Wednesday, 24 November 2010

thanks for the feedback.....

We recently sought some feedback from diverse people on the new look of Kerseys website. Most of the comments have been positive and some 'constructively critical'. Quite a few of the suggestions for improvement we are aiming to incorporate over time. One or two have made suggestions to do things which we are not: we are not interested in presenting ourselves as slick, smooth, syndicated lawyers with lots of warm photos of models shaking hands and news items bought in from some anonymous legal news bank. We want to show what we do and actually come across as straightforward, professional approachable lawyers who are interested in the law as a developing, intellectual but practical subject; who know their stuff and who get stuck in for our clients without fuss. We hope our site, including our own news and blogs, reflects all that. Some have also said that's all very well but you need to sell yourselves too so we are adding a Recent Successes Page too.
However the most important feedback I have personally received (thanks Tim and Dave especially) was that I needed to tie my tie a bit better if it was going to be enshrined for a while in digital version on a website. So I turned to that excellent tome '85 ways to Tie a Tie', complete with it's intricate tie formulas, and have been practising the half windsor. Photos of the fruits of my efforts will appear shortly.

Friday, 5 November 2010

election court strikes again (after 99 years)

Phil Woolas, ex-Home Office Minister and Labour MP, best known perhaps for his lambasting from Joanna Lumley over Ghurka rights, has found himself on the front page yet again for the wrong reasons. He is the first person to be judged against by an the little-convened Election Court, for 99 years. His charge was under section 106 of the Representation of the People 1983 which makes it an offence to make a 'false statement in relation to a candidate's character or conduct unless he believes it to be true'. The case was brought by the Liberal Democrat Elwyn Watkins who lost the East Oldam and Saddleworth seat at the last General Election by 103 votes. The court, composed of two High Court judges who found themselves sampling a hotel in Saddleworth unexpectedly, found that the case was proved as Woolas has alleged that Watkins had received 'illegal foreign donations'. Woolas was not helped by an email before the court from an aide which said 'if he don't get the white vote angry he's gone'. The case was proved, Woolas has threatened the last resort of many disappointed litigants without a clear route of appeal, judicial review, and the 2010 election will be rerun in which, ironically, the Lib Dems are unlikely to win because election courts unlike common law courts cannot order the parties back into the position they would have been in if the default had not occurred, back in time to May 2010.They can only order the election to be run again in real time and due to the unpopularity of the Lib Dems since the Coalition Watkins is probably less likely to win this one than the last. In the meantime (wrongly in my view) Woolas has been disowned, indeed suspended, by the Labour Party, when in fact he probably went little further than many candidates in his electioneering propaganda.

Thursday, 5 August 2010

How the police kept the Venables indecent images trial secret

The trial and convictions of the 10 year olds Jon Venables and Robert Thompson for the murder of 2 year olds James Bulger in 1993 are etched on the minds of all of us who were around at the time. Jon Venables was released from prison on life licence in 2001. It has now come to light that he has committed serious offences on licence, including download indecent images of children and worse still posing under a female alias on the internet willing to trade her daughter for abuse in return for indecent images, to which charges he in the end pleaded guilty and now remains back in prison. Apparently, as we are now told, the offences only came to light because Venables himself contacted his probation officer fearing that his identity had been discovered and was in fear of attack. His probation officer said he would come round to help him move to a safe house and told him to gather his things. When the officer came round he found Venables trying to destroy the hard drive on his computer with a tin opener.

The Venables case raises all kinds of social and legal questions but I only want to concentrate on one in this post. The police faced a dilemma at the start of the investigation, namely how could they possibly resist a challenge by Venables' lawyers that he could not face a fair jury trial once the likely risk had materialised of his true identity being revealed.

There were two problems. The first was that criminal process starts in the local magistrates court, even though more serious cases such as that of Venables are later transfered up ('committed') to the Crown Court. This meant that far more people around: in magistrates courts there is constant traffic in and out of cases, as I recall from my days as a criminal lawyer, and there could easily be 30 people in one court room alone, either involved in a case, waiting for their case to come or departing at any one time, all of whom would have varying degrees of local knowledge. The local press hound is often there looking out for interesting leads. The odds of identification of Venables at that point was very high, thus scuppering the prospects of a fair Crown Court trial later.

Leading counsel hit on a rare procedure to get round this, one which I have never heard of it (but then that is why leading counsel is well,, leading). This is called a 'voluntary indictment' and means that a defendant can be brought straight before the Crown Court rather than through normal committal proceedings, on the authority of a High Court judge. Venables' lawyers did not object to use of this procedure as they were as concerned for Venables' safety as the prosecution were to bring him to trial.

The second problem was that whilst a worldwide anonymity order had been granted to protect Venables and Thompson upon their release in 2001 which prevented any court reporting that could identify them, this did not prevent reporting of proceedings in the Crown Court (presumably it was not considered at the time that they would commit further crimes and as a result needed further identity protection). The best that could be done was to issue to the media a further gagging order but this has to say that Venables had been charged, but no details given of the offences. Hence the furore of speculation in the media at the time, who were already aware that something was afoot.

It was still possible that Venables could be tried under an assumed name but there remained a grave risk of the true link being made by the jury between the man being tried for child pornography offences and Venables the child killer. In the event however Venables never appeared in court. On July 23rd, seen only on a laptop by the judge, he pleaded guilty to all offences and was sentenced to two years imprisonment.

Tuesday, 15 June 2010

How to complain effectively in life and everything

In my practice as a litigation solicitor over the last 25 years many people have come into my office with a bundle of papers representing a complaint about some service they have received and told me how frustrated they have become with the process of complaining.. From their experiences I have distilled twelve basic tips to help you on your way to effective complaint.

• Find out if there is a complaints procedure and if so get a copy of it. Many industries are now obliged to have a procedure and many others chose to have one. If there is no procedure work out to whom you should be sending your complaint which, if in doubt, needs to be someone who has authority to deal with it
• Write a summary of the background to your relevant dealings with the company (chronologies are often useful, but only key dates are necessary) and of the reason for complaining. Except in the most complex of complaints this should be no more than a side of A4. This will be your letter of complaint
• Be firm in your language but don’t get emotional, ‘personal’ or abusive. We can’t help it when we’re very cross but believe me it won’t help you to let this spill over and may make it less likely that you will be taken seriously. Calling someone a ‘bare-faced liar’ is unlikely to be necessary for you to succeed in your complaint and you probably can’t prove it anyway. Rather say they have made a mistake where possible. . We all make mistakes occasionally and establishing a mistake is often all you need to succeed in your complaint
• By the same token avoid irrelevancies e.g. it may be that one person in the company did spell your name wrong ‘on top of it all’ but is that relevant to your core allegation? All including it does is slow down the resolution process as the company tries to investigate and answer each item, relevant or not to the desired outcome
• Set out in the letter what you would regard as a successful outcome. Set out your losses although on the subject of compensation it may be best at this stage to keep the figure open to allow negotiation ( it is possible in some cases to get compensation for distress and inconvenience but usually this is a ‘negotiating issue’)

• It’s useful to remember and to articulate that you and the company have a common cause: to improve the company’s service for the future
• Let someone else check your complaint letter before it’s dispatched. Make sure the letter is dated and copies of all relevant documents are attached. Keep a copy of your letter and retain all original relevant documents
• Pace any chasing up. Companies are busy and you are not their only problem. Only the biggest ones have complaints departments. Make sure that they stick to their own procedure, but otherwise as a rule of thumb, unless your case is urgent, or alternatively very complex and time-consuming, it would be reasonable to expect an acknowledgement in 7 days and a substantive response in 28 days
• Take seriously any response, even if it rejects your complaint as long as reasons are given. After all, you may have been mistaken yourself.
• If you make progress, be prepared to negotiate. It is rare for one party to be wholly in the right, still rarer for them to be able to prove it. It is usually sensible to accept a deal as long as its reasonable, even if not ideal
• Decide whether to take legal advice. For very small value complaints this may not be an economic option. However many legal firms offer a fixed fee interview which may be a useful check on whether you are going about things the right way. A good lawyer will tell you whether he thinks you could do better or worse in court which may well determine whether you should settle. He/she may bring you down to earth or find a way to make your complaint more effective with some tweaking or see a way to get higher compensation. In some cases legal costs can also be claimed, depending on the type of complaint and its value.
• Finally, don’t let the complaint dominate your life, even for a second. There’s more to life than complaining

Monday, 31 May 2010

Saying it with flowers: a recent European Court decision case on internet searches and trademark infringement

A recent case has gone some way to clarify the law on use of tradenames for internet searching. The case concerned Google Interflora and Marks and Spencer. Type in Interflora and a Google search and you will get Marks and Spencer Flowers as the second sponsored link on the screen

Whilst I'm not a techie I believed it has something to do with the keywords behind the M&S site which might include the word interflora or similar. Understandably Interflora were not very happy about this and there is ongoing litigation between the two companies of which a recent European judgement is a staging post if hardly the end of the line. Part of the fire was directed at Google itself and whether it was guilty of infringement of the Interflora trademark for allowing this to happen. Google escaped on this one as the court held that creating the conditions for third parties to use a trademark did not mean that Google itself was using the mark. However the court held that third party advertisers could be liable 'in the case where the ad does not enable the average internet user, or enables that user only with difficulty, to ascertain whether the goods and services referred to therein originate from the proprietor of the trademark or an undertaking economically connected with it or, on the contrary, originate from a third party'. Thus confusion in the mind of the internet user is key to whether the law has been broken. No decision was taken about whether M&S had created such confusion, hence the litigation will have to go to further rounds. M&S will no doubt say no because it is clearly demarcated as a separate company selling a common product namely flowers.
Google itself could also be held liable as accessory to trademark infringement if it was informed by an injured party of illegal activity by a third party and failed to act promptly by removing or disabling the offending data.
Incidentally, if you type M&S flowers into Google you will only get the M&S site. Testimony it seems to M&S commercial muscle or possibly the muscle of its legal team.

Saturday, 15 May 2010

Fair votes: on their way to UK?

When I started Legal Eagle, about 18 months ago, I said that it would be as much about the politics of law as practical legal topics. Nothing could be more the politics of law than political reform itself and this is the topic of the minute as the new Liberal-Conservative coalition has committed itself to a referendum on a variant of proportional representation, the Alternative Vote System. This is turn could lead to a major change in the law.

Jimmy Carr the comedian has apparently recently declared that the easiest way to explain proportional representation is to someone who’s interested and already understands it. It is indeed a difficult topic when studied in academic depth and it is now incumbent on politicians to simplify the key concepts and explain why implementation of them in a practical way would lead to a much fairer voting system.

Actually pure PR is quite easy to understand. It’s the variants which are a compromise with element of our existing First Past the Post system which are more difficult to grasp.

I am now going to give examples of what an election result would be per 100 votes cast for different candidates under 4 systems:

1. First Past the Post (FFTP) – which is what we currently use in the UK
2. Pure proportional representation (PR)
3. Alternative Vote System (AV) – which is the system which should now be going to referendum as part of the Liberal-Conservation coalition programme
4. Single Transferable Vote (STV) which is ideally favoured by the Liberal Democrats, and by the Electoral Reform Society

Suppose there were 100 votes given in a constituency and there were 10 constituencies and the outcome was as follows:

Tories 49
Liberal 32
Labour 19

1. Under FPTP, Tories would be elected. If this pattern was repeated in 10 seats, they would get 10 MPs (hence the need for tactical voting in our current system)
2. By contrast, under PP, if this pattern was repeated in the 10 seats, allowing for rounding up, Tories would get 5 MPs, Liberals 3 and Labour 2
3. Under AV, if no candidate gets over 50% (as in example) the votes of the lowest candidate are redistributed on second preferences. Thus in our example the Labour votes will be eliminated. Let us assume that the Labour voters all gave Liberal as second preference. The Labour votes would be added to Liberals which would give Liberals 51, and the Liberal candidate would be elected. If this pattern was repeated in the 10 seats, the Liberals would get 10 MPs
4. Under STV, there would be one constituency comprising the 10 seats. So assuming the voting pattern was repeated the outcome would be:
Tories 490
Liberals 320
Labour 190
To get elected for one seat in the first round, a party would have to pass a quota of 100 votes. So in this example, the Tories would get 4 seats, Libs 3 and Lab 1, with 2 seats spare. The spare votes would then be reallocated on second preferences. But none of these gives any party another seat as they have all give second preference to candidates in the same party list. So we have to go to third preferences. Here the candidate with the fewest votes, the third Liberal are eliminated and let us say the third choice is Labour so Labour gets 110 and gets the 9th seat, with rounding up from 90 to 100 giving the Tories the last seat. So Tories get 5 MPs, Libs 3 and Lab 2 (the same outcome as pure PR in this case).

So one election counted four different ways produces three different results. I believe STV is the fairest voting system but there is no perfect system.

For more information on voting reform look on the site of The Electoral Reform Society.

Friday, 7 May 2010

UK election 2010: polling irregularites

I did not expect to be returning from my recent stint as part of an election observer team in Sudan (see last blog entry) to find my services might have been put to use in the UK as well. But I was wrong.

Insufficient ballot papers for the voters, voters names not found on the electoral register, people unable to vote due to slow processing before ballot closure, inconsistent decisions on procedure by polling staff faced with difficulties : all these things happened in the UK election last night, variously in Sheffield, Leeds, Liverpool and London, being our major conurbations. And we did not even have the obvious remedy to hand which the Sudanese government used when faced with the same issues, namely extending the period of election (in their case from 3 to 5 days, but the country is 10 times our size, is predominately rural and has nothing like our infrastructure).

It does our country no good internationally that these irregularities and mistakes should have happened. After all, one of the exports we are most proud of is our British democracy. Now it seems we are losing our record there as, regrettably, we have done elsewhere.

The UK Electoral Commission on polling night put the difficulties down to having to apply procedures first set in the Victorian era to a substantially increased electorate. But this just won't wash. Whilst the turnout in Thursday's election was up on the previous one (something which should be of course applauded, not seen as a problem) it is still down on the 1950s when turnout was over 80%. It is quite depressing to think that local authorities, who are responsible for resourcing and conducting the ballots, should have based their resource calculations for ballot materials and staff on what they thought they could get away with based on more recent lower turnouts, rather than on what was required for a healthy democracy, but this is the conclusion one is drawn to, especially in a climate of budget cuts due to the recession and public deficits.

So what is the legal position when people have been unable to vote due to these problems?

The Parliamentary Election Rules are set out in Schedule 1 of the Representation of the People Act 1983. In particular:

1. The Returning Officer for a constituency must provide each polling station with such number of ballot papers as in his opinion may be necessary (reg 29(1)) (my emphasis). It does not appear that this rule was followed in all constituencies

2. The Returning Officer must appoint and pay such clerks to attend the polling station as may be necessary. Whilst it is not acceptable for loads of people to take a chance and pour out of the pub, for instance, and expect to be processed to vote 10 minutes before close of polling at 10.00, if, by contrast, there were queues at 9.00, which were not processed due to insufficient staff, then there may have been a breach of this rule too. I would agree however that this 10.00pm rule needs amending in part due to societal changes. People are having to work more shifts (at call centres etc) and longer hours generally, plus are living further away from their work meaning that it is more difficult to get in line to vote early enough to exercise it in the evening

3. It is correct however that only voters who already had ballot papers issued should be allowed still to vote after 10.00, although it seems that this rule was not applied consistently as in some areas people were still processed to vote after 10.00. This raises the prospect of a legal challenge on this issue too as public law should always be applied consistently.

4. The appointed Registration Officer is responsible for preparing the Electoral Register and if names were missed off this due to clerical error this could also be the subject of legal claim by a disappointed voter.

5. Many postal votes have also 'gone missing' which could certainly be the subject of a claim

What is the remedy for a citizen who is disenfranchised by one or more of the above events occurring? The general remedy is the issue of an election petition in the prescribed form under the Local Government Act 1972, which will be heard by a specialist court called the Election Court. The outcome could be that an election in a particular constituency is declared void. Such a legal action could of course be expensive and would require specialist advice before it was embarked upon. It would only be a likely course where the collective disenfranchisement of voters could have tipped the balance in a seat another way than the outcome declared on the night. Maybe voters in one of the conurbations will club together and issue a petition.

The European Convention provides the right to vote and therefore it might be possible to sue a local authority or the Electoral Commission, as supervisor, for damages for denial of a Human Right. Counsel has suggested that £750 would be payable per disenfranchised voter. Maybe a settlement 'out of court' might happen early on.

But they shouldn’t have to go to all that effort to get their basic democratic rights.

May 6th 2010 was not a great night in the history of British democracy whatever your political allegiance and whether you are satisfied with the ultimate outcome or not. We can only hope that big lessons have been learnt.

Anthony Wooding

Tuesday, 20 April 2010

my time as international election observer in Sudan

I am currently out in Sudan, having completed my first role as an international election observer but unable yet to return home due to all flights been held back due to volcanic ash from an Icelandic volcano. This does at least mean that I will certainly be here for the announcement of the election outcome which is scheduled for Thursday.

Sudan is the tenth largest country in the world and the largest in Africa. It has an area of over a million square miles. In the north the population is predominately Islamic by culture although many are black Muslim rather than of Arab origin. In the south the population is African, mainly Christian by culture, although some are animist (pagan). Sudan was ruled by Britain until independence in 1956. The last free election was in 1986. The current Islamic goverment of Omar al Bashir took power in 1989. There had been civil war between north and south until 2005 due to the the south's claims for autonomy and resistance to sharia law. In 2005 the Comprehensive Peace Agreement was signed which allowed the south substantial autonomy by allowing the Sudan Peoples Liberation Movement/Army to form a government. The south has however remained unstable in part because of tribal tensions within its own borders.

I came here as a member of a party of 49, comprising seasoned observers, academics, lawyers and ex-military in particular under the auspices of a London based organisation, The Centre for Foreign Policy Analysis. My posting was to Malakal the capital of a southern state known as Upper Nile State. I recorded a video diary for 3 days, starting with the day of arrival the day before the election started on 11th April. I thought that this was the best way to record my immediate impressions of the election process.

This is my report at the end of the first day (April 11th):

And this is the second day.....

In the event the voting in the South was extended for a couple of days. We left Malakal on 15th and returned to Khartoum. We are now enjoying an unplanned stay at the Khartoum Hilton and experiencing much more of Sudan - it's history and culture - as we await the election result and also our return to UK arrangements.

Monday, 29 March 2010

laws of war

At first blush it might seem odd or at least futile that the law could get involved in war. For war is after all the antithesis of law. It is what happens when legal remedies break down and states use other means to achieve their aims or vent their grievances. But in fact there is law relating to war and it has a very long history.

Much of the law of war is predicated on the principle that the goals under which war is fought should be restrained to political ones (without judging for this purpose whether they are justifiable or not) and in particular shall not include unnecessary destruction and hardship.

This has lead to the formation of a number of principles which have been enshrined in custom and since the mid-nineteenth century in international lawmaking treaties including the successive Geneva Conventions which started in 1864 and Hague Conventions which started in 1899.

The key principles which have been developed are:
  1. Fighting should only be with enemy combatants, not with civilians. However it has always been recognised, to use a horribly euphemistic phrase, that 'collateral damage' is inevitable, and civilians will be killed in the cross-fire and moreover in the effort to destroy the enemy's infrastructure. The bombing of Hiroshima was justified on the basis that it would shorten the Second World War, a justification which is possibly dubious on strict interpretation of the laws of war, even if true. Unfortunately civilian bombing campaigns seem to have become pretty much the accepted norm since.
  2. Allied to the above, combatants have a duty to identify themselves as such. Essentially this means wearing uniform as bearing arms openly. Provided they do so they have corresponding rights, including the right to prisoner of war status. Suicide bombers, even if authorised by a state who regards itself at war, which is usually not the case, therefore cannot be combatants. Mercenaries are not combatants and are not therefore entitled to prisoner of war status. Mercenaries involved in the Angolan War of Independence in the 1970s were tried and shot by firing squad after defeat and this was probably not a breach of the laws of war. Spies are also in a very difficult position as, by definition, they do not identify themselves. It is worth saying that having non-combatant status doesn't mean you are not entitled to a trial and have human rights, but this maybe more a theoritical than real position in the case of mercenaries and spies.
  3. Prisoners of war must conversely not be treated harshly or punished in any way.

  4. When a conflict has ended, persons who have committed or ordered any breach of the laws of war, may be held individually accountable through process of law. Hence the concept of 'war crimes'. There have of course been numerous examples of action for war crimes in the 20th and 21st century, starting with the Nuremberg trials and leading through to the Tribunal for Former Yugoslavia which has tried Milosovic (who died before the trial ended) and is currently trying Karadic. In 2002, the International Criminal Court was founded, although it has not been joined by the major players, China,India, USA and Russia. It has opened investigations into Uganda and Democratic Republic of Congo for alleged atrocities.

It is often said that history belongs to the victors and this could be said of law too. It is usually the victorious who apply the laws of war, retrospectively, to the vanquished. There are of course some exceptions such as the eventual if half-heartened prosecution by US authorities of its own soldiers involved in the My Lai massacre in South Vietnam (and more recently Abu Grahib, Iraq) but the general proposition is probably true.

Monday, 8 March 2010

Marriage vows

A lot the work I do is dealing with legal problems. So it's nice to look sometimes and the creation of legal relationships not what happens when they go wrong. No legal relationship could be more important than the relationship of marriage.
It cannot be denied that in UK at least marriage rates are declining. A useful site which graphically illustrates this trend is One interesting statistic is that in 1950 a first marriage was taking place every 1.6 minutes whereas in 2000 it was one every 2.9 minutes although this is slightly off set by an increase in second marriages in the last decade or so. The figures for divorces for the same period are 15.9 minutes (1950) and 3.4 minutes (2000). Another site says that in 2oo6 there were 237,000 weddings, the fewest since 1895 when the population of the country was not much more than half what it is now: marriage-hits-lowest-rate-since-records-began-almost-150-years-ago. About 0.1% of adults marry every year.

It is also necessary to bear in mind that gay and lesbian couples may now enter into civil partnerships and there is some controversy over proposals to allow such couples to insist on a church ceremony. One civil registrar tried to claim discrimination on the ground that being made to officiate a civil partnership offended her Christian beliefs but her challenge failed and she was instructed to get on with the job. Some clergy are now similarly up in arms because any amendment to the Equality Bill approved in the Lords will allow homosexual couples to say that they are being discriminated against if they are not allowed to be married in church as hetrosexuals are: see Clergy-could-be-sued-if-they-refuse-to-carry-out-gay-marriages-traditionalists-fear

Nonetheless let us celebrate marriage. After all, although I may be in a minority I have been happily married for 22 years and I am sure a lot of others can say the same.

Marriage ceremonies can take place if registered by the Church of England or some other religious bodies or can be civil only provided they take place at authorised venues. For a full list of the latter visit map of weddingvenues. You will even find the odd zoo listed amongst all the stately homes (I don't know if you can choose the actual enclosure).

Civil ceremonies often allow couples to choose their marriage vows, although many are adapted from the 1662 Common Book of Prayer which contains: 'To have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love and to cherish, till death us do part'
Interestingly in the earlier prayer book of 1549, based on Latin texts, the wording was death us do depart'. I have tried to research the reason for the change and I think it was because the word depart changed its meaning (for those of you gramatically -inclined it became a non-transitive verb so you could no longer depart something or someone, only from something or someone). An alternative in the 1928 prayer book omitted the additional bride's vow of 'obey' and this seems now to have become the norm. I rather like the way liturgy gradually adapts to modern mores.

One interesting snippet to close. The Gender Recognition Act 2004 allows transexual people to change their legal gender. Before doing so they must dissolve any existing marriage. If their relationship is still strong enough couples can if they wish dissolve and then enter into a Civil Partnership, all on the same day.

Sunday, 7 March 2010

lawyers must be paid for telling the truth

I would like to mention a recent important Court of Appeal case which is about solicitors being paid. You might think that this is only of interest to my profession and that just mentioning the subject only serves to show that what a money-grabbing lot we all are ( I know several lawyer jokes - some are very funny, e.g George Burns: And God said: 'Let there be Satan so they don't blame everything on me and let there be lawyers do they don't blame everything on Satan'. More of the same on Warning: please ignore the ads for sleazy lawyers on this site). But bear with me on this one as the case establishes a very important principle for the operation of justice in this country, important to us all I think, which the first instance decision in the High Court put under threat.

The case, Buxton v Mills -Owen concerns a law firm concerns a client whose case on planning law began to look decidedly ropey and the client instructed the lawyer nonetheless to present an argument to the court which was untenable in law no doubt in the hope that the court would not realise it was being presented with a hopeless point. The solicitors rightly decided in these circumstances they had to withdraw. In the High Court is was held that if they did they should not be paid for the work they had done so far, implying that they should fight on or lose their fee.

Very often cases start off with unclear prospects and therefore require research of the evidence, and sometimes the law, before an opinion can be properly given. Or cases which look reasonable are blown out by a 'smoking gun' of evidence which could not be discovered until later in the day(and in some instances was deliberately concealed by the client).

Sometimes these developments just mean that to fight on is not worth the risk of costs and in those circumstances if the client is fully advised on the enhanced risks but still wants to fight on in the teeth of them, and pays any reasonable sums on account of costs required, the lawyer should continue provided there is still sufficient confidence in the solicitor -client relationship to keep it going (in practice though the relationship usually breaks down at this point as the solicitor advises the case should be abandoned but the client will not accept).

However even if the client has every confidence that the lawyer will pull it off, no lawyer can continue with a case that is untenable in law or present false evidence or withhold evidence that must be disclosed. Since the solicitors' ethical code must be followed this even raise the vista of a solicitor having to say to a judge (of course in the most persuasive way possible) in effect: 'I know my client's case is rubbish but he has suffered badly at the hands of the other party, so please find for him anyway'

In those circumstances, the lawyer must be allowed to withdraw rather than remain in such a position.

As Lord Justice Dyson has wisely said in Buxton v Mills-Owen ..'the common law rule that a solicitor is entitled to be paid for all the work he has done prior to termination if he terminates for good reason has been part of our law for almost 200 years'.

There are some lawyer jokes that must never be taken seriously. One, by Patrick Murray, is one of those: 'a lawyer will do anything to win a case, sometimes even tell the truth'

Saturday, 27 February 2010

court of appeal allows hindu cremations

A friend of mine Rambert (aka 'Ramby') de Mello was counsel in an important case decided in the Court of Appeal a couple of weeks ago brought by a Mr Ghai against Newcastle City Council :
The case decided that Hindus can have open air cremations. Forget the alarmist vista painted by some. It does not mean that we will be seeing dead bodies burning on land all over the country. What the case actually decides is that it is ok to have a cremation in a building with a roof which is open to permit the sun to shine on the pyre.

The legal history is interesting. The first case brought by Mr Ghai, an orthodox Hindu, was under the Human Rights Act. At that stage he did indeed try to assert the right to be cremated on an open pyre and not in a crematorium in accordance . The court took the view that whilst this right was part of his genuine religious belief and therefore fell within Article 9 of the Act, the prohibition was justified to protect public morals and he therefore lost the case. But in his second case Mr Ghai produced evidence that his belief would be satisfied if his cremation took place within a structure provided that it was by traditional fire and sunlight could shine directly on his body whilst it was being cremated. This second case turned on the meaning of the word 'building' in the context of the Cremation Act 1902 section 2 . The Secretary of State intervening in the case argued that a building has to be 'an enclosure of brick or stone covered by a roof' but Rambi said the natural and ordinary meaning of the word building was a construction which was relatively permanent and substantial and that a building could have gaps in the walls. If a cremation was conducted in such a building it would still be shielded from public gaze. The court agreed this time.
In a way the case is an example of how British law can adapt to new faiths and cultures. It is perhaps as much about our law as about the good old British compromise, reflected in our developing legal process. Mr Ghai amended his case and the judges were prepared then to find a way to meet it.

Wednesday, 17 February 2010

MP expenses, the Bill of Rights and getting rid of the Rump Parliament

You may have heard that some of the 5 MPs charged with offences under Theft Act 1968 relating to fiddling their parliamentary expenses have claimed the protection of the Bill of Rights 1689 in an effort to exempt themselves from facing trial. The attempt has caused some furore due to the highly charged nature of the issue, but as ever with such issues some of the comments on either side have generated more heat than light on the law.

The Bill of Rights was passed in December 1689 as part of the settlement inviting the Dutch Prince William of Orange and his wife Mary to the throne. It's background was an effort to consolidate the fledgling development of a constitutional monarchy and by enshrining certain parliamentary and civil liberties making sure that the country did not lapse again into the tyranny of the 'Divine Right of Kings' characterised by the Stuart era. (it is actually the nearest thing we have to a constitution at all, although some of its provisions served a much more political purpose: it barred Catholics from any succession to the throne).

So amongst other things the Bill stated that 'the freedom of speech and debates or proceedings in Parliament' ought not to be impeached or questioned in any court'. MPs are not immune from the law. Certainly if an MP committed an assault in the precincts of Parliament he could not escape prosecution - he could not claim 'sanctuary' as people could do in medieval times once they had got inside a church. Perhaps it is arguable that expenses rules and MP correspondence with the Commons Fees Office comes into a different category, more akin to 'proceedings' as envisaged in the Bill , but I doubt it since the essence is still a criminal charge. I also suspect that the MPs of 1689 would turn in their graves if they thought the Bill would ever be used in this way.

But to put the point about non avoidance of trial beyond any doubt one needs to turn to the words 'in any court' contained in the Bill. There seems to reason why the 5 MPs could not be 'tried' by their peers in Parliament if not in court although this rather limits the sentence to expulsion (and/or possibly a fine?) and they are probably all standing down at next election anyway. Also this route is unlikely to assuage public anger. More realistically, Parliament could waive any immunity to trial as it belongs to parliament as a whole not to individual MPs. The government could also pass a new law overriding the Bill of Rights for the very reason that we do not have an inalienable constitution. However it is doubtful that any law should have retrospective effect and so catch the 5.

'You have sat too long for any good you have been doing lately ... Depart, I say; and let us have done with you. In the name of God, go!'

This is what Oliver Cromwell said about another corrupted parliament, known as the Rump Parliament, in 1653 (pictured above).

Stretching and misinterpreting rules (in however absurd a way) is one thing. Claiming for reimbursement of a fictitious mortgage quite another. This parliament reminds us of the Rump Parliament. Many of its members will disappear at the next election, but a few need to pay a higher penalty and face the full rigours of the law.

Sunday, 31 January 2010

The art of cross examination

The following is an extract from a famous cross examination of an expert witness engineer by Sir Norman Birkett QC of Alfred Arthur Rouse who was tried for murder in 1930. Sir Norman Birkett was prosecutor and at the height of his powers. Alfred Rouse was accused of murdering a passenger in a car by setting light to it. The defence was that it was an accident. Defence counsel called an expert witness who claimed 'a very vast experience as regards fires in motor cars' and who asserted that the fire was caused by the junction in the fuel line becoming loose. The witness gave his evidence with great confidence. Sir Norman Birkett then began his cross examination......

A: What is the coefficient of the expansion of brass?

S: I beg your pardon?

A: Did you not catch the question?

S: I did not quite hear you

A: What is the coefficient of expansion of brass?

S: I am afraid I cannot answer that question off-hand

A: If you do not know, say so. What is the co-efficient of expansion of brass? What do I mean by the term?

S: You want to know what is the expansion of the metal under heat?

A: I asked you: what is the co-efficient of the expansion of brass? Do you know what it means?

S: Put it that way, probably I do not

A: You are an engineer?

S: I dare say I am

A: Let me understand what you are. You are a doctor?

S: No

A: You are a crime investigator?

S: No

A: You are an amateur detective?

S: No

A: But an engineer?

S: Yes

A; What is the coefficient of the expansion of brass? You do not know?

S: No, not put that way

This is a very powerful cross-examination technique. Although it has some flaws and is somewhat outmoded (see below) it still held as a classic teaching tool in law schools. The point is of course that it would have been difficult to challenge the witness directly on his conclusions without being something on an expert on car fires too, which Sir Norman was not. So Sir Norman goes instead for the jugular: the expert status itself. He also tightly controls the questioning, emphasizes it and directs it in such a way that the witness has nowhere to go. The cross-examination consits of a series of tightly paced 'closed' questions.
Today the repetition of the same point to give maximum drive to the same answer might be
criticised as too crude (even as a 'jury technique'). The judge might well say 'Sir Norman, the witness has answered. let's move on'. Also there was of course a slight risk - a risk which Sir Norman probably considered but calculated as negligible having heard perhaps the too self-assured evidence in chief of the witness - that the expert did actually know the coefficient of expansion of brass, which would have destroyed the point. Maybe he had an immediate supplementary question should this have been the case.

I did once see (in the Technology Court in Birmingham) an expert witness being comprehensively demolished on his expert credentials. Unfortunately for me, he was our witness. It was done very neatly but in a more subtle way. The other side had done their homework and found out that our expert chemist (the case was about the efficacy of a glue which had alleged failed causing gaps to appear in glazing: the glazing company was my client, the Defendant was the glue manufacturer) had previously published research and conclusions which were different from the ones he was now presented. A tough, truly confident and perhaps better prepared (rehearsed?) witness might have been able to stick to his guns and say, yes but I later saw that this research was wrong for xyz reasons and I reached opposite conclusions. But I think they calculated on the other side that he would be too taken aback by being reminded of his previous different conclusions that he would stumble. And he did. The other side's counsel I noted was made a QC soon afterwards.

Whatever the pros and cons and indeed theatre of these cross-examination techniques one must not lose sight of the fact that their success or failure can have life or death consequences for a case. That was literally the case for poor Alfred Rouse. The defence expert witness was discredited. Alfred Rouse was found guilty of murder. His appeal failed and and he was hanged at Bedford prison on 10th March 1931.

Friday, 8 January 2010

Snow and getting to work

The British don't do snow very well, presumably as it usually just comes for a short while and goes again quickly, not settling. So we don't really know how to cope when snow goes on for a few days and it's not worth committing masses of resources for this occasional eventuality.
Some workers are staying at home as a result of the snowstorms. Indeed they are often advised 'only to make essential travel'. But the strict legal position maybe a surprise and give the extra spur to make the effort to come in one way or the other.
As a starting point, employees are only entitled to be paid for the work they do. Therefore even if it is not the employee's fault, because he does not turn up for work (unless there is a provision in the contract providing for this which is unlikely), the employer is not obliged legally to pay him. Of course many employees may exercise some discretion in favour of the employee in these circumstances. He could overlook the point and it is also open to agree that the time is take as annual leave for instance. However as an owner- manager myself, as well as a lawyer, I know the difficult balance which has to be struck with the workforce to achieve fairness because there has to be sympathy for those who do get in as well and have to take up the absent ones duties. So it's not just a case of exercising generosity to those absent. One solution might be agreeing with the absent ones that they work some extra time when they get back.
Working at home of course is an alternative and this recent spell has caused me to accelerate my programme of equipping our lawyers at least with remote access to our network. If the facilities are there the law would imply that the reasonable employer would allow an employee to work from home at such times and conversely the reasonable employer would agree to do so if asked.
It follows also that (again unless there is a contractual provision) the employee is not entitled to claim additional expenses e.g, taxi or staying the night in a hotel, although especially as to the latter where necessary it seems to me to be a good exercise of employer's discretion to pay.
The position is somewhat different for those parents who have to stay at home because the school is closed, although the net effect may be the same: employees have the right to time off for emergencies for assistance in care of children (and indeed incapacitated relatives who depend on them) but this is unpaid.
The authorities are interested in the costs to public services (emergencies, gritting, schools etc) and the media are too. The entertainment media are perhaps less responsible on top of this: it always makes me cross as a responsible employer when DJs say 'take a duvet day today' and I have heard some of our 'national treasures' say it on Radio 2 (of course they don't operate in the world most of us do). The legal position, as ever, does not necessarily favour the same line and adds to the mix of decision to be taken.
On a final note, one of my partners suggested that we diversify from legal services into grit as it's clearly a valuable commodity. It would work well to promote law and grit: We could call ourselves 'Lawyers of true grit'?