only sue me if YOU ARE HETTY BAYNES! Well, at least that would explain 2 above.
At last a picture of the outlaw Chris Keil, who wants this "sad fuck" to die.
Chris Keil posted nasty stuff about me. Fair enough. He is entitled to his opinion. This site is about nothing if it is not about free speech.
He just went too far when he said he wanted me to "die"
Do his readers know the contempt in which he holds them?
Do his readers know the contempt in which he holds free speech?
Do his readers know the contempt in which he holds the little man (as opposed to himself, who is obviously a very big man whose opinions command and deserve to command universal respect)?
That is not tonight's quiz. Rhetorical questions do not count. Here are the quiz questions.
QUIZ:
(1) Should I report Chris Keil to the police for inciting someone to use violence against me?
(2) Should I report Chris Keil to the police for impliedly threatening to kill me himself?
(3) Should I sue Chris Keil in the civil courts for defamation?
Partial, biased, hard-hitting electioneering, even if it merits the description "gutter politics", does not sustain an allegation of malice to found a cause of action for injurious falsehood; so held by the leading libel judge Mr Justice Eady in his judgment in the case of Quinton v Pierce, released on the internet today.
Clearly, this judgment only applies to politicians and could be justified on the basis that if you want to participate in a dirty game do not expect normal rules of civilized behaviour to apply and certainly do not expect your opponents to treat you with any civility. Lie down with dogs, get up with fleas.
To put that in latin (which we lawyers are no longer supposed to do): the defence could have been volenti non fit injuria or, going back to English, if you go into politics you are consenting to being traduced, vilified, blackguarded, having your character trailed through the gutter, your expenses questioned, your every word, act, omission etc. subjected to the utmost scrutiny, generally being booed and hissed at as if you were a pantomime villain (even, in those rare cases, where you are not) etc. etc. and you will have no right to complain because you knew what you were getting into you pathetic little moron.
Well, that is the ratio decidendi of the decision as far as I am concerned.
An amusing story from Gary Slapper of The Times concerns the abandonment of criminal trials at Bristol Crown Court because the smell of garlic was spreading around the court building. Visit the title link.
This is a particularly stupid defence to run. The best it will get you is an adjournment.
If you are exposed as the garlic deployer's friend you will cast doubt on your credibility and may destroy any other available defence you have. But then, lots of criminals are stupid. That is why they are criminals.
On the other hand, some criminals are clever and never get caught. This just supports two cardinal principles that prosecutors and governments need to keep at the forefront of their minds. They are:
(1) Probability of detection rather than harsh sentencing is the primary deterrent.
(2) Confiscation of the proceeds of crime should be the primary punishment.
Therefore, focus on better policing (more intelligent, better qualified, properly funded) and increase the penalties for failing to satisfy a confiscation order; perhaps, discounting the retributive part of the sentence and applying a percentage uplift to the criminal gain.
The really interesting thing you will find in Gary Slapper's article is the exclusion of a barrister from court for wearing perfume. OK, it was the 60's.
The notorious lay represenative of fathers in the English courts has been at it again. And this time it is not about contact with the father's children. It's about filthy lucre.
Well, I suppose Dr P is entitled to earn a crust.
The answer to the title question is: No, not a lot really. In fact, if you consider cases that he has been involved in (including his own sorry dispute with his ex-wife) he damages fathers and their relations with their children.
It is not simply that he gets up the noses of judges. He does that, however. He does it with such skill and alacrity that I sometimes think that he wants to lose.
If you are really tempted by having Dr Pelling represent you then you should first of all read the judgment in his latest debacle. You will quickly change your mind.
It is G v A and it becomes compelling reading at about paragraph 100.
For instance, would you really want your advocate to send in a written comment on the judgment as follows:
"In fairness to [the father] I would ask the reason why the cheque was stopped be stated. It was stopped on Dr Pelling's advice who drew [the father's] attention to the stated purpose of the £20000, for the mother's cost of moving, … , and pointed out that no move of the mother was on the horizon and that of course the problems of the settlement deed etc had not been resolved so the move was not going to take place in the near future. It was not reasonable to pay under those circumstances, especially as the Order made no provision for what would happen to the money if the move was not taking place, and on the mother's record there was real concern it would just be spent improperly and dissipated. It is not fair to [the father] as a businessman of probity to damn him in a judgment as a person who stops cheques when he owes money, which prima facie does not enhance reputation. [The father] cannot publicly reply to such aspersions because of the anonymisation (which does not guarantee that [he] will not become known to some people as the A in question)."
Mr Justice Munby saw that one coming:
I am content to record Dr Pelling's comments but they hardly seem to assist the father. The facts as I set them out in paragraph [6] are not disputed; nor could they be. The fact is that the father stopped the cheque in December 2006, at a time when his appeal against the District Judge's order stood dismissed, when the stay had long since been lifted and long before he made his application to the court on 15 June 2007. The fact is that when he stopped the cheque he owed the money. The fact, as now appears, that the father acted on the advice of Dr Pelling can hardly assist him; it merely throws an interesting light on Dr Pelling's approach to orders of the court.
As a lawyer, I naturally advise you to pay attention to orders of the court. If you want to take the advice of Dr Pelling then feel free to do so. If the advice, in the end, does not work out entirely costs neutral (financially or emotionally) then I am sure that Dr Pelling's insurance will cover you. Please check with him first, however.
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.
I am conscious of the need for a sub-editor to work on a title such as the above but read this...
Trent Strategic Health Authority* has been held guilty by the House of Lords of ruining Mr and Mrs Jain's nursing home business and causing them "serious economic harm" on the basis of a "without notice application that ought never to have been made".
[*Note: Trent's liability arises as successor to the Nottingham Health Authority, as is made clear in the judgments. But "they inherit any liability incurred by their predecessors". ]
Yet, Mr and Mrs Jain have no redress under English domestic law and will receive no compensation.
All of the law lords expressed great sympathy for the Jains and reached this second conclusion "with regret" for their "undeserved fate".
Many will be be of the view that where a government established body causes financial ruin to those subject to its authority AND is found to have behaved wholly improperly BUT its victims have no remedy THEN it follows that:
(a) something has gone badly wrong with the law; and
(b) a serious injustice has been allowed by the law to happen.
This is simply a logical proposition based on underlying assumptions concerning morality and justice. The assumptions are shared by most who live in democratic societies (of whatever religion or none). Such people may struggle to understand this decision but only if they are not also lawyers. We lot are used to the discordance between the law on one hand and justice on the other. It's one of the things that get us a bad name.
You should read the judgments by following the title link if you want to see how this discordance occurs.
Let us look at what Trent did (this is paragraphs 6-9 of the judgment of Lord Scott of Foscote):
"6. Mr and Mrs Jain's only recourse was to appeal to a Registered Homes Tribunal. This they did. But there was no procedure available for an expedited appeal and no procedure enabling a stay of the magistrate's order pending an appeal to be obtained. We were told that the procedures under which appeals to a Registered Homes Tribunal can be made lead to a minimum delay of six weeks before an appeal can be heard. In the event, Mr and Mrs Jain's appeal was not heard until February 1999, over four months after the order had been made, and, not surprisingly, by the time the appeal was heard irrevocable damage had already been done to their nursing home business, with an adverse knock-on effect on other assets that they owned.
7. The appeal, heard by the Tribunal on 8 and 9 February 1999, was a resounding success. But the success came too late to afford them more than the satisfaction of vindication. The Tribunal, having heard evidence from the Authority in purported justification for the action they had taken, did not call for any evidence from the Jains in response and were scathing in their criticism of the Authority. In the Tribunal's nineteen page Reasons For Decision one reads of the inclusion of irrelevant and prejudicial information in the statutory statement that had been placed by the Authority before the magistrate, of insinuations by the Authority of abuse of residents notwithstanding the absence of evidence sufficient to justify any charges of abuse, and of untrue suggestions by the Authority of failure by the Jains to comply with various statutory regulations. Some of the complaints made in the statutory statement about the running of the nursing home did, in the view of the Tribunal, have some substance but, commented the Tribunal, "none warranted the immediate closure of the home". They said that "there was no reason for supposing that the residents could not properly have been protected by proper monitoring by the inspectors and the provision of advice where necessary". The statutory statement had complained that building works of improvement being carried out at Ash Lea Court had produced an unsatisfactory physical environment for the residents, but the Tribunal noted that there was no evidence that the dust from the building works "posed any risk to the life or health of the residents" and concluded that the conditions at Ash Lea Court had not justified an application for an order under section 30 :
"… the respondents have wholly failed to persuade us that an application for an order cancelling registration under section 30 was an appropriate way of meeting [the Authority's concerns about the running of the nursing home]"
8. The Tribunal was particularly scathing about the Authority's decision to make their application ex parte and without notice to the Jains. While accepting that there had been "no bad faith" on the part of the officials who, on behalf of the Authority, had been responsible for making the application, the Tribunal said that they could see
"… no justification whatever for the failure to warn [the Jains] that the application was to be made"
So the Tribunal allowed the appeal, set aside the magistrate's order of 1 October 1998 and expressed, as a coda, their regret that they had no power to order the Authority to pay Mr and Mrs Jain's costs: cold comfort, no doubt, for the Jains.
9. The upshot of this sad story is that Mr and Mrs Jain's nursing home business had been ruined and serious economic harm had been inflicted on them by an ex parte without notice application that ought never to have been made".
Well, there you go Mr and Mrs Jaine. Trent are wholly discredited, have abused their powers, you have been ruined and all you get is "vindication". Oh, you can try your luck in Europe if you like. You will need to finance it if you can or get funding from the LSC.
You might also sympathise with the Jaines in respect of the finding of no bad faith. Read all of the judgments. I do.
I wonder how this case would have been decided in the USA. Perhaps, someone will enlighten me.
Similar fact cases could be litigated in any country that is party to the Montreal Convention 1999. There was no dispute as to the facts of the case and everything turned on the construction of Article 17.1 of the Convention:
[British Airways] is liable for damage sustained in case of death or bodily injury of [Beverley Anne Barclay] upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
So there was only one question: Did the agreed facts constitute an "accident"?
The Agreed Facts
I summarise the key agreed facts as follows:
1. The aircraft was in normal working condition and all applicable aviation regulations had been complied with.
2. As she lowered herself into her seat, with her body weight towards the right, Ms Barclay's right foot suddenly slipped on a strip embedded in the floor of the aircraft and went to the left.
3. Ms Barclay suffered injury in consequence of 2 above.
4. Ms Barclay had no remedy in contract or negligence but only under the Convention and only if she had suffered an accident.
This is only a brief summary and you should refer to the report for fuller details.
No Win No Fee?
You may by now have formed the opinion that this was a "brave" claim. But it went to the Court of Appeal and I, at least, would not have taken it on a no win no fee basis. Of course, Ms Barclay may be that rare litigant who is rich enough to fund speculative litigation regardless of advice because she is determined to have her day in court as a matter of principle.
Well, someone got it badly wrong.
This is Part 1 of a 2 part post. Look tomorrow for Part 2: The Decision.
If you are contemplating (as a UK resident) entering into a foreign surrogacy arrangement, you should read the case in the title link.
Everyone in this case is a good guy. Yet, difficulties arose. As Mr Justice Headley said in opening his judgment:
Although the outcome of this case was in the end happy for all those involved, it provides a cautionary tale for any who contemplate parenthood by entering into a foreign surrogacy agreement.
Very difficult issues arose and the following indicates them sufficiently for this post:
It will be readily apparent that many pitfalls confront the couple who consider commissioning a foreign surrogacy. First, the quality of the information currently available is variable and may, in what it omits, actually be misleading. Secondly, potentially difficult conflict of law issues arise which may (as in this case) have wholly unintended and unforeseen consequences as for example in payments made. Thirdly, serious immigration problems may arise having regard to the effect of Sections 27-29 of the 1990 Act, at least as understood by me. Children born to foreign surrogate mothers, especially to married women, may have no rights of entry nor may the law confer complementary rights on the commissioning couple. Fourthly, Section 30 is available only to a married couple, others may encounter even more significant difficulties in securing parental status to children born to a surrogate mother, and that is of importance since the Human Fertilisation and Embryology Act 2008 will by Section 54 open up parental orders to unmarried and same sex couples. Lastly, even if all other pitfalls are avoided, rights may depend both upon the unswerving commitment of the surrogate mother (and her husband if she has one) to supporting the surrogacy through to completion by Section 30 order and upon their honesty in not taking advantage of their absolute veto.
So, everyone is agreed that it is in the best interests of the child/children but the parents have to go to the High Court for approval. Read this case before you decide whether you are wealthy enough.
Well, thank goodness for that! I felt dirty all of the time these obnoxious people could say that they were a member of the same profession as me. I have only just received the good news and refer you to The Times report for further information. Here is Jim Beresford:
This is another case where a local authority gets it straight through the heart from the Court of Appeal but there may be little publicity because, although Court of Appeal decisions are delivered in open court, the press show little interest and do not attend.
This does not stop the press running stories complaining about our "secret" family justice system!
Before we get to this particular bad boy/girl social services department it is worth noting Lord Justice Wall's comment that "there are of course, as is always the case, no press in court, even though this court sits in public." In other words, if the press do not attend and do not report the cases they can, their complaints about secrecy ring a little hollow. This is, of course, my inference so it is my fault alone if I have misinterpreted Lord Justice Wall.
Well, what have "Walsall Metropolitan Borough Council Social Services Department" (as they are referred to in the judgment, but not on their own website) done wrong?
For the specifics I am going to leave you to consult the title link. It is the strength of the comments made by the Court of Appeal that are of more general interest:
"The lamentable, totally lamentable, state of affairs in this case is that the local authority have utterly neglected their duty in a way which is worthy of the highest condemnation and that is what I give it."
"On 5 March this year the court ordered the local authority to file a statement by the Young Adults and Disability Team by 14 March. For the second time this local authority cocked a snook at the order of the court. For the third time the court ordered on 25 March that that statement be served by 4 April. For the third time the local authority simply ignored it. In the result the matter was sent to the county court and, as I have already recited, HHJ Mitchell accepted the undertaking from the team manager of the local authority to file their pathway plan etc by 4pm on 4 July and heigh ho, what a surprise, for the fourth time the local authority metaphorically raised two fingers in the air to the court and ignored everything the court has ordered. This is a disgraceful state of affairs. If time had permitted it, I would have directed the director of the Walsall Metropolitan Borough Council Social Services Department personally to attend this court and proffer his explanation and his apology. Instead, I will direct that he writes to this court and to the Wolverhampton Court, giving both his explanation for his disgraceful failure of duty and to proffer his sincere apologies. He is fortunate not to be facing a summons for contempt."
"To make matters abundantly plain, and to demonstrate to the local authority that this is an order which we expect to be obeyed, this order will be endorsed with a penal notice and the director is to be given the assurance by those who represent him today that his contemptuous disregard of this order could lead to an application to commit him and, without prejudging that matter, my preliminary view is that it stands a good prospect of success and he should be advised accordingly."
"It invariably happens in these cases that we never have before us the people who are actually responsible for what has gone on. Some wretched social worker who has just been handed the papers over a few days before is usually put forward as a sacrificial lamb, as a victim to this court's anger and legitimate wrath, and that is what has happened in this case."
Mark Haddock (an alleged murderer but only in prison for GBH* with intent) has won the right to hide his face, at least for the time being.
No-one can publish his picture; that is, a picture of his new face. Obviously, we can still publish his old face: Well, let us hope that this attempt to hide from his former friends in a terrorist organisation works better than the last one:
This is not a man deserving of the sympathy of the court or of its protection. However, the protection is limited - see the title link.
If you want to know who Mark Haddock is you might start with his wiki entry.
Haddock was an insider in the UVF* and latterly a Special Branch Informer. It has been said:
Really Complicated Investment Vehicles ("RCIVs") are the cause of the current "credit crunch" or "international banking crisis".
It is simple:
1. The sacked heads of UK banks were not themselves capable of creating or understanding RCIVs.
2. In fact, no-one was.
3. There were no RCIVs capable of real world risk assessment (a "RWRA") by someone outside the elite group of their creators ("the inner cabal").
4. The inner cabal consists of people in banking who can devise RCIVs that are inexplicable.
5. The inner cabal know that they cannot conduct an RWRA on a RCIV. But they also know that no-one else can either.
6. However, with a little finesse the inner cabal have been able, by complex but essentially meaningless explanations, to persuade their bosses and customers that their particular RCIV was a sure fire money maker ("an SFMM").
7. The inner cabal knew that there was no RCIV that RWRA would show to be a SFMM.
8. However, they also knew that their bosses and customers did not know this.
9. So, they could sell them both a pup and earn huge bonuses whilst the bubble expanded and did not pop.
10. The bubble popped.
QED. Now that you understand that, you also understand how the inner cabal did it.
They simply flummoxed everyone with the use of acronyms and persuading bosses and customers alike that they were too stupid to understand what they were doing and so should simply trust them with their money.
A more serious approach to this question can be found at the title link.
"It was revolting. It was disgusting and an insensitive and racist attempt to satirize a scene of exploitation," said Risa Hontiveros, a Philippine lawmaker, demanding an apology from the BBC.
She said that "by making a horrible scene of exploitation an object of ridicule, the show trivializes an act of abuse commonly experienced by [Filipino] workers abroad."
"... [a] petition has been set up by a group called the Philippine Foundation, which is calling for the re-education of the BBC."
Oh, go on, pull the other one,
The Re-education of the BBC!
This is the suppression of free speech red in tooth and claw.
Isn't "re-education" a Chinese communist concept meaning, in essence: do as we say, think what we tell you and become our slave OR WE WILL TORTURE YOU TO DEATH?
I apologise immediately for the capital letters: an Internet solecism, I know. But just this once we need them.
And what we do not need is a shameful, spineless, cowardly and, unfortunately, typical response from our political leaders:
"...the British Embassy in Manila distanced itself from the broadcaster by saying the organisation has editorial independence and the views expressed and portrayed by the network “are completely independent” from the Government.
It said Filipinos in Britain “are an important part of British society, making invaluable contributions to our scientific and service sectors, and enriching UK culture”.
Oh, well that's all right then!
ONE QUESTION ONLY:
Is free speech of any importance to any supposedly democratic government anywhere in the world?
"This beggars belief when you see the paltry sums offered to our servicemen blown to bits by "innocent Iraqis".
The law firm involved found greater rewards looking for Iraqi claimants rather than taking up the labour party & MOD injustices to our own troops.
No wonder half of them want to quit."
These comments seem a bit unfair and I pose the following questions:
1) How much compensation would these claimant's have got without the assistance of Leigh Day & Co?
2) Why should these claimants have been prevented from pursuing lawful claims because others (i.e. soldiers) may not have lawful claims because of their contractual relationship with the MOD?
3) Are there any racist connotations to these and similar comments?
Whether you need a libel lawyer or not, you will find the title link amusing. This is worth a visit. I cannot say any more because one of them might sue me!
This case has been to the House of Lords already and changed the law in the sense that they decided that the shorter 3 year limitation period for bringing claims for personal injury applied to intentional assaults rather than the longer 6 year period generally applicable for other torts.
That was a victory for the rape victim. Why? Because the 3 year period can be extended in exceptional circumstances but the 6 year period cannot.
Whether the period should be extended was referred back to the High Court and its decision was released on the internet today. See the title link.
Mr Justice Coulson has given the Claimant the extension and allowed her action to proceed against her rapist. Instinctively, we probably all feel that he has made the right decision. Why should the undeserving £7 million pound lottery winning rapist not compensate his victim?
Legally, I am less sure. Mr Justice Coulson has done his very best to render his decision appeal proof. I am not sure that it, in fact, is.
Here are his reasons for exercising his discretion in the Claimant's favour:
"... When considering all the circumstances of this case, I have identified a number of factors in the defendant's favour. These include, in particular, the length of the delay, the possible difficulties for the defendant on some aspects of the evidence on causation caused by that delay, and the payment of the £5,000 by the CICB. However, I have concluded that the factors in the claimant's favour are more numerous and of significantly greater weight. They lead me unhesitatingly to conclude that equity requires that the discretion under section 33 be exercised in her favour.
Those factors include in particular:
(a) The nature and seriousness of the underlying tortious wrong; (b) The fact that one of the consequences of that wrong was the defendant's impecuniosity (because he was unable to earn money by which he could otherwise have met a judgment for damages); (c) The fact that, prior to his lottery win, the defendant's impecuniosity meant that he was simply not worth pursuing in an action for damages. This was the principal reason for the claimant's delay and one that I consider to be reasonable on the particular facts of this case; (d) The fact that the claimant acted promptly following the defendant's release from prison and his lottery win: (e)The fact that the 'clinically significant' second bout of PTSD in 2004 will be capable of being fully addressed by both parties at any trial."
Do these factors fully and necessarily trump the purpose of our limitation legislation; which is to enable potential defendants to know when the risk of a claim against them has expired and they can rest easy?
Well, Mr Hoare certainly has the resources to explore this question on further appeal.
No-one, I think, is going to wish him luck. It emerged after the verdict that this little bastard had "six previous convictions for rape, attempted rape and indecent assault." A less attractive client would be difficult to envisage.
I would not touch him with a barge pole and it can hardly be defamation to describe him, quite simply, as a piece of low life scum. Hopefully, he will spend any part of his fortune that does not go in damages to the Claimant on legal fees!
And, what about his other six proved victims? They should be consulting lawyers now.
Here he is at the time:
And here he is now:
A small picture of a small man. You will need the picture as he lives under aliases.
QUIZ QUESTION: What were they thinking of when they let this man out?
They entered a market they said they did not understand. Indeed, they did have an understanding. It was, however, their own understanding and not one based on misrepresentation by Lloyds. See the title link.
Their understanding was:
If I become a Lloyds name I shall get richer than I am aleady, quicker than I have so far and at no risk to me!
That is, they believed in fools' gold.
Not many will sympathise with their plight. The decade of litigation they have engaged in has secured them nothing. It has simply been a matter of postponing the evil day.
I thought the whole concept of being a Lloyds name was based on "honour" (ie. you pay up when you lose). It was not. It was simple greed and, if you got caught, you simply wriggled and squealed like a stuck pig.
The Times has created a fantastic archive of cases that changed the law, with summaries by Gary Slapper and links to the origanal Times law reports. Here are the links:
This a wonderful resource that I would love to have had when I was a law student but everyone interested in the law, or even just in human beings or life, will find fascinating tales here.
I will put a link to this post in the sidebar shortly so that it is easy to find.
Anyway, here is a sample of what you will find:
"In 1895, The Times reported on three trials of Oscar Wilde. It was the celebrity scandal of the century. The Marquis of Queensbury, who thought his son was being corrupted by Wilde, sent a card to Wilde’s club saying: “To Oscar Wilde posing Somdomite” [sic]. Wilde sued for criminal libel. Queensbury pleaded justification, accusing Wilde of soliciting more than 12 boys. The case had many marvellous episodes, particularly when Wilde was cross-examined:
COUNSEL: Have you ever adored a young man madly? WILDE: I have never given adoration to anybody except myself.
Wilde lost after a fatal slip in cross-examination in which he seemed to say he hadn’t kissed a boy not because he was a boy but because he was ugly. Soon after, he was arrested for indecency. Wilde was eventually convicted after a second trial — the first jury failed to agree on most of the charges — and sentenced to two years with hard labour. The case included many shocking travesties of justice. For example, it came to light that throughout the proceedings, the young men who were testifying against Wilde were each being paid £5 a week by the police, an enormous sum at the time.
Nevertheless, Wilde’s courtroom wit was bountiful. Asked by the seasoned 44-year old prosecutor Charles Gill whether he exalted youth, Wilde said he did and added, to courtroom laughter: “I should enjoy, for instance, the society of a beardless, briefless barrister quite as much as that of the most accomplished QC.”
He was asked later whether his habit of giving cigarette cases to working class youths was not strangely expensive. Wilde replied that it was “less extravagant than giving jewelled garters to ladies”."
Mr Ramage and Mrs Strachey were in dispute about a very small piece of land. Both required access over the disputed land to other parts of their own land. The obvious solution was to share this valueless patch of earth; but no, this was a dispute between neighbours and when neighbours fall out common sense flies out of the window.
As Lord Justice Sedley said (wryly understating the truth):
"In the present case a poorly drawn conveyance left in doubt the ownership of a patch of ground a fraction of an acre in size. Neither party, so far as one can tell, needed to own it in order to enjoy the use of the rest of their land, though both found its use convenient. Whichever of them held title to it, an easement of use or access should have satisfied the other's needs. But instead of reaching a compromise along these lines, war was declared. Unlike Old Caspar after Blenheim, we can now tell who won; but whether the expenditure on law and lawyers, vastly exceeding the value of the piece of land, has been worthwhile one has to doubt."
I dislike neighbour disputes because everything always gets out of hand.
I tell clients a story about an old case I was involved in. It was a dispute over a parking a parking space on a private road. It did not end up in a judgment but only because my client's opponent, in the course of one of their regular out of court altercations, dropped down dead of a heart attack. I declined instructions to continue the proceedings against the widow.
Never get involved in a neighbour dispute. It is really an area of law where the only winners will be the lawyers. That advice and my little story have never discouraged anyone.
As Lord Hoffman said in an earlier case:
"Boundary disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent. Claims to small and valueless pieces of land are pressed with the zeal of Fortinbras's army."
The reference is to an exchange between Hamlet and a captain in Fortinbras's army (Hamlet Act IV, scene iv):
FORTINBRAS
"HAMLET Goes it against the main of Poland, sir, Or for some frontier?
Captain Truly to speak, and with no addition, We go to gain a little patch of ground That hath in it no profit but the name. To pay five ducats, five, I would not farm it; Nor will it yield to Norway or the Pole A ranker rate, should it be sold in fee.
HAMLET Why, then the Polack never will defend it.
Captain Yes, it is already garrison'd.
HAMLET Two thousand souls and twenty thousand ducats Will not debate the question of this straw: This is the imposthume of much wealth and peace, That inward breaks, and shows no cause without Why the man dies. I humbly thank you, sir.
Captain God be wi' you, sir."
This leads into Hamlet's final soliloquy which I do not hesitate to quote in full:
"How all occasions do inform against me, And spur my dull revenge! What is a man, If his chief good and market of his time Be but to sleep and feed? a beast, no more. Sure, he that made us with such large discourse, Looking before and after, gave us not That capability and god-like reason To fust in us unused. Now, whether it be Bestial oblivion, or some craven scruple Of thinking too precisely on the event, A thought which, quarter'd, hath but one part wisdom And ever three parts coward, I do not know Why yet I live to say 'This thing's to do;' Sith I have cause and will and strength and means To do't. Examples gross as earth exhort me: Witness this army of such mass and charge Led by a delicate and tender prince, Whose spirit with divine ambition puff'd Makes mouths at the invisible event, Exposing what is mortal and unsure To all that fortune, death and danger dare, Even for an egg-shell. Rightly to be great Is not to stir without great argument, But greatly to find quarrel in a straw When honour's at the stake. How stand I then, That have a father kill'd, a mother stain'd, Excitements of my reason and my blood, And let all sleep? while, to my shame, I see The imminent death of twenty thousand men, That, for a fantasy and trick of fame, Go to their graves like beds, fight for a plot Whereon the numbers cannot try the cause, Which is not tomb enough and continent To hide the slain? O, from this time forth, My thoughts be bloody, or be nothing worth!"
Reflect and consider that if you wish to find quarrel in a straw then you may pay a heavy price and that that is so even if you win.
Rampton Hospital is a high security psychiatric hospital in the UK. It is an alternative for prison where a criminal is insane.
Residents or former residents applied in this case to be exempted from no-smoking regulations.
For instance, "normal" prisoners are exempt and can smoke in their cells.
Certain persons suffering an acute psychiatric state can be exempted at mental health hospitals. The rules for this are, however, so bizarre that they probably make the exemption pretty worthless to the beneficiaries. We will come to those in a minute.
The result of the case was failure. No-one at Rampton gets exempted. And the court has effectively decided that is ok. This is not what interested me in this case so go to the main title link if it interests you.
What interested me was the regulations that do apply if you get an exemption or, more specifically, the mind of the person that drafted them. Here they are:
"5.9 The patient may only smoke outdoors. The location to be chosen should be discrete as the sight and smell of a patient smoking may upset other patients.
5.10 The Nurse will retain the cigarette until the patient has been safely escorted outdoors, when the cigarette will be given to the patient and then lit by the Nurse who will retain the ignition source.
5.11 When the patient has finished smoking the Nurse will ensure that the cigarette is extinguished in a suitable ashtray and disposed of safely in an appropriate bin.
5.12 The staff and patient will return to the ward.
5.13 Once the decision has been made for the patient to stop smoking then the remaining cigarettes will be returned to the [patients'] Shop for destruction."
QUIZ QUESTION: What kind of mind devises such a regulation or would want to devote a single minute of their working life to drafting it?
My answer is that it is the kind of person who themself requires psychiatric help and may well be criminally insane. Mind you, they probably have a double first and flew through the civil service entrance proceedure.
A businessman was trying to choose a lawyer, but was being very careful about it. He scheduled appointments to interview three lawyers.
At the first lawyer's office, after an initial exchange of pleasantries, the businessman said, "Okay, let's get down to business. I have an important question for you, and I want you to think carefully before answering. How much is two plus two?"
The lawyer raised his eyebrows. "two plus two is four." The businessman thanked him for his time, and proceeded to his next appointment.
The second lawyer, who was also a CPA, seemed a bit more particular than the first lawyer. After an initial discussion, the businessman again announced that he had a very important question, and asked, "How much is two plus two?"
The second lawyer went over to a computer, and entered figures into a spreadsheet. "According to my calculations, two plus two is approximately four." The businessman thanked him for his time, and proceeded to his next appointment.
The third lawyer sat behind a big mahogany desk, and smoked a cigar. He seemed rather self-important as compared to the other two, but at the same time appeared to be much more successful. The businessman again announced, "I would like you to answer a very important question for me, before I decide whether I should use your services. How much is two plus two?"
The lawyer pulled the shades, locked the door to his office, and asked in a hushed voice, "How much do you want it to be?"
The Doctor and The Lawyer
A doctor had just bought a villa on the French Riviera, when met an old lawyer friend whom he hadn't seen in years, and they started talking. The lawyer, as it turned out, owned a nearby villa. They discussed how they came to retire to the Riviera.
"Remember that lousy office complex I bought?" asked the lawyer, "Well, it caught fire, and I retired here with the fire insurance proceeds. What are you doing here?"
The doctor replied, "Remember that real estate I had in Mississippi? Well, the river overflowed, and here I am with the flood insurance proceeds. It's amazing that we both ended up here in pretty much the same way."
"It sure is," the lawyer replied, looking puzzled, "but I'm confused about one thing - how do you start a flood?"
And One Final Short Joke
The trouble with the legal profession is that 98% of its members give the rest a bad name.
Note
I love lawyer jokes but some other lawyers do get chippy about them. Tough. Live with it! Chaucer and Shakespeare probably did not start the tradition of having a go at lawyers but they certainly carried it on and no lawyer today is going to stop it.
I will put a link to the above site in my sidebar shortly.
You might also try The Red Squirrel Lawyer Joke on my current homepage but be warned that I am rewriting my homepage and this link may become invalid when I update it and I may forget to update this link.
The randomness of death demonstrates irrefutably the meaninglessness of life and the non-existence of god.
That is two conclusions drawn from one assertion of fact so I suppose you will want a little convincing.
GOD THE GAMES MASTER
That death is random is not demonstrated by the current loss of life in Burma. A rational god might well have decided that the lives lost were justified by the provocation they would provide for international intervention and the reform of a corrupt government. He would not be a very pleasant god to believe in. He would be using the earth as a kind of game site where he could inflict decisions about climate change and just see how the Sims reacted. Oh gosh! We play games like that.
Let us look at it two ways.
IF DEATH IS NOT RANDOM
If death is not random then someone decides who dies and when. Think about it! It is a very unattractive proposition. It does not fit at all with a belief in a good god. It only fits with a belief in God the Games master (see above). Wholly innocent people die. Babies die. Very good people die early.
IF DEATH IS RANDOM
A good god could have devised a world where death is random. Could he? If so, he could have devised a world where death was not random but merit related. He did not.
The following FAQ's may assist:
IS RANDOM DEATH ESSENTIAL TO FREE WILL?
The answer is: not really. The only reason for killing people in your game is to score points. You simply need to set up a different scoring system. One that begins: Not Sending Massive Flood – BONUS – 10 Trillion Points.
IS GOD GOING TO STRIKE ME DOWN FOR POSTING THIS?
No, he probably does not exist.
If (contrary to all probabilities) he does exist then I really do not know. Maybe he likes to play with Sims like me in the game.
SHOULD YOU LIKE GOD?
None of the versions I have seen out there seem particularly attractive. If you can find a likable version of god, please let me know.
This is the extraordinary case of RP v Nottingham City Council. It is a child care case and, as previous posts make clear, I do not believe that these are always handled correctly. That is not the focus here.
John Hemming MP has engaged in a totally misjudged and ill-considered attack on the professional integrity of solicitors, barristers, social workers and experts. Lord Justice Thorpe has administered a thoroughly justified rebuke. In my view the Court of Appeal judgment calls into question Mr Hemming's fitness to be an MP. The conclusion of Lord Justice Thorpe was:
"As to Mr. Hemming, my judgment is that his self-imposed role as a critic of the family justice system is gravely damaged, and speaking for myself I will not be persuaded to take seriously any criticism made by him in the future unless it is corroborated by reliable, independent evidence."
Hemming's allegations included:
the Official Solicitor lied and fabricated a letter
the solicitor instructed by the OS fabricated attendance notes
the expert was in the pay of the local authority and therefore did not give a true opinion
The second of Lord Justice Thorpe's reasons for setting out in some considerable detail the facts of this matter was:
"to record Mr. Hemming's quite extraordinary reaction to SC's file. After Mr. Peter Jackson QC had taken us through the references to SC's discussions with RP about the role of the Official Solicitor (perhaps not, in fairness to Mr. Jackson, in quite the same degree of detail as I have done) we invited Mr. Hemming to reply on RP's behalf. I confess that, no doubt with considerable naivety, I had expected a recognition on his part that, whatever RP's perspective of the Official Solicitor and his role, the record made by SC would be respected, and that Mr. Hemming would acknowledge that, to some extent at least, RP's recollection had plainly failed her.
Not a bit of it. So astonished was I by Mr. Hemming's response that I asked the transcribers to make me a CD Rom of the exchanges which occurred, so that my note of them could be supplemented by the record. In a nutshell, Mr. Hemming's response was that the evidence contained in SC's file had been made up: in a word, fabricated."
Whilst the full judgment should be read I feel I must post the following lengthy segment:
"Over the period during which this judgment has been reserved, I have, of course, carefully considered Mr Hemming's interventions in this part of the case, and I have re-read the files. Having done so, the feeling of incredulity which I experienced on 4 March has not diminished.
In my judgment, SC's files demonstrate overwhelmingly four clear facts. They are; (1) that RP was fully aware that SC had doubts about her ability to provide instructions; (2) that RP was fully aware that the Official Solicitor was being approached to act on her behalf; (3) that she was fully aware that the Official Solicitor had been appointed, and was representing her; and (4) that she was fully aware of his role in the proceedings. In short, RP's assertion that she did not know the Official Solicitor was acting for her is manifestly unsustainable.
Mr. Hemming's response on RP's behalf is that this cannot be so because the file has been interfered with. I have, of course, considered that response with care. It is a profoundly serious allegation. However, it is one for which, in my judgment, there is absolutely no evidence. The only query is the mistaken date on the typed attendance note.
I find it not only unacceptable but shocking, that a man in Mr Hemming's position should feel able to make so serious an allegation without any evidence to support it. In my judgment, it is irresponsible and an abuse of his position. Unfortunately, as other aspects of this judgment will make clear, it is not the only part of the case in which Mr Hemming has been willing to scatter unfounded allegations of professional impropriety and malpractice without any evidence to support them.
I can simply see no reason why the file should not be taken at face value as accurately reflecting what occurred. The file simply reflects and records the actions of a solicitor doing her best to represent a disadvantaged client. I can see absolutely no reason why SC should have made false entries on the file and no reason why she should not have forwarded the Official Solicitor's letter of 11 December and the explanatory leaflet to her client. I ask myself the very simple question: why should she behave in this manifestly unprofessional way? In the crude phrase: what was in it for her? The answer to the second question is, of course, nothing."
Mr John Hemming MP has done nothing but damage the cause he espouses.
His behaviour in this case was utterly deplorable.
In an earlier age, not long ago, well, only decades ago, an MP in his position would have done the honourable thing and resigned.
Mr Justice Owen has dealt another blow against the government and in favour of freedom. Gosh! High Court Judges who support freedom seem to be self-propagating at an alarming level. I am sure the government will intervene soon.
The UK government said it could renege on its promise to hold a referendum on a treaty with impunity. It further said that no one could challenge its right to say one thing and mean another. This is the famous Humpy Dumpty Defence:
`I don't know what you mean by "glory,"' Alice said.
Humpty Dumpty smiled contemptuously. `Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'
`But "glory" doesn't mean "a nice knock-down argument,"' Alice objected.
`When _I_ use a word,' Humpty Dumpty said in rather a scornful tone, `it means just what I choose it to mean -- neither more nor less.'
`The question is,' said Alice, `whether you CAN make words mean so many different things.'
`The question is,' said Humpty Dumpty, `which is to be master - - that's all.'
This is the UK government's absolutely favourite defence.
Why would anyone complain?
On 13 April 2005 the Prime Minister launched the Labour Party manifesto in which the earlier promises of a referendum, as reflected in the EU Bill, were repeated. Following the general election on 5 May, the promise to hold a referendum was repeated. On 13 May 2005 the Prime Minister was reported in The Sun newspaper as saying "we don't know what is going to happen in France, but we will have a referendum on the constitution in any event – and that is a Government promise." On 18 May the Prime Minister confirmed in the House of Commons that there would be a referendum in relation to the Constitutional Treaty, and on 24 May 2005 the Government re-introduced the EU Bill which still contained provision for a referendum, in the House of Commons.
What were the government's excuses (sorry, their defence)?
"They are first that the issue raised by the claim is not justiciable, secondly that the claim is a violation of parliamentary privilege, and thirdly that there was no unambiguous and unqualified representation that a referendum on the Lisbon Treaty would be held."
THEY LOST ON ALL THREE POINTS. That is, 3-0 to freedom on round 1. Round 2 follows and I will update.
East Sussex County Council is within my geographic area. Until the government rendered it uneconomic to maintain a legal aid franchise I used to handle child care cases involving them. I rarely came across a lawyer who did not regard their social services department as badly managed and arrogant. The Court of Appeal has now confirmed this opinion and condemned them. See the title link.
In argument, a number of adjectives were used to describe the conduct of the local authority / adoption agency [East Sussex County Council's SS] (henceforth "the agency") in this case. Over the period during which this judgment has been reserved, I have re-read the papers and reflected on the agency's conduct. In the event, I have come to the conclusion that the only word I can use to describe it is "disgraceful". That is not a word I use lightly.
"During the course of argument, we gave counsel for the agency every opportunity to defend and justify its conduct. In my judgment, she not only failed to do so: worse, she did not appear to think the exercise necessary. On her argument, the agency was acting within the letter of the 2002 Act, and in the best interests of the child. Although she acknowledged that aspects of the agency's conduct were likely to be criticised, her attitude came across, to me at least, as – in effect – so what? If the 2002 Act permitted the agency to do what it did, why was the manner in which it did it relevant?
In my judgment, the conduct of the agency in this case demonstrates a profound if not total misunderstanding of its functions under the 2002 Act. Moreover – and this I find particularly dispiriting - it provides useful ammunition for those who criticise the Family Justice System for administering "secret" justice, and who attack social workers as a group for their arrogance and the manner in which they abuse their functions by both removing children from their parents unlawfully, and by stifling legitimate parental responses."
This was an adoption case. East Sussex Social Services forced through the adoption before the father of the child's application to set it aside could be heard. They were fully aware of the application because the father's solicitors had written to them.
"There was no reply of any kind to that letter. Counsel for the agency was either unable or unwilling to offer any explanation for the total failure to reply, but in my judgment, given the agency's subsequent behaviour, only two inferences, both adverse to the agency, can properly be drawn from that failure. They are; (1) that the agency did not wish to give the father or his solicitors any information; and (2) it wished, as the judge found, to "scupper" or "stymie" any application which the father made to the court. These two inferences are, in my judgment, irresistible. Indeed, there is no alternative explanation. Certainly counsel for the agency did not proffer any alternative."
And further:
"Both the agency and the recipient of the letter of 17 January must understand that the failure to answer the letter was not merely discourteous and thoroughly bad practice, but that it can only be seen as a deliberate attempt to keep the father in the dark, so that the agency could proceed to place the child and thus prevent the father from making an application to the court under section 24(2) of the 2002 Act. It is this conduct in particular on the part of the agency which leads me to categorise its conduct overall as disgraceful."
I need not go on but you should read this case if only to discover the full extent of the "abuse of power" and "sharp practice" in which East Sussex County Council's social services are prepared to indulge where the welfare of children is involved.
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.
"If we arranged for Monsanto to create a unique, sterile, food crop (wheat, for example) with a unique genotype, we could pay Afghan farmers the going rate for opium to grow this instead. Money and food is passed to the Afghan economy and the drug barons are hit where it hurts money - their wallets."
The above seems to me to be a good idea.
Apparently, the Afghan poppy producers are paid at subsistence levels for their multi-million dollar crop. See the title link.
Mr Bow seems to have a nice simple solution.
We pay them to do something else; preferably something useful. But even if not, it will still be cheaper and more effective than trying to enforce the unenforceable in a lawless country.
Ok, I feel that I have had an unfair share of persistent litigants in person over the past few years and may, in consequence, be more amused (in a rather long suffering and grudging way) than you will be:
The title link goes to the site where I got this which aims "to become the largest collection of lawyer jokes and cartoons". It is not there yet.
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.
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 heroic Oxford coroner Andrew Walker (a thorn in the side of the Ministry of Defence) has been moved sideways.
It is not accurate to say that he has been sacked (as is widely reported on the internet). He was on a fixed term contract and his contract is not being renewed.
The reason given for this is that the "resources" (i.e. the three additional coroners appointed to deal with a backlog of military inquests in Oxford) are no longer required. See this article. The Department of Constitutional Affairs said:
"The government believes that these extra resources can complete all 85 inquests by May 2007."
I love the Dalek-like reference to human beings as resources!
However, Andrew Walker is indisputably an able, efficient and incorruptible coroner. Even if you want to get rid of him it is going to look bad if you simply dispense with the services of such a useful "resource". But, he is a bloody nuisance. See this article.
SOLUTION: Move him to be coroner for Hornsey in North London.
RESULT: The Ministry of Defence can rest easy. Des Browne can smile again. Not many dead soldiers in Hornsey.
If anyone says the government did not recognise Mr Walker's sterling qualities (thorough, precise, fair etc.) they can respond that his job as coroner was redundant (we terminated the other two temporary coroners as well), they have given him an important job in Hornsey and their critics are being unreasonably cynical. Oh, you are not really suggesting that the Department of Constitutional Affairs would make a decision to move a coroner simply because it was in the interests of the Ministry of Defence, are you?
Well, I might be. I know you do not do not do much in the way of joined up thinking but maybe you are capable of just a little when the self-interest of ministers is involved.
I can only imagine the response but it might consist of the exclamation "Oh, really!" and the stamping of a foot. Well, I was not suggesting that they had climbed out of their prams. Ok, I have not suggested it yet.
I should quote one tribute by one parent of a dead soldier:
"We wish to pay tribute to the coroner Andrew Walker, for his unrelenting quest for the truth, his objectivity in considering all the evidence and his humanity in the way he dealt with us, the family.
He is, indeed, a fine and wise coroner."
Well, you can see why the government does not like him! Previous posts:
The Daily Mail reports today that Lord Justice Ward (pictured above) has labelled two neighbours continuing a dispute about a smallish amount of land in the Court of Appeal "potty".
This is a boundary dispute. Not all neighbour disputes are boundary disputes but all boundary disputes (alright, most of them) are neighbour disputes.
"Potty" is an apt description for most parties to neighbour disputes. They are as acrimonious as divorces with, usually, not much in issue in terms of the value of the land but huge amounts tied up in legal costs.
Lord Justice Ward gave Mr Robert Beton permission to appeal i.e. he gets the right to a hearing before a full three judge Court of Appeal. This is not a sensible use of court time.
Lord Justice Ward is fully aware of this. He had some trenchant comments to make:
“This is another of that hideous form of litigation called the boundary dispute, a form of litigation which is best not pursued.
"Just how much is this stupid piece of land worth? What you are arguing over is a few rhododendron bushes.
"If you live in St Georges Hill, you've got money to throw away, presumably. But why throw it away like this? You're all potty.
"Disputes of this kind are a most hateful form of litigation; go away and sort it out."
It is rare for permission to appeal applications to be reported. I hope this one is; if only for those words. They form a sensible basis for advising any client wishing to litigate a neighbour dispute.
My first choice is to advise my client's to forget it unless there is some serious land value involved and a strong case.
My second choice is to try to get the parties to agree a joint instruction to a land surveyor and enter into an agreement to be bound by his or her determination.
Hey presto. No huge legal fees and a surveyor who is likely to cost under a £1,000.
And it is going to be surveying evidence that is likely to be conclusive in most cases anyway.
Litigation to resolve these disputes is therefore correctly described by Lord Justice Ward as "potty".
Legal costs may not be the only reason to avoid litigation. In a divorce, sometimes you may be living in the same house but not always. A divorce is one of the most stressful processes you will encounter in your life. In a neighbour dispute you will, by definition, always be living next door to each other. Others may take sides.
So why is the Court of Appeal giving them time in this case against Lord Justice Ward's better opinion? The answer is because he has to. Mr Beton employed a QC who has found an arguable point:
"The judge found that adverse possession must have been manifest to the owner.
“But he failed to give weight to the fact that the presence of the bushes was such to make much of the fence not observable.”
Of such points are Court of Appeal decisions worthy and, even so, to get this far, someone had to be so oblivious to costs that he was willing to fund leading counsel to review the papers. The question remains, in the words of Lord Justice Ward:
"Just how much is this stupid piece of land worth?"
I will just add this. One neighbour dispute I was involved in lasted years. Both parties were well off and retired. It ended one day when one of the parties dropped down dead of a heart attack. Needless to say, they were having one of their verbal arguments outside their houses as to who could park where in their private road. My client wanted me to continue proceedings against the widow. I declined the instructions.
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.
"An obscure Tory backbencher has made himself the member least likely to catch the Speaker’s eye in the Commons. Douglas Carswell has become the first MP to call publicly on Michael Martin to resign.
The Harwich MP says a new Speaker is the only way to regain public confidence in the Commons. “Speaker Martin must step down,” says Carswell. “Perhaps not immediately, but he needs to set a date for his departure now. MPs need to choose a Speaker who understands there is a problem with Westminster politics”. The question now is: are any other MPs brave enough to line up alongside Carswell?"
At last, even if only a little one, an MP speaks up.
They really are a bunch of cowards! No bones in their blubbery little bodies at all.
Mr Carswell is, after all, merely stating the obvious. But, why not immediately?
Yes, these are now the Tibetan olympics, not the Chinese olympics.
The Chinese have clutched defeat from the jaws of victory. Blue security guards, for instance. Thugs in fancy tracksuits, to you and me.
THE BLUE MEN: AKA THE CYBERMEN Tommie Smith and John Carlos might advise olympians to keep silent if they do not want to suffer the consequences that they did. This, however, simply demonstrates the prostrate, immoral and subservient role of the IOC. Abolish this useless body immediately! It is composed of corrupt sycophants.
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.
The Times reports today that Ryanair is facing prosecution and a substantial fine on a reference to the Office of Fair Trading by the Advertising Standards Authority. See the title link.
The following extract perhaps indicates Ryanair's attidude:
"In January Ryanair refused to withdraw an advert of a woman dressed as a schoolgirl, despite the authority’s ruling that it breached advertising rules on social responsibility and decency. Ryanair accused the authority of censorship, saying that it was run by “unelected, self-appointed dimwits”.
The authority also upheld a complaint that Ryanair had published misleading information about the effect of aviation on climate change. A Ryanair spokesman said that ASA stood for “Absolutely Stupid Asses”.
Ryanair lost £20 million in February after closing its website to comply with an OFT ruling that it should advertise prices inclusive of taxes and charges."
Ryanair has history!
The best site to visit, if you contemplate flying with them, is Ryanair Campaign. Ryanair has made repeated attacks on this site so it clearly worries them. The site comments:
"We suspect that Ryanair's main intention, as evidenced by their solicitors' letters demanding that the site be shut down as long ago as 2004, is to censor the content of this site. However, they have been successful in gaining control of the domain name ryanair.org.uk, having complained on the grounds that it infringed their trademark. This effectively censored the content, until they attempted to gain control of our current domain name, ryanaircampaign.org, and were unsuccessful, resulting in a lot of publicity. Neither judgement had anything to do with the content of this site.
We accepted the judgement (by Nominet) about our original domain name (from which we have never earned a penny, nor in any way attempted to pass ourselves off as Ryanair) and moved to the current domain name specifically to avoid the trademark issue. Search engine ratings inevitably plummeted, and the campaign was effectively over, but Ryanair could not resist snatching defeat from the jaws of victory. They made an incompetent complaint about ryanaircampaign.org, the ruling in which not only gave us publicity, but seems to be a precedent in the interests of free speech."
There is also an interesting video on YouTube:
There are also over 400 comments on this video at YouTube so you might wish to go there.
From the above, one might easily conclude that Ryanair has complete contempt for both regulatory authorities and the law. Perhaps it operates on the basis that the only penalty it will face is a financial one and that is so rich that it can afford any penalty that might be imposed. This leads to a further "perhaps". Maybe, the authorities should take this into account when deciding the level of any fine that should be imposed. If money is all they care about (rather than respect for the law or customer service) then (another "perhaps" - they are notoriously litigious) only a "massive" fine will do the trick.
I do not usually post on criminal law but this case arrived on BAILII today and the deception practised on the victim is just so strange. This is from the judgment:
"We must summarise the facts of this bizarre and unpleasant story. The victim was a student. She went to college in 1999 where she met the appellant. They became very good friends, and in 2002 a sexual relationship began. Consensual intercourse took place, usually in hotel rooms booked by the appellant. After a few months the complainant started to receive threatening text messages and telephone calls. These messages continued throughout her student days, first at college, and later when she went to university. Something of their intimidating nature can be captured in comments like "we are going to kidnap you"; "we are going to convert you"; "we are going to kill you". The complainant confided in the defendant. At first she believed that the messages came from Muslim students at college. However when she left college and went on to university, the messages continued, and she continued to share these worries with the appellant. He was responsible for all the messages, but purported to give her every reassurance that he, together with his friends, would be able to protect her."
It gets weirder:
"In due course a text message to the complainant stated that PC Ken had died, and that PC Bob had taken over the investigation. PC Bob was as fictitious as PC Ken. All the messages were coming from the appellant. Some correspondence followed, until PC Bob fell out of the picture. The appellant told her that PC Bob had accepted bribes and had been sentenced to a substantial term of imprisonment. Thereafter, yet another fictitious police office, PC Thomas, was created. The complainant received a message from PC Thomas that he had taken over the investigation. The process continued as before. The complainant was to provide statements by text. When she failed to do so, she was told that the perpetrators would be getting away scot free.
The complainant had no idea that the appellant was responsible for this entire process. She was concerned about their ongoing relationship, and during the last two or three years tried to break it off. Whenever she sought to do so, she would receive text messages from the different police officers, telling her that the appellant had tried to kill himself and that she should do her duty and take care of him. She was told that she should sleep with the appellant, and that she would be liable to a fine if she did not. She received something like fifty such demands over a four year period. On each occasion she complied with them and had intercourse with the appellant in a hotel room. But for the messages from the fictitious police officers, she would not have done so."
The 8 year sentence was confirmed by the Court of Appeal. I really have nothing to add. I am not a criminal law specialist. View the title link if you are interested.
Hurray! The court overrules the Government. Justice and freedom are alive in England. What is the SFO going to do now. Er, nothing, probably; naturally, this inactivity will be suitably camouflaged by the appearance of doing something. This does not deprive the judgment of its value as a statement of how law officers should act in the face of blackmail.
Some extracts from the summary:
"The allegation made by the claimants is clear. It sets out a report from the Sunday Times dated 10 June 2007. The report states that:-
"Bandar (Prince Bandar bin Sultan bin Abdul Aziz of al-Saud) went into Number 10 and said 'get it stopped' [words omitted]. Bandar suggested to Powell he knew the SFO were looking at the Swiss accounts?if they didn't stop it, the Typhoon contract was going to be stopped and intelligence and diplomatic relations would be pulled." ..."
"The Director, in his first witness statement, states that the reason why he discontinued the investigation was that to continue:-
"would risk an immediate cessation of co-operation in relation to national and international security which might have devastating effects on the UK's national security interest ? both locally in the UK and in the wider international field in the Middle East?a compelling case had been made out that the UK's national security and innocent lives would be put in serious jeopardy if the SFO's investigation continued." He says:-
"It was this feature of the case which I felt left me with no choice but to halt the investigation."
The defendant in name, although in reality the Government, contends that the Director was entitled to surrender to the threat. The law is powerless to resist the specific and, as it turns out, successful attempt by a foreign government to pervert the course of justice in the United Kingdom, by causing the investigation to be halted. The court must, so it is argued, accept that whilst the threats and their consequences are "a matter of regret", they are a "part of life".
So bleak a picture of the impotence of the law invites at least dismay, if not outrage. The danger of so heated a reaction is that it generates steam; this obscures the search for legal principle. The challenge, triggered by this application, is to identify a legal principle which may be deployed in defence of so blatant a threat. However abject the surrender to that threat, if there is no identifiable legal principle by which the threat may be resisted, then the court must itself acquiesce in the capitulation. ..."
"The principle we have identified is that submission to a threat is lawful only when it is demonstrated to a court that there was no alternative course open to the decision-maker. This principle seems to us to have two particular virtues.
Firstly, by restricting the circumstances in which submission may be endorsed as lawful, the rule of law may be protected. If one on whom the duty of independent decision is imposed may invoke a wide range of circumstances in which he may surrender his will to the dictates of another, the rule of law is undermined.
Secondly, as this case demonstrates, too ready a submission may give rise to the suspicion that the threat was not the real ground for the decision at all; rather it was a useful pretext. It is obvious, in the present case, that the decision to halt the investigation suited the objectives of the executive. Stopping the investigation avoided uncomfortable consequences, both commercial and diplomatic. Whilst we have accepted the evidence as to the grounds of this decision, in future cases, absent a principle of necessity, it would be all too tempting to use a threat as a ground for a convenient conclusion. We fear for the reputation of the administration of justice if it can be perverted by a threat. Let it be accepted, as the defendant's grounds assert, that this was an exceptional case; how does it look if on the one occasion in recent memory, a threat is made to the administration of justice, the law buckles?..."
"The court has a responsibility to secure the rule of law. The Director was required to satisfy the court that all that could reasonably be done had been done to resist the threat. He has failed to do so. He submitted too readily because he, like the executive, concentrated on the effects which were feared should the threat be carried out and not on how the threat might be resisted. No-one, whether within this country or outside is entitled to interfere with the course of our justice. It is the failure of Government and the defendant to bear that essential principle in mind that justifies the intervention of this court. We shall hear further argument as to the nature of such intervention. But we intervene in fulfilment of our responsibility to protect the independence of the Director and of our criminal justice system from threat. On 11 December 2006, the Prime Minister said that this was the clearest case for intervention in the public interest he had seen. We agree."
It was, of course, Tony Blair who "intervened in the public interest" and to whose cheek the slap in that last sentence is directed.
Article 8 of the European Convention on Human Rights protects a person's right to privacy. There are exceptions. For a more detailed explanation try this site.
None of the exceptions applies in the case of Max Mosley and his interaction with prostitutes. Mr Justice Eady accepted this today:
"A relevant consideration here is whether there is a public interest in revealing the material which is powerful enough to override Mr Mosley's prima facie right to be protected in respect of the intrusive and demeaning nature of the photographs. I have little difficulty in answering that question in the negative. The only reason why these pictures are of interest is because they are mildly salacious and provide an opportunity to have a snigger at the expense of the participants. Insofar as the public was ever entitled to know about Mr Mosley's sexual tastes at all, the matter has already been done to death since the original coverage in the News of the World. There is no legitimate element of public interest which would be served by the additional disclosure of the edited footage, at this stage, on the Respondent's website."
A clear case then that The News of the World breached Mr Mosley's Article 8 rights and had no public interest defence. They should therefore be restrained from further publication of the video. Well, no, actually.
Paragraphs 22-24 of Eady J's judgment are as follows:
"When it comes to privacy, however, Mr Price emphasises that, when balancing his client's Article 8 rights against the Respondent's Article 10 rights, the visual display of the edited footage serves no legitimate purpose and that its grossly intrusive nature is unnecessary and disproportionate.
I was reminded of a passage in the speech of Lord Hoffmann in Campbell v. MGN Limited [2004] 2 AC 457, 475 at [60], where he referred to a hypothetical case in which there would be a public interest in the disclosure of the existence of a sexual relationship (e.g. because of corrupt favours), but where the addition of salacious details or intimate photographs would be disproportionate to any legitimate purpose and unacceptable. He observed that these would be likely to be intrusive and demeaning – even if accompanying a legitimate disclosure. Mr Price submitted that this would also be true in the present case.
I was also invited to have in mind similar observations made by Waller LJ in D v. L [2004] EMLR 1 at [23]:
"A court may restrain the publication of an improperly obtained photograph even if the taker is free to describe the information which the photographer provides or even if the information revealed by the photograph is in the public domain. It is no answer to the claim to restrain the publication of an improperly obtained photograph that the information portrayed by the photograph is already available in the public domain.""
He also said at paragraph 32:
"I am quite satisfied that Mr Mosley, even though he may have been misunderstood by some commentators, has accepted that he took part in the "S and M" session with the prostitutes. What he is denying is the link to Nazism. I do not consider that the edited footage shows, convincingly, that his denial is false. But, even if it is capable of being so construed, there is nothing to prevent the News of the World reasserting, with whatever prominence it thinks appropriate, that there was Nazi role-play. Accordingly, if there is any case for saying that Mr Mosley's denials have, in any way, misled the public, and that the record should therefore be put straight for that reason, the objective can be achieved effectively without displaying the edited footage of bottoms being spanked."
It seems all to be going Mr Mosley's way so far. He may therefore have been surprised by the closely following paragraph 34:
"As Mr Millar has pointed out, if someone wishes to search on the Internet for the content of the edited footage, there are various ways to access it notwithstanding any order the Court may choose to make imposing limits on the content of the News of the World website. The Court should guard against slipping into playing the role of King Canute. Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen. It is inappropriate for the Court to make vain gestures."
And he may have been even more surprised by the conclusion:
"In the circumstances now prevailing, as disclosed in the evidence before me, I have come to the conclusion that the material is so widely accessible that an order in the terms sought would make very little practical difference. One may express this conclusion either by saying that Mr Mosley no longer has any reasonable expectation of privacy in respect of this now widely familiar material or that, even if he has, it has entered the public domain to the extent that there is, in practical terms, no longer anything which the law can protect. The dam has effectively burst. I have, with some reluctance, come to the conclusion that although this material is intrusive and demeaning, and despite the fact that there is no legitimate public interest in its further publication, the granting of an order against this Respondent at the present juncture would merely be a futile gesture. Anyone who wishes to access the footage can easily do so, and there is no point in barring the News of the World from showing what is already available."
I have read the judgment twice and it still seems to mean that newspapers can get away with the Canute defence if they act quickly, generate enough interest and are copied widely over the internet. They are then (a) immune from attack, (b) can then get away with republication of material originally published in breach of Article 8 and (c) profit from that republication.
THE CANUTE DEFENCE: A GUIDE FOR NEWSPAPERS:
(1) Obtain information in breach of a person's human rights.
(2) Do so illegally if that is to your taste.
(3) Put it up on your website until you receive a letter of protest from that person's solicitors.
(4) Immediately take it down.
(5) Tell the court that so many copies were made whilst it was (illegally) on your site that there is no point in restraining you from putting it back up.
(6) You then say: "Yah! Booh! Sucks!" to the complainant.
QUIZ QUESTIONS:
(1) What principles were applied here (if any)?
(2) Even if the material is now in the public domain, should The News of the World be allowed to make further profit from admittedly unlawful behaviour - even if other people will do so?
(3) Does it make any difference to your answers to the above two questions that you are or may be personally disgusted by Max Mosley's behaviour?
(4) Should it?
(5) Are any of the above "leading questions" and, if so, which?
IMPORTANT NOTE:
I hold no brief for Max Mosley and I have no prurient interest in his personal life. I have not posted before concerning this and have not linked to the "salacious" material, although ordinarily I would not hesitate to do so. This post relates to an important decision on Human Rights and issues of principle. I hope Mr Mosley appeals. Not for his sake but because we need something better on this subject than, I am afraid, Eady J's judgment provides.?
I love this case. It is a Northern Ireland Court of Appeal decision but ought to be followed here. See the title link.
It is important for, well, restaurant reviewers. However, it is important also for anyone who wants to express an opinion. That includes, for instance, book, film and theatre critics. It also includes bloggers and anyone else who posts over the internet. So read it.
The allegedly offending article appeared as long ago as 26th August 2000 in The Irish News. The first hearing did not start until 29th January 2007 and the appeal judgment is dated 10th March 2008. It is not pleasant to have to comment that the courts in England & Wales are sometimes no quicker in bringing about a final resolution to cases. In fact, this case has not been finally concluded because it has been sent back for the first court to apply the correct law. I imagine the parties will, now, however, settle.
A succinct summary of the review is at paragraph 8 of the judgment of Lord Chief Justice Kerr:
"In its final, amended form the plaintiff's statement of claim alleged that the words of the review, in their natural and ordinary meaning, were intended to and did in fact mean that the plaintiff did not train his staff; that he used the cheapest ingredients on the market; that he overcharged; that he served poor quality and inedible food; that he served frozen vegetables and pizza; that his restaurant was pretentious, badly managed, not worth going to and had a joyless atmosphere."
That is, it was the reviewers' (there were two of them) considered opinion that this was about as bad a restaurant as you were likely to find.
Should I identify the restaurant? Well, I already have by providing a link to the judgment. In fairness, however, it should be mentioned that this review is over 7 years' old. Alright, it is Goodfellas in West Belfast.
The judge below had simply got it wrong. The CA held at paragraph 31 that:
"Of greater consequence, however, was the judge's acceptance that all of this material was factual in nature. In fairness to him, it had been portrayed by the defendant as such but, as I have already observed, much of it was plainly comment and other statements might reasonably have been regarded as opinions or inferences drawn from facts rather than unvarnished imputations of fact. Thus, for example, the statements that the reviewers were happy to order cola but did not enjoy it; that the cola was flat, warm and watery; that the squid rings were translucent grey in appearance; that they did not taste like squid; that the starters were of poor quality; that the sauce on the chicken Marsala was very sweet and a bad accompaniment for the savoury food; that the spaghetti dish had overcooked pasta, a lot of sauce and unattractive looking seafood in the sauce; that the reviewers did not enjoy their main courses; that the chips were pale, greasy and undercooked; and that the reviewers were unimpressed by the poor standard of their dining experience were all matters of comment and not statements of fact. They should have been identified as such by the judge and he should have directed the jury that they should so regard them."
Bloggers and contributors to websites should not yet celebrate. The following case presents a dire warning to porkie pie merchants who think of the internet as affording them protection:
I link to Gary Slapper's weird cases but this one deserves a post of its own:
"Facing a criminal charge in Brisbane District Court, Australia, in 2006, Katsuhide Naito, a Japanese man, also gave an unusual excuse. He told the court that his otherwise criminal conduct should be seen sympathetically in the context that he committed the offence only in order “to acquire a champion Australian cattle dog”.
Naito had contravened laws about bringing living matter into Australia. He had aimed to swap his organic contraband for the cattle dog. He might have been treated leniently had he tried to smuggle a ladybird or four-leaf clover. But the authorities who searched his bag were not impressed to find 39 live snakes, lizards and turtles.
The Brisbane judge declared that the wrongdoing was very serious. He ruled that the proper court order was one for euthanasia and stuffing. Mr Naito might well have fainted with shock at that point but the judge explained it was the reptiles that should be given the treatment and then donated them to the Queensland Museum. Naito himself was spared and given a three-month prison sentence."
I have long resisted commenting on sentencing policy. I am not a criminal lawyer and I do not write, and rarely agree with, Daily Mail editorials.
However, this gifted young man's death has not been properly avenged.
And, yes, vengeance is a proper part of the sentencing decision. Otherwise, these atrocious little thugs will never learn that they will not be allowed to get away with it.
The thugs were Patrick Rowe and Dejon Thompson (may their names live in infamy). If anyone has photographs of these animals I will put them up.
The Court of Appeal has overturned Mr Justice Blackburne's 2006 decision to award 40% of royalties from the date he brought his claim to the organist Matthew Fisher for his contribution to A Whiter Shade of Pale. See the title link.
"This is a most peculiar judgment that will please nobody. It raises more questions than it answers. Having demolished every single argument advanced by Gary Brooker's legal team, Lord Justice Mummery suddenly produced an argument of his own, like a magician producing a rabbit out of a hat.
This argument is so obscure and oblique as to defy comprehension. It had never been anticipated, either by the two legal teams concerned, or by any of the many legal commentators who have written about the original trial. It will be interesting to hear the reactions of other specialist copyright lawfirms such as Clintons or Davenport Lyons.
Nevertheless, from my point of view this case was never about money - it was about getting my name on the song to which I contributed the most commercial and essential feature [i.e. the organ tune]".
He comments elsewhere that he went down 2-1 and he is right. However, the third Court of Appeal judge (Sir Paul Kennedy) did not give a reasoned decision and simply confirmed his agreement with Lord Justice Mummery.
Mr Justice David Edwards delivered a dissenting opinion. A clear invitation, if it is not about money, or, even if it is, to roll the dice in the House of Lords. Two reasoned opinions: one favourable, one unfavourable and a delphic coin toss.
However, I am surprised that neither legal team (as Mr Fisher says) anticipated this:
"In summary, my reason for allowing the appeal against declarations (2) and (3) is that Matthew Fisher's conduct makes it unjust that he should succeed in his claims to a joint interest in the Work or to have revoked the implied licence for the defendants to exploit it. The judge should have taken a broader approach to the application of the delay defences. In particular:
(1) Matthew Fisher is guilty of excessive and inexcusable delay in asserting his claim to title to a joint interest in the Work. He silently stood by and acquiesced in the defendants' commercial exploitation of the Work for 38 years. His acquiescence led the defendants to act for a very long period on the basis that the entire copyright in the Work was theirs. They controlled the commercial exploitation of the Work without any reference or reward to him.
(2) His acquiescence has made it unconscionable and inequitable for him to seek to exercise control over the commercial exploitation of the copyright in the Work. The combination of a declaration of a joint interest and a declaration of revocation of the implied consent would enable him to control future commercial exploitation by means of a final injunction against the defendants. For this reason declarations (2) and (3) should be set aside.
(3) If the implied licence has become irrevocable by acquiescence Matthew Fisher cannot claim damages for infringement of copyright, or any share of the monies collected by the copyright collecting societies, or obtain any contractual right for payment of royalties in the future as the price for granting an express licence for the exploitation of the copyright in the Work. For these reasons the order for an inquiry as to damages since 31 May 2005 should be set aside."
I am not a specialist in copyright law but this seems like pure common sense to me.
It is alright, Mr King, I have not prefaced the caption with anything that might in your belief system be associated with your christian name.
“This may sound ridiculous, but I do believe that I’ve been called to be a lawyer.” Peter King, a corporate partner at Shearman & Sterling in London, knew within two days of starting his law degree at Cambridge that he had found what he wanted to do for the rest of his life. “I don’t know why,” he says. “There was just some chemistry.”
It would be overly cynical to suggest that Christian faith and being a lawyer are mutually incompatible. I think of all the lost souls slaving for the Legal Services Commission. They certainly manage to combine being lawyers with holding irrational beliefs. I do not mean that they believe in a god. They may or they may not. But they subscribe to an even more improbable belief; namely, that the UK government will one day treat them fairly. The probability that this is true is much lower than the probability that a god exists. This proves only that some lawyers suffer from delusions. If I add that I have met many very able lawyers who used to or still do legal aid work then I must accept the proposition that there exist lawyers who are good at their jobs but cleave to irrational beliefs.
I have recently referred to Thomas Cromwell (Henry VIII's lawyer) in a post. He professed belief in god. But then he had to and was probably just a cynical liar and a hypocrite.
There is no compulsion on Mr King (i.e. no threat that his head will be chopped off if he does not at least pretend to believe in god) and I fully accept that his belief in god is genuine (albeit deluded). See my previous post on Dawkins.
I just find his thought processes somewhat confusing. He ascribes his "calling" to the law in terms of "chemistry" rather than "theology". What branch of chemistry is he referring to? The most likely answer would seem to be "alchemy". Mr King has certainly turned his talents (if not lead) into gold. Thus, if he does believe in alchemy, that may not count as an irrational belief at all.
“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.
“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.
The Times prints the words before the colon in the title above between inverted commas. That is not strictly accurate. The exchange in court was in fact more chilling:
“I crouched down from behind where the legs were,” he said. “I took full advantage of someone and I should not have done it.” His counsel Anthony Glass, QC, asked: “Do you mean you had sexual intercourse with her?” “Yes,” he replied. Mr Glass asked: “Did you think she was dead or unconscious?” He replied: “I would not have expected to see anyone dead in that street. I thought she might have passed out or fallen over.”
Remember this next time you come across a disadvanteged female in the streets, blokes. Never mind the ambulance or the police; just get your trousers down. Also, fully brief your counsel on the "that street" defence and the "she might have only been unconscious" defence. If all else fails, get your mitigation in first and tell the court you were a naughty boy and "should not have done it."
This his own counsel questioning him! What is prosecuting counsel going to do with this? Does he/she have to do anything? This is a reservoir dog of a client.
His counsel admitted that this may be "a very unattractive defence."
STARTLING QUIZ QUESTION:
Who is in pole position for having made the biggest understatement of the year: Mr Dixie or his counsel Mr Glass QC?
Mark Dixie Revealed
TOPICS FOR DEBATE:
1) Mark Dixie is innocent of murder unless the jury are persuaded beyond a reasonable doubt that he is in fact guilty.
2) Mark Dixie is a disgusting human being and a reservoir dog on his own admission.
3) Thank goodness for the cab rank principle. Otherwise, Mr Dixie would have little hope of decent representation. (NB: the cab rank principle means that barristers are not allowed to turn down unpleasant cases).
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.
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."
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.
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.
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.
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.
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.
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.
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.
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.
"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”.
Youwill 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.
In its anxiety to empty our prisons the government has enacted two incompatible regimes for early release and developed an unlawful non-statutory policy in a botched attempt to reconcile them. That seems to be the gist of Mr Justice Mitting's judgment of 31st January, 2008 and uploaded today on BAILII in the grandly entited case of:
THE QUEEN ON THE APPLICATION OF REBECCA NOONE Claimant v (1) GOVERNOR OF HMP DRAKE HALL (2) SECRETARY OF STATE FOR JUSTICE Defendants
I will not tire you with further details mainly because that might prove difficult or "impossible" in anything under the length of Mr Justice Mitting's full judgment. As he said:
"Section 174(1)(b)(i) of the Criminal Justice Act 2003 requires a court passing sentence to explain to an offender in ordinary language the effect of the sentence. This requirement has been in place since 1991. These proceedings show that, in relation to perfectly ordinary consecutive sentences imposed since the coming into force of much of the Criminal Justice Act 2003, that task is impossible. Indeed, so impossible is it that it has taken from 12 noon until 12 minutes to 5, with a slightly lengthier short adjournment than usual for reading purposes, to explain the relevant statutory provisions to me, a professional judge."
I simply supply a link to this judgment and some choice extracts:
"The position at which I have arrived and which I will explain in detail in a moment is one of which I despair. It is simply unacceptable in a society governed by the rule of law for it to be well nigh impossible to discern from statutory provisions what a sentence means in practice. That is the effect here."
AND:
"Mr Patel advanced the submissions which he canvassed before Dobbs J in R(Steven Highton) v The Governor of HMYOI Lancaster Farms and the Secretary of State for the Home Department [2007] EWHC 1085 Admin. Mr Weatherby, who appears for the claimant, drafted grounds of appeal in that case. Both are therefore thoroughly familiar with the complexities of the legislation and the difficulties to which it gives rise. Both have made helpful and, insofar as it is possible with legislation of this obscurity, clear, submissions about its effect."
This is a serious legislative cock-up caused by an interaction between the multiple incompetencies of various stupid people. The Defendants to be indicted are:
Parliament (which includes a number of members who could not make a profit from running a whelks stall on Blackpool beach but have considerable expertise in claiming for expences incurred as MPs) for passing legislation in a state of panic and without proper consideration; and
The Parliamentary Draftsmen/Draftswomen (who never have run a whelks stall, or, indeed, anything else) for not reading beyond their immediate brief; and
The Ministry of Justice (whose employees do not know what a whelk is) for its belief that it can do what it likes regardless of, or more accurately, in complete disregard of, the law by applying "unlawful" policies.
These people (and I mean all of them) present a clear and present danger to your and my human rights.
QUIZ QUESTION:
In less than 250 words summarise the law relating to sentencing for criminal offences in England and Wales.
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?
Please accept without obligation, express or implied, these best wishes for an environmentally safe, socially responsible, low stress, non addictive, and gender neutral celebration of the winter solstice holiday as practiced within the most enjoyable traditions of the religious persuasion of your choice (but with respect for the religious or secular persuasions and/or traditions of others, or for their choice not to practice religious or secular traditions at all) and further for a fiscally successful, personally fulfilling, and medically uncomplicated onset of the generally accepted calendar year (including, but not limited to, the Christian calendar, but not without due respect for the calendars of choice of other cultures). The preceding wishes are extended without regard to the race, creed, color, age, physical ability, religious faith, choice of computer platform, or sexual preference of the wishee(s).
Sandwiches
Two lawyers went into a cafe and ordered two drinks. Then they produced sandwiches from their briefcases and started to eat. The owner became quite concerned and marched over and told them, “You can’t eat your own sandwiches in here!” The attorneys looked at each other, shrugged their shoulders and then exchanged sandwiches.
Coca Cola
Click the title to read and watch and hear the coke joke.
This is an old case, just made available on the internet, but perhaps typifies the litigious nature of Harrods under current management:
How many other stores can sell you an elephant? Buy your stocks and shares? Arrange a safari in Africa? Engage a Black Watch piper for Hogmanay? Insure your life? Paint your portrait? Find you a house? Clean your silver? Give messages to your friends? Find a school for your child? Decorate your home? Send you on honeymoon?
"Find a school for your child" not run a school to educate your child.
Thus Harrods sued the Harrodian school for trading on its reputation and causing it loss which would sound in damages (and probably close the school).
Harrods lost at first instance, but they appealed. Ridiculous is one of the adjectives that springs to mind.
Yet the really surprising thing is that they only lost the appeal on a 2-1 majority.
Lord Justice Millet got it right. Pay careful attention to the the laconic final sentence of the following paragraph from his judgment:
Over the years Harrods has offered a vast range of services. These include a bank (established in 1890) which carries on business under the name "The Harrods Bank", a travel agency, shoe repairs, jewellery repairs, the supply of school uniforms for more than 90 fee-paying schools, a golf school, livery stables, piano tuning, a wedding service, funeral undertakers, auctioneers estate agents and surveyors, a lending library,a post office, a theatre agency, a travel bureau, an insurance agency, house removals, dry cleaning, and opticians. In the days of the empire it fitted out children of parents living overseas for school in England, and could even be used to find a suitable school for a child; but these services have long been discontinued. It has from time to time introduced new products and services and discontinued others. It no longer supplies elephants.
And it does not and never has educated children. Some may be glad of that.
Unaccountably, to my mind, Sir Michael Kerr dissented. I can only refer you to his judgment in its totality but I cite the following:
The use of the adjectival form of their own name will become lost to the plaintiffs; but the false impression of a connection between the plaintiffs and unconnected businesses using the name "Harrodian" will proliferate. The plaintiffs' reputation will become involved with their fortunes or misfortunes, and become a hostage to them. In my view the plaintiffs have done nothing to deserve this detriment, nor the defendants this benefit.
It is not fair to judge this passage with the benefit of hindsight but it was absurd at the time and it remains absurd today.
The Harrodian School still exists (visit their site) and I cannot think that anyone associates it with the rather silly department store that shares part of its name.
I have not confirmed this with them but I do not believe that the Harrodian school has ever sold elephants or has any intention in the future of selling elephants. Elephants will not ever be available on this blog or my main site.
I will never ever compete with Harrods in any way or form. I promise you this, Mr Al Fayed. Please do not sue me.
Never let it be said that I do not report miracles.
Apart from the headline article you can view a typical Daily Mail response by, well, clicking on Daily Mail. I hope that will not be too confusing for Daily Mail readers. If it is then they can click here.
A cat's affinity for dying people is hardly unusual in a nursing home.
Cats are wonderful beings and so unlike dogs and humans. Their insouciance is unsurpassed by any other creature. They have an individuality and a complete disregard for man-made law that renders them supremely admirable. Yet, they are not wholly anarchistic and will be lovable and comforting to their human companions when it suits them.
It is the "when it suits them" bit about cats that dog-lovers hate. A dog will obey orders. A dog will fetch a stick but a cat will only fetch a small rolled up ball of silver paper if it happens to be in the mood for a game. If it is not then it will toss you a disdainful look indicating that the whole idea of this game at this time is simply beneath contempt. You will then end up apologising to the cat. No-one apologises to dogs.
Here, in Worthing, England, cats stroll across the road and if they see a car coming, they lie down in the middle of the road and start washing themselves. The car stops. The horn is tooted. Eventually, the cat gets up and strolls nonchalantly to the same side of the road it had come from.
It has made its point. Cats rule. Humans are merely servants or slaves to the cats' needs.
NB: This is an old one just now made widely available on the BAIILI website.
There was an all star cast for this case including Lew Grade, Anthony Quayle, Coral Browne, Anna Massey and Corin Redgrave. Yes, the two separate branches of the acting profession combined here!
A Mr Littler thought he was being shafted when his four stars served notice to expire on the same day that they would be leaving, again on the same day 28 days later. It was accepted by the court that this would terminate this successful play.
Mr Grade (as he then was) represented all of the actors through one of his companies. All of the resignation letters were in essentially the same terms.
Mr Littler thought that it was a conspiracy to get him out of the theatre because Mr Grade wanted to move another play into the theatre.
Do you agree? I will not spoil the ending. Read this one.
Mr. Dunn's antics are hilarious and it is very difficult to understand why anyone would ever instruct him.
His behaviour reminds me of the worst kind of litigant in person. The kind who get disqualified from pursuing further actions without leave of a High Court Judge.
But he is a barrister. And he is absurdly incompetent.
This is a judgment I recommend you to read. I have not the time this evening to provide selected extracts but may do so over the weekend.
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 interview with Mrs Charman reported in The Times is fascinating for family lawyers in many respects but I only want to focus on her extraordinary comment on pre-nuptial agreements.
"The wife who secured the biggest divorce award in British legal history backed the Court of Appeal judges over the need for prenuptial agreements.
Beverley Charman, 54, told The Times: 'I would definitely have one now and I would advise my sons to have them. But at the time we married we had no expectation of money.' "
Let me make absolutely sure that I have understood this:
(1) Does Mrs Charman mean that she would have agreed to a pre-nup, if Mr Charman had wanted one, before they married?
(2) Alternatively, does she only mean that she would want a pre-nup if she were to remarry?
She says "now" so I think the answer to (1) is probably:
Well, who knows, but I am bloody glad I didn't because I would not have this megafortune in the bank.
The answer to (2) would then be:
Absolutely yes. Do you think I want some passing fancy to walk off with my megafortune in the bank?
She then refers to her sons entering into pre-nups. Perhaps she is concerned about them marrying women like herself who are "not greedy"?
She conducted the interview at her solicitor's office. She may have been advised what to say. Who knows?
Whoever wrote the script, the only keyword thhat sums up this comment and, indeed, the whole interview, is hypocrisy - of the breathtaking variety.
This is a headline from the London Times of today's date.
Cynics amongst you will want to comment that the first two words of the title must be unique so far as truthful news reports are concerned.
This reminds me of a joke repeated several times in Michael Connelly's The Lincoln Lawyer (a real page-turner):
"What's the difference between a catfish and a lawyer?"
"One's a bottom-feeding shit sucker and the other one's a fish."
With minor variations this joke is available all over the internet so the ascription to Michael Connelly is hardly necessary but I still am enjoying his ingenious courtroom drama. I'm saving 50 or so pages for later.
Mrs Yvonne Cole stepped in a disused hole designed to accomodate a maypole. Quite how serious her injuries were is not revealed by the Court of Appeal judgment as the value of her claim has not been considered. Proceedings had been confined to liability.
She won in Brighton County Court.
The Royal British Legion appealed to the Court of Appeal and won.
Read their judgments (and weep) by clicking on the title.
The pastoral meanderings worked for Lord Denning but they do not work now. A lot of crap about village greens determined the law on this one.
The Divorcing Reality website now exists. There is much more content yet to be uploaded but a working design has been achieved and some content is there.
Our beloved professional experts now have something to trouble their consciences. Well, not really. Nothing much does seem to trouble those consciences.
When my firm could afford to do legal aid work I did a number of child care cases and the thing that really troubled me was the dispassionate approach of the so-called experts.
"Dispassionate" sounds like a word you would want applied to your "approach" as a "professional". It is different for each professional involed:
The Lawyer for the Parent
Not so for lawyers involved in this kind of work. What you need is a solicitor who is "involved" and "passionate" but also one who can stand back and be "objective".
It is a big ask and I have unbounded admiration for those of my colleagues who still do this kind of work in spite of goernmment restrictions on legal aid. (As a side note, I may hold the record for resigning from franchises with the Legal Services Commission in that I have done it twice).
The Social Workers
I can only speak from personal experience as a lawyer who used to represent parents. I am biassed.
Social Services (the "SS") tend in my view to live up to their acronym.
They intervene on a lottery basis (there may be many worse families in the same street who do not attract their attention) but once they have done so they hang on like terriers. Nothing you can say will detract from their certainty that they are right.
The Local Authority Lawyers
Poorly paid and overworked as they are they should not do as, in my experience, they do do.
They are the ciphers of their colleagues in the SS. They inherit all the bad traits and contribute nothing. They are the prime examples of lawyers acting as mere "mouthpieces".
This is a direct quote from The Times and I cannot improve upon it by further comment. It is by Jack Malvern:
Two police officers who were asked to leave a pub for exuberant kissing were criticised by a magistrate for turning a drunken row into a police matter.
Nicola Stewart and Lisa Curchun, her girlfriend, both police constables, were asked to leave by Nicola Hackett, the landlady of The Old Cock Inn, in April last year. The pair reported Ms Hackett to their colleagues, who charged her with a public order offence. Penny Williams, presiding at St Albans Magistrates Court, cleared Ms Hackett and noted that the policewomen and two companions, who acted as witnesses for the prosecution, had drunk a “fair amount of alcohol” that night.
Ms Hackett said: “I can’t have my customers made to feel uncomfortable by public displays of passion, by gay or heterosexual couples."
Is Veronica Connolly's right to free speech infringed if she is convicted of sending malicious communications by posting pictures of aborted foetuses to pharmacists as a protest against their providing the morning after pill?
The court has, so far, ruled not. I say "so far" because it is believed there will be an appeal of today's decision.
One thing only is clear about this case. There should be an appeal. Today's decision has unsatisfactory aspects that need to be clarified at a higher level; eventually, perhaps, by the European Court of Justice.
For instance, Lord Justice Dyson said this:
In my judgment, the persons who worked in the three pharmacies which were targeted by Mrs Connolly had the right not to have sent to them material of the kind that she sent when it was her purpose, or one of her purposes, to cause distress or anxiety to the recipient. Just as members of the public have the right to be protected from such material (sent for such a purpose) in the privacy of their homes, so too, in general terms, do people in the workplace. But it must depend on the circumstances. The more offensive the material, the greater the likelihood that such persons have the right to be protected from receiving it. But the recipient may not be a person who needs such protection. Thus, for example, the position of a doctor who routinely performs abortions who receives photographs similar to those that were sent by Mrs Connolly in this case may well be materially different from that of employees in a pharmacy which happens to sell the "morning after pill". It seems to me that such a doctor would be less likely to find the photographs grossly offensive than the pharmacist's employees. To take a different example, suppose that it were Government policy to support abortion. A member of the Cabinet who spoke publicly in support of abortion and who received such photographs in his office in Westminster might well stand on a different footing from a member of the public who received them in the privacy of his home or at his place of work.
Can a right to free speech be limited or varied according to the audience?
Article 9 of the Human Rights Convention provides specific protection of the right to freedom of thought, conscience and religion and the right to express those views.
Article 9(2) essentially allows restrictions where they are for the protection of the rights and freedoms of others.
Article 10 provides protection of a more general right to freedom of expression i.e. not resticted to the more specic matters in Article 9 (although, given the inclusion of the word "thought" in Article 9, you may have difficulty thinking up examples where both articles are not engaged simultaneously).
Article 10(2) includes a similar reference to the rights of others as does 9(2) but is qualified by the important distinction that the limitation must be necessary in a democratic society.
This, to me, is the key. I am a fairly old fashioned believer in free speech. You can say anything you like. This should be subject only to the laws relating to defamation but these only create private rights of action that should not restrict you from saying what you want to say in the first place (at your own risk) and not a criminal sanction*. That is the core concept in defining a democratic society. It is so fundamental that this decision must be appealed and that is totally regardless of Veronica Connolly's views about abortion and the morning after pill and whether or not you do or do not agee with them.
This is an important case and you can read it here.
*Yes I am aware that we have a law relating to criminal libel. How many prosecutions, annually, do you think there are?
You need to know that a PMOS is a Prime Minister's Official Spokesman - something like, but not much like, Tony Blair's representative in this dimension. Why the PMOS was allocated this humiliating acronym (pronounce it) is anybody's idea but looks and sounds very much like a Civil Service internal joke against the PM. Of course, it could just be incompetence.
Asked if he still thought that e-petitions were a good idea, and what numbers would have to be reached before Government put its hand up and retreated, the PMOS replied that it was always a good idea when there was a lively political debate. We had always recognised that there was a lively debate around transport as it was an issue that directly affected people's lives. Therefore, the livelier the debate, the better. But the debate in itself would not produce a solution. The crucial point about this issue was that doing nothing was not an option.
What he missed:
A petition is not a "lively political debate". In fact, it resembles a lively political debate about as much as a bendy bus resembles a red squirrel. The bendy bus and the squirrel are both red (but not quite the same shade). So, signing a petition and expressing an opinion are both indicators of viewpoint (but not quite in the same way).
Pressing some keys to register on a petition probably (but does not necessarily) require you to be alive (you could have set your computer to autofill before you died) but it certainly does not require you to be "lively" or to engage in any kind of "debate".
What he meant:
"We have to pretend that you are a nice bunch of sentients, and flatter you a bit, but we don't mean it and we are going to ignore your trivial attempts to resemble us."
The reality:
There is, however, a resemblance between a PMOS and a PM and one which they share with both the bus and the squirrel. They are all "bendy".
He is also reported as follows:
Put to him that we could not just ignore this petition if it got to 2 or 3 million names, the PMOS replied that it was not a matter of numbers.
What he missed:
When it comes election time, it most certainly is "a matter of numbers".
What he meant:
"This petition thingy was thought up by a pratt who has now been reassigned to dustbins and I do not mean that he is engaged on high policy issues concerning refuse collection and recycling. He is emptying them."
The reality:
This policy represents a nasty piece of paper that the government intends to place in the nearest dustbin as soon as everyone's back is turned.
One last report of what the PMOS said:
Asked if the Prime Minister thought that cannabis use was a bar to becoming Prime Minister, the PMOS replied that the journalist was trying to invite him, not very subtly, into political debate. He may have lost his voice at Croke Park yesterday, but he had not entirely lost his mind.
What he missed:
The use of "not entirely" suggests that the PMOS is only a bit mindless. Surely a fit for purpose PMOS should have an entire mind? Did the Civil Service Board miss something or is it just what happens when you become a PMOS? Do you have to volunteer or are PMOS's appointed? Do all the eligible civil servant's quickly find cupboards to hide in and the idiot who can't find a cupboard gets appointed? We need to know. Without this information it is completely impossible to judge the culpability of this particular PMOS or just how egregious the PMOS is. A public inquiry seems to be an immediate necessity.
What he meant:
"I'm out of mind on drugs. Why else would I be standing here in front of you?"
The reality:
The PMOS has a partner, four children, a cat and a huge mortgage. Bearing in mind that civil servants are unemployable in the private sector unless they are perceived to retain departmental influence, the PMOS needs to keep the job at any cost. The PMOS also does not relish emptying dustbins.
Conclusion:
Peeing on moss is what the dear old CS does best! They identify a futile activity, form a committee to decide whether to do it, decide after long and costly deliberation to do it, expend minimal effort, fail utterly and charge us on the basis that, well, it might have been a good idea.
Daniel Finkelstein of The Times has posted a new competition that lets you get to play at being a rule-maker. Just click the title to play and you are an instant Parliamentary Draftsman.
Lawyers love rules. Not only do we have thousands of statutes; we then have procedural rules, with lots of commentary and case law on those.
No litigator leaves the office to go to court without volume 1 of the White Book (this not only contains the Civil Procedure Rules but lots and lots of commentary and case references).
The bare bones of the CPR can be found here but you will not really be equipped to engage in the fine art of legal combat unless you acquire a copy of the White Book.
Volume 2 is taken out for a walk less often because:
the lawyer does not wish to risk a finding of contributory negligence for carrying too much weight should he trip over or fall down any stairs and want to sue someone; and,
his opponent is less likely to refer to something in volume 2 that he or she is not already aware of (it is largely a collection statutes etc. already available elsewhere); and,
hernias are bad for one's practice. NB: women can get hernias as well as men.
Each volume is bigger than the average house brick, and weighs as much or more, so they are a clear and present danger to anyone who carries them around. I suppose they could also be useful as a weapon of defence. Also, they do not carry the same risk of being had up for going equipped as you might if you were carrying an actual house brick.
But lawyers love the White Book. Assiduous study of its many thousands of pages of procedural law (printed on thin paper and with the notes printed in tiny type) have won many a case. The main use is therefore as a weapon of offence. Not by throwing it but by being aware of its contents.
The notes in the White Book keep lawyers employed. Years of training are necessary to understand these procedural rules (!) and the arcane and delphic utterances of the Court of Appeal and the House of Lords upon what they might or might not mean lead to the conclusion that, since they (the Lords and the Lords Justices of Appeal) cannot agree, I might have been right so you cannot get me for negligence if I advise you the wrong way.
Well, you might pot me - given what I have said above - but every other lawyer is safe.
"Put your money on red," I might have said. I might have explained to you that there was a limited chance of the ball hitting black (given the current state of the case law) and virtually no chance of a green (zero or double zero). In a casino I would have given you different advice. I would have told you that it was entirely random. I would have told you that there was no such thing as the law of averages.
Casino type advice is now required by our pro-active judges who demand that we practice clairvoyance rather than law and nowhere more so than in the family courts. I will post further about these anathema on another occasion.
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.
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;
I have been told off recently (severely criticised would be another way of putting it) for trying to present a child's point of view via a letter sent by the child to me. This was in the context of a financial dispute between the parents but the child's views were highly relevant to the outcome. Who was the child going to live with and how did that impact on their respective financil needs?
I was therefore heartened to read the following case:
Generally, solicitors are referred to in judgments in a manner that suggests that what the judge really thinks is that "if only you had instructed a barrister we might have listened to you." Preferably, a member of the judge's former chambers.
Wall LJ is therefore cited for the rarity of his sentiments:
"I pause at this point to note Mr F's determination to participate in the proceedings and to care for K, and to express my admiration for Mr F's solicitor, who in an extremely tight timescale managed to obtain public funding, master the documents and conduct Mr F's case. The same solicitor was equally proactive in making an application for permission to appeal and, although the application was out of time, we had no difficulty in extending Mr F's time for filing his appellant's notice."
The award goes to Tilley & Co although the individual solicitor is not named.
Whoever he or she is, I am sure that he or she would agree that a lot of his or her colleagues merit similar praise.
This is a cautionary tale for civil litigators who agree an experts' meeting too early in proceedings. You may be bound by the findings even if your expert has not had adequate instructions. Since this is not a matter of wide public interest, but crucial to civil litigators, I simply provide this quotation from Smith LJ that links to the judgment:
"I observed that in my experience it was unusual for a joint statement to be ordered, as it was here, before expert reports had been exchanged. We were told that this is not an uncommon practice in the Technology and Construction Court. It seems to me that there are dangers inherent in producing a joint statement until after expert reports have been exchanged. There is a danger that one expert might express agreement with the other expert which, on taking full instructions from his client after production of his report, he wishes to resile from. It appears that that is what has happened here."
"The walk down the passage was in fact recorded on CCTV and Sgt Morgan could be heard enquiring "yes" as the door was closed. There was some shouting and some seconds later the door opened and there had plainly been some altercation between the two men. The appellant alleged that Sgt Morgan had pushed him in the face and he repeated that on a number of occasions. He subsequently said that he had been grabbed by the throat. Both officers then made complaints about the incident. "
It was the tea!
"The appellant contended that it had been a racially motivated assault by Sgt Morgan. He sought to support his allegation by alleging that there had been inappropriate behaviour by the Sergeant all morning. He said that he had been treated in a contemptuous manner; for example, he had been required to make the tea, and had been required to answer the phone when in fact the Sergeant was much closer and could have answered it, and he contended that the Sergeant had been shouting and swearing at him. He was humiliated, he said, to be spoken to in this way in front of his peers when everyone was watching."
I am not a criminal solicitor or, more accurately, I am not a solicitor who advises criminals. I do not even advise completely innocent people who happen to have been arrested for something they clearly did not do. I send them down the road. I stick to my last. I am a civil litigator and that is it. Expect more of me and you will be sadly disappointed.
Gordon Bennett, you may say. With that lot involved this must be a momentous case of hugely significant public import involving fundamental questions of human liberties.
You may be wrong.
The yob (sorry, "persistent young offender") was detained for three hours at a police station. He only had "eight previous convictions, including three for violence" so naturally he complained that this was unlawful. How could they possibly suspect him of being involved in "an unpleasant incident on a bus in Leeds in which a number of youths attacked passengers"? Was it because he was on the bus? How dreadfully unjust!
You will want to read the full case (because you paid for it out of the legal aid budget funded by your taxes) but the nub of the conclusion was that the court was "entirely clear that, on any view, however one approaches it, the detention was lawful". An appeal may be being prepared now and my take on this case may be entirely wrong. I am not keen, however, on legal executives who carry around standard letters:
"Mr Conaghan informed the custody officer that in his view there was no proper basis for detaining the claimant since there was sufficient evidence to charge him and section 37 of the Police and Criminal Evidence Act required that he be released on bail or charged. Mr Conaghan produced a standard letter to that effect and it seems that that is a letter which he customarily carries with him and produces at police stations when a situation such as that which existed in this case arises."
Who wrote that letter?
IMPORTANT NOTE
No insult is intended to the current Home Secretary by the use of Mr. Blunkett's photograph on this posting. Mr. Blunkett is an emblametic Home Secretary and, anyway, the rapidity with which that particular job parcel gets passed these days means that even the internet cannot keep up. Who is the current Home Secretary?
PS: No-one has told Mr. B he's not HS anymore judging by his appearances (should that be voiceacts?) on the Today radio show.
The famously litigious Rupert Allason (the former MP also known as Nigel West, the spy writer) has added the adjective "incredible" to the judicially approved list of permissible descriptions of him. Unfortunately for him the word was not applied in a sense that expressed stupefaction at his might or majesty (e.g. The Incredible Hulk or, indeed, Einstein, Joyce or Lawrence). It was some of his evidence in court (under oath) that was found to be "simply incredible". See the full story here:
Check paragraph 9 of the above judgment before you sue me Mr Allason.
Other parts of RA's case were found to be "simply hopeless" and were not even appealed by him.
The following is mild and qualified. It is paragraph 28 of the judgment:
"In assessing the credibility or otherwise of the defendant's evidence, the Master had well in mind his conclusion (not challenged on this appeal) that the defendant's assertion that he was the beneficial owner of Croftdown was a defence put forward dishonestly and in bad faith, together with other instances of apparent dishonesty on the part of the defendant, such as his assertion (contrary to earlier correspondence) that he had not seen the Deed of Settlement, and the conclusion of the Bermudian judge hearing the divorce proceedings that the defendant had given dishonest evidence to him. The Master may also have been aware that the defendant had been criticised as a dishonest witness by Laddie J in Allason and another v Random House UK Ltd (in a judgement given on 16th October 2001) because, without naming it, he noted that the defendant had been an untruthful witness in England. Nonetheless, he made it clear in paragraph 46 of his judgment that those matters would not be sufficient to justify a conclusion that his present evidence was incredible. I consider that he was right to exercise that caution."
FURIOUS POLICE ARREST JACK STRAW
Judge Lincoln Crawford
