The Mystery of the Missing Motive: Yusuf v The Royal Pharmaceutical Society

This case (see title link) is mundane except for the fact that there is no motive for the acts that got this pharmacist struck off the register.

Yusuf was found guilty of "the consistent, one might almost say systematic, alteration of prescription forms and the forging of doctors' signatures to authenticate the alterations." The Disciplinary Committee said that "his conduct involved dishonesty, abuse of trust, loss to the NHS and the signing of FP34C forms certifying that the drugs ordered on prescriptions had been supplied to patients, when [he] must have known that that was untrue." His conduct, they added, "amounted to fundamental breaches of the Code of Ethics."

Yet the Committee also accepted that there was no evidence of any financial or other benefit to Mr Yusuf from his misconduct. He was an employed pharmacist. The benefit of his fraud can only have accrued to the pharmacy itself.

It is difficult, in the light of those findings, to understand the why? of this case.
It is not common human experience for wrongdoers to commit crimes from which they never intend to derive any benefit.

We need Inspector Morse here. There would appear to be loose ends. You may wish to play detective so I suggest you read the case.

The Garlic Defence

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.

Ian Tomlinson: Murder Not Manslaughter?

In English law murder does not require an intent to kill. The following will also suffice:

(a) an intent to cause grievous bodily harm; or

(b) grievous bodily harm is the virtually certain consequence of the perpetrator's act.

The news that Ian Tomlinson died from internal bleeding seems to me to mean that investigation of the unknown police officer only for manslaughter is inadequate. A murder charge should not be ruled out at this stage.

TOPIC FOR DEBATE

Manslaughter would be an example of undercharging that would not be countenanced if the offender were not a police officer.

Margaret Haywood, The Brighton Sussex Hospital and Elder Abuse

Margaret Haywood went undercover for the BBC and secretly filmed neglect/abuse of elderly patients at the Royal Sussex Hospital in Brighton, England.

After the film was broadcast, the trust responsible for the hospital admitted and apologised for "serious lapses in the quality of care".

I think we can take it that this was the most anodyne formula the trust's lawyers felt they could get away with.

The Times reports today that the Nursing and Midwifery Council has found that Ms Haywood had prioritised filming over her obligations as a nurse and had breached patient confidentiality.

In consequence, she has been struck off and cannot act as a nurse. That is, her career has been destroyed.

Oh, by the way, it is also reported that all of the patients (subsequent to the filming) waived confidentiality. I would too. If I was a vulnerable elderly person and was being maltreated but with no means of doing anything about it, I would positively want someone, anyone, to do something about it and by whatever means possible.

Ordinary mortals will find the decision to strike this nurse off the register inexplicable other than as a protective act of revenge and as a blatant attempt to discourage others from blowing the whistle on National Health Service malpractice.

She did a greater service to these patients than the hospital or any of their other doctors or nurses.

I hope Margaret Haywood takes this matter further. I am sure she has access to proper advice and I can think of many lawyers who would take this case on a no win no fee basis.

The decision of the Nursing and Midwifery Council, on the facts available in the public domain, is an utter disgrace and wholly against the public interest.

An eye for an eye will make us all blind

I previously posted this as my Christmas message but you really should watch it.

An American Litigant in London

The case is Barclay v British Airways.

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.

Terrorist Mark Haddock Hides His Face

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:

There would have been more people in the cemeteries of Northern Ireland if we hadn't run people like Mark Haddock

But is that true? Others think that he put a lot of bodies there himself.

*GBH = Grievous Bodily Harm (for when you get away with murder)
*UVF = Ulster Voluntary Force (a Protestant paramilitary organisation)

Oh No They Didn't! The Compensation Culture.

The court has not held that Jeanette Cenet (nee McGlennon), the Claimant in this personal injury case, or Mr Maguire, "the alleged eye witness", were complete scam artists as alleged by the defendant, Wirral Metropolitan Borough Council. I emphasise the word "not".

This was despite the judge stating:

"There was a history of involvement by the claimant and her witness in similar claims. Mr Maguire, the alleged eye witness who gave evidence on the claimant's behalf, had himself submitted claims in respect of three highway tripping accidents in 1998, 2001 and 2004. In addition, he claimed to have been an eye witness to a similar accident suffered by Mrs Barry, another resident of Chatham Road, on 12 August 2004. That accident was said to have taken place on Chatham Road within a few yards of where the claimant's accident occurred. Mrs Barry's claim had been due for trial at the same time as that of the claimant (at the direction of the Designated Civil Judge, having regard to the issue of credibility arising from Mr Maguire's involvement as a witness in both claims); however, she discontinued her action the day before trial."

Luckily, some may think, the judge was able to uphold the Council's appeal on a different ground - i.e. the area where this trip and slip occurred was not, in fact, dangerous.

Go to the title link if you think that there is no compensation culture in the UK.

QUIZ QUESTION:

Is there a compenation culture developing in the UK?

NB: I am a claimant lawyer in respect of personal injury work. There are just some cases I would not touch.

In God's Name: UK Fundamentalist Stephen Green And His Cult

Dispatches tonight broadcast a documentary about fundamentalist Christians in the UK.

Stephen Green was the prime target so his website is the title link. Never let it be said that I do not give my opponents a fair chance to reply even in the form of getting their revenge in first.

Today at least, his website heads up with a reference to Jeremiah 46. Presumably, he endorses this chapter of the bible. I do not suggest he endorses my citation of the St James' version (which qualifies as literature). I am afraid he will have to live with that.

Now, this is a chapter of the bible quite as warlike as some things in the koran. I am puzzled therefore why Mr Green describes Islam as a religion created by the anti-christ. I am also puzzled why he cites a passage "against the gentiles" when he is one.

I set out below some quotations from the Dispatches programme. Some are reported speech because I could not type fast enough.

Unidentified speaker to schoolchildren:

People turned into a pillar of salt

He sent snakes to bite them… This really really happened.

The Headmaster of the school they run:

Using the bible to teach science really really helps.

Refuses to answer questions concerning school teaching that earth is 4-6000 years old.

Andrea the campaigning barrister:

4,000 years.

Islam is a false religion.

Mostly dodged questions.

Other unidentified (but same person):

I have tasted the goodness of God.

I don’t want you to barbecue forever.

The Sayings of Stephen Green:

I don't like it. (On being interviewed).

No I have not met anyone who stopped being gay because of our leaflet. (On the effectiveness of his mission to suppress homosexuality).

The judgment that is looming is the menace of islam – if that is not the judgment of God I don’t know what is. (On a competitor faith).

God has honoured us by visiting financial ruin on the producers and the theatres. (On Jerry Springer the Opera).

The bird pooh was a message from god telling me not to participate in the interview. (On bird pooh falling on his revered person).

Death And God And Burma

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.

SHOULD I KILL SOMEONE BECAUSE I BELIEVE IN GOD?

I personally believe this to be a bad idea,

Everyone is entitled to their own view, however.

God Kills 50,000!

Nothing new then.

Really quite a small take in Burma.

God kills about 56.5 million people a year or roughly 155,000 every day.

It amazes me that otherwise intelligent people want to believe in this Ultimate Terminator.

As for Intelligent Design, I could do a better job in my lunch break.

What, for instance, is the point of locusts?

Ok, I know, you need them to inflict plagues.

Mr Loophole Does It Again!

Those of you who are not criminal defence lawyers may raise the odd eyebrow at his successes but Nick Freeman has clearly earned his self-bestowed title of "Mr Loophole". Well, apparently, it is a registered trade mark. No doubt, this is to prevent unfair competition with such an otherwise likable man who is a stalwart of his local community.


His latest coup is to have successfully defended Andrew Flintoff against a speeding charge (87 mph in a 50 mph zone) because the notice was sent two days late.


I entirely agree that the defence, although technical, was entirely justified. The Crown Prosecution Service must be held strictly to statutory requirements for a successful prosecution.

I am not sure all of the non-lawyers who do not read this site anyway will necessarily agree.

That, however, is a matter for Parliament.

I do think legal aid criminal lawyers should be learning a few tricks from Mr Freeman. Surely, these defences ought to be available to all and not just the rich and famous who can afford Mr Freeman.

Hang 'em High

Another victim:

SOPHIE LANCASTER

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

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

Another victim:

DAVID MORLEY

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

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

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

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

WHAT THE LEGAL PROFESSION IS DOING ABOUT IT:

OUR MAJOR ISSUE: FISHNETS?

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

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

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

AND WHAT THE JUDGES ARE DOING:

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

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

And:

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

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

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

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

IS HE RIGHT?

Pascal's Wager

For no reason I need record here, I mentioned Pascal's wager in the course of a discussion I was having with The Firm's senior partner. In short form I summarised its terms as follows:

We cannot know whether God exists. He may; in which case we are damned if we do not believe in him. He may not; in which case no consequence follows whether we believe or not. Therefore, a sane man will place his bet on God's existence and believe with all his heart. This is because this is the only choice that has any possibility of a desirable outcome i.e. salvation.

The senior partner (who does have a belief system ecompassing matters beyond the material world) reacted instinctively (as most people do) that this was an intellectually dishonest, or, at least not an honourable reason, for believing in a god.

It occurred to me afterwards to re-read the original. Of course, this is considerably more nuanced than my summary. It is readily available at 233 of Pascal's Pensees published by The Gutenberg Project.

The whole of 233 should be read before criticising it and I quote only two extracts:

"If there is a God, He is infinitely incomprehensible, since, having neither parts nor limits, He has no affinity to us. We are then incapable of knowing either what He is or if He is. This being so, who will dare to undertake the decision of the question? Not we, who have no affinity to Him.

Who then will blame Christians for not being able to give a reason for their belief, since they profess a religion for which they cannot give a reason? They declare, in expounding it to the world, that it is a foolishness, stultitiam;[90] and then you complain that they do not prove it! If they proved it, they would not keep their word; it is in lacking proofs, that they are not lacking in sense. "Yes, but although this excuses those who offer it as such, and takes away from them the blame of putting it forward without reason, it does not excuse those who receive it." Let us then examine this point, and say, "God is, or He is not." But to which side shall we incline? Reason can decide nothing here. There is an infinite chaos which separated us. A game is being played at the extremity of this infinite distance where heads or tails will turn up. What will you wager? According to reason, you can do neither the one thing nor the other; according to reason, you can defend neither of the propositions."

and:

"For it is no use to say it is uncertain if we will gain, and it is certain that we risk, and that the infinite distance between the certainty of what is staked and the uncertainty of what will be gained, equals the finite good which is certainly staked against the uncertain infinite. It is not so, as every player stakes a certainty to gain an uncertainty, and yet he stakes a finite certainty to gain a finite uncertainty, without transgressing against reason. There is not an infinite distance between the certainty staked and the uncertainty of the gain; that is untrue. In truth, there is an infinity between the certainty of gain and the certainty of loss. But the uncertainty of the gain is proportioned to the certainty of the stake according to the proportion of the chances of gain and loss. Hence it comes that, if there are as many risks on one side as on the other, the course is to play even; and then the certainty of the stake is equal to the uncertainty of the gain, so far is it from fact that there is an infinite distance between them. And so our proposition is of infinite force, when there is the finite to stake in a game where there are equal risks of gain and of loss, and the infinite to gain. This is demonstrable; and if men are capable of any truths, this is one."

Well, perhaps a third, just to illustrate that Pascal was not unaware of the arguments that may be marshalled against him:

"Do not then reprove for error those who have made a choice; for you know nothing about it. "No, but I blame them for having made, not this choice, but a choice; for again both he who chooses heads and he who chooses tails are equally at fault, they are both in the wrong. The true course is not to wager at all.""

The Gutenberg Project's edition is a reproduction of the Dutton 1958 New York edition. This is a particularly good choice as the translation has an introduction by T.S.Eliot, one of whose comments is that "Pascal is one of those writers who will be and who must be studied afresh by men in every generation."

The purpose of this post is simply to encourage those who read it to do just that and to point them to an easily available translation of the pensees.

DNA Testing For All: The Abandonment of Freedom?

Philip K Dick

David Aaronovitch has written a striking article in The Times today that gives me pause for thought in my otherwise absolute commitment to freedom.

The visions of Philip K Dick become increasingly our reality as each day passes. This debate brings to mind in particular The Minority Report (also a Spielberg film).

This was the story in which the police arrested you before you did the crime on the basis of your predisposition to commit it.

DNA testing (together with near universal video surveillance) has brought the UK far closer to this "ideal" of detecting pre-crime than the US; and it is nowhere close to 2054 yet (when Minority Report is set).

TOPICS FOR DEBATE:

1) David Arronovitch has strong arguments in favour of a universal DNA database.

2) Philip K Dick, however, has a better "thin end of the wedge" argument.

I regret having sex with dead body of model: Understatement of the Year? Not Quite! His Barrister Outdid Him.

Mark Dixie Obscured

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).