an asbo too far?

Asbos (anti-social behaviour orders) have been an important tool in this government's fight against anti-social behaviour. As with many new legislative initiatives in this area there have been mixed results. Whilst some asbos have no doubt been found to give citizens of a given area much relief (although arguably this is at the expense of the next area where those subject to an asbo then turn their attention), there are also reports of young people being proud to have an asbo and merely gaining esteem from being 'awarded' one. There are also arguments that some asbos are too extensive or draconian or even oppressive as the person subject cannot work out what they can and cannot do whilst staying within the terms of the asbo. A problem of this kind came before the Divisional Court recently.

Plymouth County Council obtained an asbo against Mr Heron. Subsequently Mr Heron committed a number of thefts from shops in Plymouth city centre. The matter came before the magistrates again who this time ordered that Mr Heron was required:

1. not to enter the city centre or any part of a particular area, defined on a map
2. not to behave in a way causing or likely to cause harassment, alarm or distress to any person
3. not to have with him or carry any packaged, wrapped, bagged, new or unused goods or objects not belonging to him, except food, in any public place without a valid receipt or the consent of the owner of the packaged, wrapped, bagged, new or unused goods or objects in Plymouth.

The case went on appeal from Mr Heron. Condition 1 was upheld as both necessary and proportionate; it being a sensible condition to remove the defendant from the temptation of shop-lifting. However condition 2 was removed as being too imprecise and not designed to address Mr Heron's actual behaviour. Condition 3, unsurprisingly in my view, was quashed as unintelligible.

One has to question anyway what the magistrates thought they were doing with this condition. So it was ok to steal food? Why except food and not drink? If goods in his possession did not belong to him then one cannot see how he could have a valid receipt for them in any circumstances. The case emphasises the need for the law to be clear and precise and certainly not contradictory. In an effort to deal with a real mischief they had over strained themselves (probably on representations from the lawyer for the council) and ended up with something unclear and unworkable which was no good for the shopkeepers of Plymouth any more than for Mr Heron. Asbos are rife for this kind of problem.

Tenancy types

Many people in this country own land and that still tends to be the aspiration. They say an Englishman's home is his castle. Not so in other countries, France, Germany even the USA, where leasing property has always been as much as lifestyle choice and has never meant 'second best'. People are starting to think more this way here too, especially following the credit crunch which has taken us from not being able to afford mortgages to not being able to get them in the first place.

There also massive differences in tenancy types from a posh flat in Mayfair on a 100 year lease to a six month tenancy of a bedsit. Strictly the terms leasehold and tenancy are interchangeable as both describe payment of rent for an estate in land, but in practice the term leasehold is usually reserved to cover the former type of tenancy i.e the tenant/leaseholder has a fixed term of years which they have purchased by what is called a premium and for which they pay thereafter usually a very small ground rent and a service charge for services such as cleaning, maintenance, gardening etc. Such leaseholders feel that they are owners of their premises and need to distinguish themselves from other tenants who will usually be renting from the council, a housing association or on a six month let from a private landlord.

To make the distinction more exact in law, the long leaseholder, to give him his more usual epithet, usually pays a rent which is so low that he is taken out the extra protection from eviction which it is felt other tenants need as their occupation is so much more insecure, that is the protection of the Housing Acts or previously the Rent Acts. That does not mean however that such long leaseholders cannot be evicted for non-payment of rent or service charge or other breaches of the lease. Indeed I have had several cases in my career where this has happened. Usually however if the leaseholder cannot, or more usually will not pay as a result of bloody -mindedness, the mortgage company will step in and pay instead as they have the right in law to do to avoid what is called 'forfeiture'. Such forfeiture would otherwise mean the lease disappearing for the sake of (usually) a few hundred pounds of indebtedness and the consequence that not only will the leaseholder have nothing to sell on to recoup the premium but the lender would have lost their security too. Forfeiture however is a very technical subject and I do not intend to address it more here.

Outside these long leases, tenancies divide into those in the public sector i.e. council tenancies and those in the private sector. The later include Housing Association tenancies which were classed as a type of public sector before the Housing Act 1988 but now are assured tenancies in the private sector. However it many ways it is a distinction without a difference as housing associations usually grant fully assured tenancies which give very similar security to council tenancies, including often the right to buy. Public sector and housing association landlords are both known as social landlords and this area is known as social housing. There has also been a lot of buying of council stock by Housing Associations since the 1980s, encouraged by successive governments, which has meant that in some regions a big housing association looks and feels like the council. An example is Flagship Housing which not only owns almost all the social housing stock in Suffolk Coastal who have only retained some emergency accommodation for immediately homeless people, but is the housing association who is nominated from the Housing Register and under homelessness duties. Housing association tenants, like council tenants, could only be evicted on proof of statutory grounds, the most common of which of course is rent arrears, followed by causing nuisance and annoyance to other tenants. There are however some more obscure grounds such as under-occupation and over-crowding which are only applicable to council tenancies.

In the private sector, nowadays, fully assured tenancies have to be expressly created as in the case of housing association tenancies so most tenancies go by default to the poor relation within the assured category, namely the assured shorthold. The basic idea with shortholds is that the government (in contrast to social housing) wanted to create as much letting as possible from private individuals and companies to bridge the housing shortage and therefore needed to make it fairly straightforward to get back possession, consistent with giving tenant's some notice and protection so they have time to find somewhere else. The basic concept is that possession can be initiated by giving 2 months notice on or before 6 months of the tenancy expire. There are some technical rules (as ever with the law!): if you contact my office we can send you a free guidance note on this, prepared in this case mostly from the landlord's perspective as most of my instructions on shorthold possession is to landlords.

It is worth also making the point in closure that tenancy law is an area where it is still necessary to be familiar with old law because often each new statute, whilst changing the law for granting of future tenancies - usually it has to be said in the landlord's favour to a marginal or greater extent - preserves the existing provision for tenancies then extant. Thus there are a significant number of tenancies in the private sector still pretty bulletproof under the Rent Acts, some of which date back to the 1960s or even earlier. Also there are special provisions to protect agricultural workers and others who hold tenancies in return for employment and some species e.g. where a private landlord also lives on the premises i.e. letting out a room in his house, where there is even less security than the shorthold. A technical subject indeed and one in which it pays to have a long legal memory and a reasonably high legal IQ.

Holding people in contempt

Often people disagree with judge's decisions. As I say to clients when advising on the risks of trial, in the end it is the judge's opinion. Unfortunately, that's the opinion that counts but then again if you are not happy there is often a right of appeal, if you've got the stomach and the purse for more litigation. What you can't do is show your dissatisfaction but disobeying the decision. That's called contempt of court and can end you up in jail.



Contempt of court can arise in the following situations:

• disobedience of a court order. A very common one of these is refusal to abide by a contact (access) order to children. Mothers have occasionally jailed for sticking two fingers at orders giving access right to fathers (and vice versa) - indeed there have been cases where such parents - know in the trade as 'implacably hostile' - have had custody decisions in their favour reversed as a consequence too. Another example is where people have injunctions against them, possibly for harassment, but also for other things, including cutting down hedges, and fail to obey the order.


• failure to attend court despite an order for requiring attendance. This can be sneaky penalty for someone who is a reluctant witness in a case: the judge can order an officer called the tipstaff to arrest them and bring them before the court to give testimony. Usually however a grovelling apology combined with belated obedience will still suffice


• a less used one is contempt in the face of the court. This includes clear examples such as having a go at the judge - verbally or even physically - or generally interrupting the proceedings. Such contempts are in part the reason for security measures at court (although I sometimes think those at Ipswich are a bit OTT for our humble parish - there are usually two security officers on the door to search you as you go in as well as bounce you out presumably if you are contemptuous although I have never seen the later happen). This contempt does not have to be in the court precincts if it relates to a case currently before the court. Witnesses who are still giving evidence at the close of the court day are told that they must not discuss the case overnight with anyway for fear of tainting their evidence. So if they met other witnesses in the pub that evening they could be in contempt, unless they could show the case was not discussed (risky).


• a rather separate contempt limb is directed at journalists and is under the Contempt of Court Act 1981. It is a criminal contempt to publish anything which creates a real risk that the course of justice in proceedings will be seriously impaired. This does not of course prevent faithful accounts of the day's unconcluded proceedings, including the evidence given, as long as no opinion is given. As I say to my clients, it's only the judge's opinion what counts.
  

Legal poetry

There aren't many poems about the law. Perhaps not surprisingly because the law is regarded as dry, of the mind not the spirit, perhaps even dull to the uninitiated.

But on the other hand, I have known many lawyers and even some judges take poetic licence with the law occasionally...

Anyway here's one poet, W H Auden, who was brave enough to do the reverse and take poetry into the law. Perhaps a weaker effort from the writer of such greats as 'Stop the Clocks' but a valiant effort in a tricky marriage.




Law Like Like Love


Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
To-morrow, yesterday, to-day.
Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.
Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.
Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.
Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.
Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.
And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.
If we, dear, know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,
No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyway:
Like love I say.
Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.

Law of negligence - the mysterious case of the snail in the bottle

The last post was on the basics of contract law, one of the principal cornerstones of English common law. So I thought this time I would go for the other one, tort. It is of course not a word non-lawyers will be familiar with, but it essentially covers the categories of civil wrong which are not based on contract or statute. The main torts which spring to mind are trespass - to the person, to land and to goods - nuisance and negligence. This time I am going to talk about negligence.

The essence of negligence is that people should take reasonable care to avoid causing harm to others. It practical terms it covers many types of claim people will be familiar with e.g road traffic accident claims, accidents at work and claims for mistakes by professionals and others.

For a negligence claim to arise there has to be a duty of care, a breach of that duty and foreseeable loss. These terms have been argued over for decades. The leading case is Donoghue v Stevenson, a case heard in 1932. Donoghue claimed that she had become seriously ill as a result of imbibing a bottle of ginger beer which had the decomposed remains of a snail in it. She wanted to sue the manufacturer but of course there was no contractual relationship between her and the manufacturer. In a famous dictum, Lord Atkin developed the principles which have more the a ring of The Bible about them, expounding that you must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour i.e. love thy neighbour as thyself.

Reasonableness crops up a lot in negligence and indeed in law generally. There is often talk of the reasonable man who used to be called the 'man on the Clapham omnibus', to indicate he had the common touch, and values, of all right-thinking members of society. Of course today he would have to be the man, or woman of course, on the Nintendo Wii, but you get the point. What the reasonable man should care about and foresee, the Defendant in the case should have foreseen, and if it wasn't right, taken steps to avoid it.

In passing, it is important to remember the judges cannot create law, at least in theory. Therefore when some students say the the law of negligence dates from 1932, this is strictly wrong. It would take some historical jurisprudence research (which I think I would enjoy, if I had the time) to trace back the common law before this but Winfield and Jolowicz on Tort says the judges had been led astray by some fallacious dicta in a case of 1842. Presumably before that it was the man on the sorrel horse who held sway. It is fascinating how the law of negligence adapts to new circumstances in society, whilst keeping of course the core principles intact if reinterpreted in a modern way. There are cases now about duty of care owed by the army to soldiers, which thought would have been unthinkable of course at the time of the Crimean War (see an earlier post of mine). One area which I think is ripe for development within the law of negligence is irresponsible mortgage lending. There are cases where it is clearly foreseeable that the borrower will not be able to repay under the loan terms. It's true that the borrower has breached the contract but what duty did the lender owe tho him in selling the loan? Is it justifiable that the lender should take his house when he knew or ought to have known that there was no real prospect of the borrower keeping to the instalment terms? I have a case in this area running at the moment which is going to appeal from a possession order. Will the new Lord Atkin please stand up?

WHAT IS A CONTRACT? (and being buried above Marilyn Monroe)

• My last post was about the Marx Brothers and their entanglements with contracts both on and off screen. It occurred to me could I do a more serious short post about what is a contract. The purpose of this blog is to reach curious non -lawyers not so much to engage will fellow legal professionals who I tend to engage with anyway. If asked could I accept a challenge to explain to the uninitiated what contracts are all about, but not in the way we learn at Law School?. After all, along with negligence, it is probably the cornerstone of common law. In almost every first interview the word crops up and perhaps I don't always take the time to explain the principles. I am going to do this on the radio show next week as well.
  
  So here goes.
  
  A contract is no more or less than an agreement. For there to be an agreement there has to be two or more people (a lot of people agree with themselves but they should not really). The key ingredients are:



• Offer and acceptance. One party has to offer some terms and the other party has to accept those terms. Silence is not acceptance but conduct can be examined to see whether the contract has been formed. In practice this area rarely troubles us because even if we can't find a formal 'I accept', the parties act on the terms. But it means you cannot accept by sliding in different terms (that is usually termed a counteroffer), and an offer can be withdrawn any time before acceptance. Also some contracts have formal requirements for formation (see below)



• 'Privity of contract'. Generally, only the parties to the contract are bound by it or can benefit from it. However there are some technical but not insignificant exceptions, particularly relating to land law (e.g. in the area of restrictive covenants) which I won't go into now. Also a significant blow was dealt to privity at the end of the last century by the Contracts (Rights of Third Parties) Act 1999 which allows persons who are not privy to the contract to enforce it if it was contemplated that they would benefit from it, unless such right is expressly excluded in the contract (which to be honest it often is, by astute lawyers)



• 'Consideration'. Generally for a promise to be enforceable the other person must not only accept but provide what is known as consideration i.e. some value back which is regarded as such by the promising party. This is usually money or property but it does not have to be. There is a principle that although consideration has to be have 'value in the eyes of the law' it does not have to be adequate: one penny will do if that's what the other party is happy with. A bid has been accepted for $4.6 million for the burial plot above Marilyn Monroe promising ' the chance to spend eternity above her'. People are entitled to have more money than sense in law. However there have been some cases over whether consideration has actually been deemed valueless. An example is White v Bluett (1853) in which it was held that a son had not provided consideration for his father's promise not to enforce an extant promissory note by promising in return not to bore his father with his complaints. However contrast Ward v Byham (1956) in which a promise by a mother to make an illegitimate child 'happy' was regarded as part of the consideration for enforcing the father's promise to make an allowance. Actually I think most of us can see the common sense of the distinction between the two cases - sons shouldn't really be moaning at their fathers anyway, should they?



• Intention to create legal relations. Some would-be contracts are not because they are deemed not to be seriously intended. Promises made in jest and anger can come under this. It does of course depend on the context and facts. A pay rise sought and promised in the jollity of the office party might not be a contract when if it talked about in the office it would be. I once got my daughter to sign a homework contract supported by the valuable consideration of certain privileges. Apart from the fact that contracts with minors are generally not enforceable anyway this would probably also fail the intention to create legal relations test, although she didn't know and I didn't tell her of course on either count.



• Finally in these key principles, some contracts have formalities that have to be abided by to make them enforceable. The most common one is to be in writing. It is always best to have a contract in writing anyway, as a matter of evidence.

Here endeth the lesson on contracts for the uninitiated. I hope you found it useful.

SLANDER AND PASSING OFF - THE GROUCHO MARX WAY

Between November 1932 and May 1933, victims of the Great Depression could cheer themselves up a bit by listening to the brilliant wit of Groucho and Chico Marx on the radio posing as attorneys at a small law firm in the States. The firm was called Flywheel, Shyster and Flywheel. Groucho was the eponymous Flywheel and there was in fact no Shyster in the firm, Chico playing Flywheel's assistant, Ravelli, to exploit his stage Italian accent. In fact the show was originally entitled Beagle, Shyster and Beagle but following the airing of the first episode a New York attorney called Beagle filed a lawsuit for $300,000 alleging his name had been slandered and that its use was damaging his business and health. He also claimed that people were calling his firm and asking "Is this Mr Beagle?"When he answered "Yes", the caller would say, "How's your partner, Shyster?"

The claim by Mr Beagle raised a couple of legal issues. Firstly, slander. Slander is a sub-division of defamation, which broadly is a publication which reduces someone's reputation amongst right-thinking members of society, libel being the written and slander the oral publication (actually as this was a recording I think it was actually technically libel). There is no need to prove intention to besmirch. I doubt Groucho and Chico or the programme makers had ever heard of Mr Beagle. Here however the defamation alleged was somewhat indirect i.e. that the programme had the effect of associating Mr Beagle with a shyster, a corrupt lawyer. I have no idea of Mr Beagle's pre-existing reputation as a lawyer but we must assume it was good or he would not have risked the lawsuit at all (plenty of celebrities have fallen for that trap: Johnathan Aitken, Oscar Wilde to name two). In addition, Mr Beagle might have been claiming any an action known as 'passing off', namely that his law firm had been confused with the one in the programme, to the detriment of his, but if so it is difficult to see how this would work since the radio one was clearly fictional. It is not a defence to say that the defaming statement was a joke but nonetheless it would have been interesting to see the outcome if this had ever come to trial - would right-thinking people (even those who were his clients) really think that Mr Beagle's firm was being portrayed in some way on the programme so as to link in their minds that he had a partner who was a shyster? It seems an action too far, but the producers and sponsors (who were in fact an oil company, Standard Oil) panicked and so Beagle, Shyster and Beagle became Flywheel, Shyster and Flywheel, a much better name anyway. The next episode explained that Groucho's character had divorced and resorted to his 'maiden name' (perhaps one of Groucho's little jokes in itself).

Groucho was no stranger to intellectual property law. On another occasion he did not back down. When Night at Cassablanca was being completed for release in 1946, Warner Brothers' legal department threatened legal action, presumably this time for breach of copyright, saying that the film's name was too similar to their film Cassablanca released four years earlier, starring Humphrey Bogart and Ingrid Bergman. The wittiest of men sent a typically brilliant Groucho style letter in response: 'You claim that you own Cassablanca and that no one else can use it without your permission. What about ' Warner Brothers'? Do you own that too? Professionally we were brothers long before you were'. Warner Brothers nonetheless persisted and insisted on seeing the storyline. Groucho responded by sending them a plot in which he would be playing 'Bordello, the sweetheart of Humphrey Bogart'. At this point, Warner Brothers gave up.

A blog entry on the Marx Brothers and the law gives me the excuse to mention what I think is one of the cleverest comedy exchanges ever written which is when Groucho and Chico argue about contract terms in Night at the Opera. This contains the immortal punchlines:

Groucho: That's in every contract. that's a sanity clause

Chico: Ah you can't afoola me. There ain't no Santa Claus.

SILLY STATUTES

On a more light-hearted note, I thought I would mention a few laws that have been on the statute book for a while which have perhaps outlived their original purpose. One such is the Servants Character Act 1792 , still alive and kicking. The preamble to the Act says it all: Whereas many false and counterfeit characters of servants have either been given personally or in writing by evil disposed persons pretending to be the master....of such servants. And whereas the evil herein complained of is not only difficult to be guarded against, but is also of great magnitude and continually increasing, and no sufficient remedy has hitherto been applied..'. The Act made it an offence to impersonate a master presumably because there were a lot of bad servants out there. Today we are more likely to be exercised by the bad quality of the master/employer than that of the servant/employee but nonetheless this quaint anachronistic law remains. Another one in a similar vein is the Disorderly Houses Act 1751 which addresses 'many subtle and crafty contrivances of persons keeping bawdy-houses' , in particular the mischief of not being able to tell who the true owner or keeper of such establishments might be so as to hold them responsible. This Act therefore provides that anyone who seems to have some control is liable (thus presumably encouraging further disorderly behaviour as no one would want to be seen to be in control). Coming more up to date there is section 85 of the Public Health Act 1936 which deals with 'cleansing of verminous persons and their clothing' and provides that a local authority may remove a 'verminous person' to a 'cleansing station' and detain him and effectively strip him of his clothing without his consent if a court deems it necessary that 'he or his clothing should be cleansed'. Finally in this category is the Hypnotism Act 1952 which provides for licence conditions for the conduct of public hypnotism, brought into play long before TV hypnotists became the rage. Perhaps this statute has more relevance today than the others and may not be such a silly statute although it certainly doesn't prevent us seeing a lot of silly (hypnotised) behaviour on the telly.

Pandemic Information

For up to date information on the current Swine Flu pandemic please visit the following website;
http://www.pandemicinfosite.com

12 TIPS ON HOW TO COMPLAIN

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.

· 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 and it should be brief and to the point
· 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 loses 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, marked 'complaint' and that 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. He/she should spot if there are any unenforceable exclusion clauses. 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!

HIGH HEDGES (including specimen letter of complaint to neighbour)

High hedges have been the source of much litigation. The main reason is that there is a clash of interests: one neighbour wants more privacy so grows his hedge height, the other neighbour wants light so wants to reduce the hedge height. The position in common law is that although you occasionally see an express right to light given in deeds, such a right is rarely implied in law, and where it is it is usually in a city environment where tall buildings are in close proximity and certainly not in your average domestic property context. You can take action in other situations which depend on the laws of nuisance or trespass e.g. if roots from a neighbour's tree cause subsidence you might claim damages and/or an injunction in nuisance, or if branches from a neighbour's tree overhang, they can be a trespass in your airspace and you can lop them off and put them over the fence. But at common law at least there is no general right to insist that your neighbour reduces the height of his hedge to give you more light to your property. However as a result of a number of fraught cases which might loosely be put under the heading of 'Battles of the Leylandii', the government enacted Part 8 of the Anti-Social Behaviour Act 2003 http://www.opsi.gov.uk/acts/acts2003/ukpga_20030038_en_1 . This gives Local Authorities powers to require the owner/occupier of premises to reduce the height of a High Hedge which adversely effects the reasonable enjoyment of a neighbour's property. The term High Hedge means a barrier to light and access formed wholly or predominantly by a line of 2 or more evergreens, and rises to a height of over 2 metres above ground level. If there are gaps in a hedge it may not qualify. If satisfied that there is a High Hedge as defined and that the neighbouring property is adversely affected, and upon completion of a complaint form and payment of the fee (currently £350, £175 for those on means-tested benefits), the Local Authority can issue a Remedial Notice requiring the owner to take steps to alleviate which usually means cutting the height of the hedge, although not to under the magic 2 metre threshold. Failure to abide by the Notice can result in a fine by the magistrates court, in effect making Leylandii abuse a criminal offence. However, the Council cannot accept a complaint unless parties have first tried, unsuccessfully, to settle a dispute without Council input. Evidence must be produced of such efforts. If you are the aggrieved person the kind of letter you might consider sending is as follows:

Dear Mr Hedges,

I enjoyed our talk the other day. I hope you enjoyed the lettuces from my patch!

I am sorry to write to you about what we spoke about then but I do need a response from you. I am only asking you please to discuss with me some lopping of your hedge by an agreed amount so as to allow some natural light to come into my living room, whilst preserving a height which will afford you all the privacy you reasonably require. Could we arrange another time to meet and discuss? I am advised that if we do not agree I can ask the Council to investigate which may result in their serving what is known as a Remedial Notice which would require you to reduce the height possibly as low as 2 metres. I do not want to invoke this procedure unless we absolutely cannot agree and I hope we can work together on this point.

Please give me a ring or email me. I look forward to hearing from you.

Yours truly,

......................................................

Happy hedge trimming!

Travellers' evictions

I have just completed a trespass case arising out of travellers squatting on some open land owned by my clients. I tend to get a number of these cases in the summer as travelling communities move around, perhaps looking for new work.

There are whole sections of the Civil Procedure Rules (CPR) devoted to the procedure for these kind of cases. The procedure can be quite fiddly and needs to be followed to the letter. There is a uniqueness insofar as the action is usually against 'persons unknown' and this has the consequence that there are peculiar rules for service of the court process. As far as open land is concerned service must be 'on a part of the land so that it is clearly visible' or by placing stakes in the land for the purpose of attaching the court process to this end. The latter was not possible in my recent case as the car park was tarmaced but we were able to affix to a nearby perimeter fence. The are rules about clear days of service before the hearing: 2 days (excluding weekends) is required for open (i.e. non-residential) land.

Courts can usually be persuaded to list these cases for hearing quite quickly, although a good relationship with the local court always helps! If the judge is satisfied that the procedure has been properly followed, the usual order is 'possession forthwith' but that is not the end of it as the order then has to be executed. The court bailiff has to be instructed by issue of a warrant. He will then visit to give formal notice of the actual eviction date to the trespassers. Usually the site is vacated just before this as the travellers move on elsewhere. I did have one case a few years ago when the same travellers moved to another client's site so I had two cases in quick succession!

It is very difficult of course to secure open land (which is why it is called open!) so although security measures will minimise the risk to some extent for farmers, councils and other major landowners, these type of cases are (literally!) something of an occupational hazard from time to time. My advice to landowners is see your solicitor immediately to get things going even if the travellers have agreed to leave in a few days as these promises regrettably are not always kept and precious time is lost. It does not mean that you should not keep a channel of communication going: rarely are travellers violent or abusive (whatever you may think of the morality of their actions) but they tend to know a certain amount about the law and may exploit your lack of it and particular any delay. They will often go, in short, only just before they have to go by law without being thrown off.

Nor is there any point in relying on the police. Whilst you should inform them to 'avoid a breach of a peace' their powers are limited. They can usually only rely on powers of persuasion, which causes further time to be lost, either because they do not have the powers, or where they do have the powers they lack the immediate resources. Unless there is some disturbance or damage, clear powers only exist for the police to move in when there are 6 or more vehicles and usually the problem is with smaller groups than this. http://www.urban75.org/legal/cja.html takes you to a ravers/squatters site where the police powers are summarised reasonably accurately as far as I have read it!

If you are the landowner, at no point take the law into your own hands and attempt force to evict. You could well commit a criminal offence yourself just by so doing. Nor should you do anything to put yourself at risk. This is surely a job for the experts.

Treasure Trove

Have you ever wondered what is the law relating to who owns hidden treasure which is later discovered? This is always a live issue, particularly in the summer months as enthusiasts trace over beaches with their metal detectors.

The law on this goes back to the time of Edward the Confessor, so is originally very much part of the ancient common law. To be treasure in the first place, objects had to be more than 50% gold or silver content. Next there had to be something called animus revocandi meaning it was hidden with 'intention to recover' (I love it when I can introduce legal Latin phrases - such a shame that modern law discourages them: they are so precise!). If this condition was established the Crown i.e. the state was deemed to own the treasure. Conversely, this meant that if the treasure was merely lost or abandoned it could not be treasure trove. There was then complicated law as to who could claim it: the original owner would still have the first ('superior') claim but subject to this the finder might be able to claim if he was legitimately on the land, but otherwise the booty fell to the landowner. In the case of the Sutton Hoo finds in 1939, close to home, they were not deemed treasure trove as there was no animus revocandi: it being presumed that as it was a burial site the treasure were not meant to be recovered, at least in this life! So Mrs Pretty , the landowner (I believe from the family who founded our rival firm, Prettys) had the best claim available, although she played fair and bequested the treasure to the nation in 1942. Incidentally as the essence of animus revocandi is hiding with intention to recover, if they true owner ever showed he could of course claim even if it was deemed treasure trove but this never happens as a fortiori so to speak they were dead long ago.

The Crown would pay a reward representing market value to the deemed finder. If there was a dispute about whether treasure was indeed trove a coroner's court had jurisdiction.

I recall that my old partner, Michael Sinclair, had a treasure trove case once under the old common law about who was entitled to what but sadly it is so long ago I cannot recall the facts of the case and he has now sailed off on his boat round the world so unfortunately I have no way of prompting my memory which is a shame.

Common law of a thousand years was changed by the Treasure Act 1996. The definition of treasure itself is changed. The new definition is complicated (statutes always complicate things). The Act can be found at http://www.opsi.gov.uk/acts/acts1996/ukpga_19960024_en_1 if you wish to see it in full but suffice to say here that treasure is now not just works containing gold and silver but also some works designated by the Secretary of State as of outstanding historical, archaeological or cultural importance' (prehistoric finds have been so designated). Any hidden treasure so defined now - even if lost or abandoned with not intention to recover - belongs to the Crown if the true owner is not around. As before the coroner must be informed of finds - it's an offence not to do so - and has jurisdiction by inquest over treasure trove. The Secretary of State for Culture and Sport (more power to Andy Burnham) decides whether to transfer to the Crown i.e. put in a museum, and the reward, which can now, to reflect the sad demise of our old friend animus revocandi, be split between finder and landowner.

Working and living in Ipswich

I am not an Ipswich person. I came to work here in 1990 and to live here in 1998 and my children have spent much of their formative years here as a result. When you come to work in a place and only later live in it, your feelings about it change over time. You see it first as an merely an extension of work. In my case, as a solicitor, I got to know first its courts and some of its offices and public buildings. Later I got to know Christchurch Park quite well as I wandered in there to eat my sandwiches in the summer months. As the children were young, I got to know its swimming pools (Charles Street and Fore Street), its libraries, its schools and more of its parks and sports facilities: but this will forever be my children's Ipswich, not completely mine. And in a sense also it is difficult for any place to be yours if you were not born there or spent your formative years there.

At the same time, I became a business owner and got to know more of the vibrant business community here, the voluntary sector, particularly housing and welfare groups, and the public sector i.e. the Councils and other state agencies, sometimes working with them, sometimes against them! I spent and spend some time socialising and networking on the Waterfront and elsewhere. I also became a parent governor at Northgate School and got involved with one or two charities.

But only latterly, in the last few years, have I had my own individual Ipswich experience. That experience has focused on the communal and cultural diversity of this town and finding things within it that resonant with me: such as, getting involved in art groups, doing projects with schools, working as a volunteer voice (legal and otherwise) at its local radio stations and bringing life right up to date, spending some time this year in meditation at the Ipswich Buddhist Centre. The latter is soon to be moved to a new and larger venue 4 Friars Bridge Road (across the big roundabout from the Willis Faber Building side), grand opening 11th July 2009. The opening of a new quasi-public building is an important staging post in My Ipswich, as it is important for the town itself and its ever expanding diversity of communal culture.

HUMAN RIGHTS BATTLEFIELD

On Monday the Court of Appeal handed down its judgement in the case of Private Smith v Ministry of Defence.
Private Smith died of heatstroke whilst serving with the Territorial Army in Iraq in 2003.
The case was not about compensation as such but about the narrow but very important point of whether Human Rights (specifically right to life) apply on the battlefield. In April 2208, the High Court ruled that the MoD had an obligation to minimise risks to the lives of its troops, even while on patrol or the battlefield. The MoD appealed but their appeal has now failed. The MoD has however permission to appeal to the House of Lords in view of the principle at stake.
Unsurprisingly, there are strong views on both sides of the argument. On one side, the view that the right to life has no place on the battlefield, which is essentially a place where people seek to kill and risk being killed themselves, all amidst what is sometimes called 'the fog of war'. Liam Fox, the shadow defence secretary put it thus in reaction to the judgement: 'Our troops and commanders have enough to worry about on the battlefield without worrying about where the next legal attack will come from'. On the other side is the argument that the Army needs to catch up with the 21st century. We have moved a long way from regarding our troops as 'cannon fodder'. They have a right to expect that management (i.e commanders) will develop plans that will not put them at any more risk than necessary. Perhaps it would have been a good idea if Lord Cardigan had carried out a full risk assessment before ordering the charge of the Light Brigade. However the actual effect of the judgement is likely to be more incremental. We can expect more open inquests on soldiers' deaths and some test cases - e.g. perhaps on the efficacy of military equipment? - but I doubt that the law would ever take us to the point where military tactics, however foolish in hindsight, will end up in the dock. The generals at the Somme would surely turn in their grave before that happens.

Trial update and court dress

The trial I mentioned on 4th May was held yesterday. I was successful in obtaining an order under the Access to Neighbouring Land Act. The strict rules of confidentiality forbid me from saying more. The case will not be reported as it was in the county court although if my client wished or consented the outcome could be published by me. The press now have pretty free access to the courts and sometimes they are present (which is possible if the case is in open court) or later pick up on cases and ask for a comment. I have had this experience occasionally.



I did have an interesting experience about court dress yesterday. Because the trial was in open court, solicitors' dress is not just a business suit but a gown, wing collar and bands (two strips of linen about 5" by 1" hanging down the front of the neck). Like the picture opposite but without the wig, which is only worn by barristers and a few solicitors who have 'higher rights of audience'.

But the judge has a discretion to disallow the dress and many modern judges do in civil (not criminal) trials, except when their could be serious outcomes for liberty e.g. a possible committal to prison for breach of an existing court order. I rang the court on Monday to check and the court officer (understandably erring on the side of caution) said she would check with the judge but this turned out not to be possible. So I thought I'd better wear my winged collar shirt, as mine is all in one: I could never succeed with studs. I brought an ordinary shirt as well in case. When we arrived for the site visit which the judge required before the trial started, the judge said that court dress was not required. So I changed my shirt to wear a tie but unfortunately the shirt I had brought required cuff links and I didn't have any. So my cuffs were loose and I rather unsuccessfully pushed them inside my jacket sleeves to hide them. When I got home my wife said I should have used paper clips, but I am not practical like her.

Joking aside, I think it is important to look smart in court not least so the client has confidence, on the principle that a man who looks good will inspire confidence in his arguments. When I was conducting a magistrates court case as a young man, I remember a 'regular lag' insisting on straightening my collar before I made his hopeless bail application (it still failed).

One old-fashioned judge told a sartorially-challenged colleague who was in full flow 'I can't hear you'. The colleague thought the judge was deaf so simply turned up the volume of his speech but the judge's complaint persisted. The judge eventually put him out his misery by telling him in effect that he had no right of audience as he was incorrectly dressed: I think he was wearing a particularly 'loud' waistcoat which perhaps was drowning out his speech!

Judges' dress is an entirely different story and a much more complicated one. When robed, the ranks of judges are indicated by the colour of the tabs:

• gold for Court of Appeal Judges
• red for High Court Judges
• pink for High Court Masters
• blue for District Judges

Government announces proposals for changes to dna database

The government has just announced proposals to amend the law about retention of DNA following a ruling by the European Court of Human Rights at the end of last year, Marper v United Kingdom. 

Cases were brought by two men whose DNA had been taken by the police but who had never been convicted. Michael Marper was charged with harassing his partner but the case was later dropped. He had no previous convictions. The other man was a minor when he was charged with attempted robbery but was acquitted in court. In both cases the police refused to destroy fingerprints and DNA samples taken when they were in custody. The cases cited breaches of Human Rights Act Articles 8 (right to private life) and 14 (prohibition of discrimination) but were thrown out by the House of Lords here. The ECHR found on the contrary that keeping the information breached the Human Rights Act and 'could not be regarded as necessary in a democratic society'. The government was very disappointed with the ruling but has to comply with it. However they are risking further challenges by their proposals which include deleting profiles of those arrested but not convicted after 6 years, extended to 12 years in the case of those arrested for serious violent or sexual crimes. The Home Office Minister Vernon Coaker made the rather extraordinary comment (unless he has been misquoted!): 'What we have found is that by keeping that DNA, people do go on to commit crime (sic) or their DNA is found at another crime scene'.

It is worth reciting a bit of legal history here. It was actually not until 2001 (about the time of the start of our government's erosion of civil liberties in response to the terrorist threat) that the law was changed to allow retention of samples of those found innocent. And not until 2003 that the police were allowed to take DNA and fingerprints without consent from anyone arrested for a recordable offence. Clearly a balance has to be struck somewhere but if you were arrested for a theft you did not commit and the case was dropped the next day, would you be happy for your DNA to be retained on the police computer?

But it is also true at the same time that murderers and rapists have been caught by DNA samples taken from previous scenes. The killer of Sally Anne Bowman was identified because police later took a sample from him after a pub brawl. A earlier DNA sample from Steve Wright, the Ipswich multi-murderer, helped identify him too, but this was from an earlier theft conviction so would still have been kept lawfully under the ECHR ruling.

There has been quite a lot of commentary on this as to how many years there should be retention etc but I think a couple of points have been missed. The first is that the government plans anyway to have a compulsory national database with biometric detail by stealth. It's called id cards. Of course we are assured that it's not intended for criminal investigations but equally one of the government's arguments for it is in the fight to identify terrorists. We also all know how legislation is used and/or amended for purposes not originally intended: CCTV cameras and wheelie bins come to mind. The other point is that an individual's DNA sample is related to the DNA of close family members. Home Office statistics say that the 33% of men and 10% of women under the age of 35 have a non-motoring criminal offence. The likelihood is that 80% of us are closely related to someone who has committed a crime if we have not committed one ourselves. So for these two reasons arguments about how long if at all we should retaining the DNA of the innocent may well be irrelevant.

The next question is how reliable is DNA testing. The answer seems to be very reliable indeed as long as the correct comparisons are made (I won't attempt to go into the science but there have certainly been cases where this has not happened) and of course we all know mistakes are made with retention, processing and handling of data , especially where government agencies become directly involved......

Ipswich Community Radio legal eagle (see Legal Links): Baby Peter and Lord Laming

This morning Graham Cleaver interviewed me about care proceedings. We talked about the Baby P case which hit the headlines at the end of last year and prompted a review of children's services by Lord Laming who also carried out the review following the death of Victoria Climbie in 2000. Unfortunately as Lord Laming commented, not much has changed since his earlier report. Lord Laming recommended then as now that agencies (social services, police, education) need to work much more closely together when a child is at risk and need to be more vigilant and where appropriate intervene earlier than now. But then as now, the problem is exacerbated by lack of resources. There are simply not enough well trained social workers. I know from my own experience representing parents (I used to do a lot of this work but decided to move into different areas about 5 years ago) and from friends who are social workers how sensitive and difficult this type of work is: it is really working on the sharp edge. Social Services Departments are often 'running with vacancies' which just puts more pressure on the staff remaining. Lord Laming recommends a national strategy to address recruitment and retention problems in social work as well as increased quality of degrees, but I suspect he did the same last time...

One thing that concerns me too is that having lambasted the system for 'over emphasis on process and targets' he recommends the introduction of targets for child protection, similar to school targets (and incidentally school targets are now less than flavour of the month and some are being dismantled). What targets does he mean - x number of children at risk to be taken into care with y time? Targets are a distraction at best and at worst can actually cause professionals to get their eye of the ball. What we need is better professionalism (and training), not more targets, in my opinion.

New Trial

I am preparing for a trial at the moment which is an application under the Access to Neighbouring Land Act. I don't think there are many precedents as most neighbours agree about access in the end rather than let the judge decide.

The Access to Neighbouring Land Act 1992 provides that where a landowner reasonably needs to carry out certain types of work to his property, but cannot do so without obtaining access over neighbouring land and lacks the right to exercise such access or the consent of the owner, he may apply to the court for an order (known as an "Access Order") permitting him, subject to such terms and conditions as the court may impose, to exercise the necessary access. The court will need to be satisfied: -

i) that the work is reasonably necessary for the preservation of the whole or part of the Applicant's land

ii) that the works cannot be carried out or would be substantially more difficult to carry out without an Access Order

iii) That an Access Order will not constitute an unreasonable interference or disturbance or hardship to the rights of the neighbouring owner

(reference Section 1(2) and Section 1(3) of the Act).