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).