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Archive for January, 2010

There were two important criminal law cases yesterday:  The so-called ‘have a go hero’ case and the case of a mother who killed her son through love.

Munir Hussain
The Independent reports:
“A businessman jailed for seriously injuring an intruder after the lives of his family were threatened by knife-wielding burglars in their home was shown “mercy” and freed by senior judges today. The Lord Chief Justice, Lord Judge, sitting at the Court of Appeal in London with two other judges, replaced 53-year-old Munir Hussain’s 30-month prison term with one of two years, and ordered that it should be suspended.”

The facts of this case are well known.  The case caused an outcry, prompting politicians  to respond ‘robustly’. Many lawyers took the view that the self defence, reasonable and proportionate force,  laws in this country are sufficient.  Many, including me, felt that the trial judge was right to sentence Mr Hussain and his brother to prison.  Chasing someone down the road and battering them so badly with a cricket bat that the bat broke and the victim suffered serious injury is not self defence.  It may well be a completely understandable reaction, but no matter how one looks at it, it is retribution.  It is vengeance.  iIt is taking the law into your own hands.

Today the Court of Appeal, headed by the Lord Chief Justice, Lord judge, freed Mr Hussain – but not his brother.  Mr Hussain was given a suspended sentence of one year.  His brother had his sentence reduced to a very merciful one year.The brother had not been subjected to threat and violence during the burglary.

The Independent noted: “Lord Judge said: “This trial had nothing to do with the right of the householder to defend themselves or their families or their homes…… (lord judge rehearsed the violence of the tack on the burglar)…..this was “not an ordinary or normal case or one that falls within the overwhelming majority of cases, not least because of the character of the two appellants”.

I have not read the judgment, so I am reliant on the Independent report. That being said.. this appears to be the key point..“Involvement in this serious violence can only be understood as a response to the dreadful and terrifying ordeal and the emotional anguish which he had undergone.”

This is not a precedent directly in the sense of being a licence for retribution.  These were exceptional circumstances. I watched a BBC report later in the day.  An ex senior police officer and a probation officer were brought on.  The probation officer said that experts, judges, commentators, lawyers and others can say what they like and it won’t make a blind bit of difference to public opinion.  The public, the probation officer said, were alienated from the criminal justice system and we only had ourselves to blame because we are not tough enough on young career criminals. The Police officer reinforced the sense in the judgment but did say that provided reasonable force is used when an intrusion is taking place, prosecution is unlikely.

We are good at shades of grey.  Our legal system is built upon flexibility. Too much definition or strict liability can lead to inflexibility and injustice. Today’s decision may well be one of those classic fudges where the rule and principle of law is upheld, the law emphasised by an experienced judge, and a degree of ‘mercy’ applied.  I’m not against that  type of justice.  I think quite a few people would suffer from a red mist after an intrusion. The thing is, would we have beat a man so badly with a cricket bat?  I’m not so sure and for that reason, I would prefer  not to see the law changed and in exceptional trouble cases… there is always the objectivity of  appeal.

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‘Mercy killing’ mother is jailed for life

The Independent reports: A mother who gave her brain-damaged son a lethal heroin injection to end his “living hell” was told today she must serve at least nine years in jail. Frances Inglis, 57, was given a life sentence for killing 22-year-old son Tom after he suffered severe head injuries when he fell out of a moving ambulance.

Reports reveal that Mrs Inglis made two attempts to kill her son, not believing medical advice that the son was showing signs of recovery, to put him out his misery.  The judge made the very important point,while acknowledging that her motives were born of love…“What you did was to take upon yourself what you thought your son’s wishes would have been, to relieve him from what you described as a living hell…..But you cannot take the law into your own hands and you cannot take away life, however compelling you think the reason. You have to take responsibility for what you did.”


Now the Royal College of Physicians slams the DPP’s plans for euthanasia

The Telegraph reports: “Poor Keir Starmer, the luckless Director of Public Prosecutions forced by some simpering Law Lords, who fancy the idea of euthanasia, into the impossible task of “clarifying” when it’s okay to assist someone to kill themselves, keeps being slapped down by medical professionals.

The British Medical Association and the General Medical Council have already made it abundantly clear that they want no part in voluntary euthanasia becoming a clinical practice. Now the estimable Royal College of Physicians, the professional body representing over 20,000 physicians that “aims to improve the quality of patient care by continually raising medical standards”, has weighed in with a strongly worded letter to the DPP.

“We would go so far as to say”, writes the College’s Registrar, Dr Rodney Burnham, “that any clinician who has been part, in any way, of assisting a suicide death should be subject to prosecution.”

I did a podcast on this topic with Lord Falconer (Listen to the podcast )  – an opposing view. Also with the DPP, Keir Starmer QC (Listen to the podcast)

THE SUPREME COURT

Twelfth Justice – How are we getting on?

“We thought that it was time to have an update on the appointment process for the twelfth justice.  As our readers will recall, some time ago applications for this post were invited – with a closing date of 26 October 2009. Since then, there have been no official announcements.   There was much press speculation about the possible candidacy of Mr Jonathan Sumption QC.  However, in December 2009 he announced that he was withdrawing his candidacy….

The saga goes on… but it is an important one….

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Jackson costs review divides market

I have read Jackson LJ’s report – thankfully this article from The Lawyer relieves me of the need to explore some of the more problematic issues – and it comes straight from the mouths of the people at the coal face.  I enjoyed reading it.  Definitely worth a read.

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And a bit of Social Media  Mavenry and Gurudom for the weekend, Sir, Madam?

As regular readers know… I am not enthusiastic about mavens or gurus droning on about social media – but I do like Brian Inkster and Chris Sherliker,  who are both regular twitterers… so I shall make one final exception. They usually make sense, so perhaps they will take a different view to a lot of the nonsense I have seen on the net about twitter and other social media and how lawyers can benefit. Brian wrote and asked me if I could flag this up… knowing of my views!. Of course… a pleasure….

This Friday, 22 January, at 3.30pm you can learn how UK lawyers are using social media. American Attorney and social media expert, Adrian Dayton, will be interviewing Glasgow Solicitor, Brian Inkster of Inksters Solicitors, and London Solicitor, Chris Sherliker of Silverman Sherliker, about their experiences particularly with Twitter. Adrian will be seeking to find out whether things are really that different in the UK from the US.  Are lawyers in the UK and abroad using social media to make connections and bring in business?  Or are UK lawyers too serious for Twitter? You can listen and join in by way of a free conference call by registering in advance at: http://adriandayton.com/2010/01/how-uk-lawyers-are-using-social-media/

I may, of course, listen in… so if they do talk nonsense, I shall run amok.  They would, I am sure, expect nothing less.  🙂

The Social Media Maven pronounces (2010)
Oil on Canvas
Charon

In the Collection of @ScottGreenfield

The painting comes from my F**kArt series. I have a couple to finish and then I start on tmy Surrealist period of paintings in late January!

PS… I will be posting out paintings to recipients soon… I am just a bit behind on my life at the moment… mea culpa.

 

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Poor behaviour by a British prime minister

Gordon Brown, like many who held high office before him, has to put up with a lot of flack, criticism and downright rudeness. That, I suppose, is inevitable in an intelligent and relatively free democracy.  Many of the slings are parodic or analytically fair  and most people, one hopes, are able to distinguish between the politician and the man or the woman when it comes to having a go at politicians.

Today, I watched Prime Minister’s Questions. I do most Wednesdays, although it has become less valuable with the electioneering going on.  Iain Dale covered the story, but what I saw at the end of PMQs when Brown dismissively answered Michael Fabricant’s question about the safety of a local dam, I found deeply unpleasant.

I excerpt from Iain Dale’s full blog post…

“Michael Fabricant raised the urgent matter of the leaking dam which holds back the waters of the Chasewater Reservoir today with the Prime Minister in the House of Commons……..Lichfield District Council officials have told Michael Fabricant that unless the dam is repaired soon, it could have “catastrophic consequences” with loss of life and property and the Midlands canal system running dry….”

Michael Fabricant: “….The small district of Lichfield does not have the funds to make the urgent repairs. Will the Prime Minister please use his best endeavours to ensure that the financial burden is spread over the region as a whole?”

The Prime Minister: Of course I will be happy to consider his point although I see that he is making the case for public expenditure.

It was like watching the boy in a class at primary school, the one who could never tell jokes, think he is making a ‘funny’.  It wasn’t funny. I found it rather unpleasant. This wasn’t, or shouldn’t have been, a party political issue. Brown should have given a more responsible and considered answer – that, after all, is part of the responsibility and dignity of a leader. He chose to make a cheap jibe. Disappointing.  Let us just hope that the dam does not break and that people do not suffer harm or worse.

It just gets worse… no wonder Labour politicians are frustrated.. no wonder Labour voters are fed up. Cameron is not popular.  He did not perform well at PMQs.  The Spectator is even speculating about whether Cameron can cut it.  Do we really deserve a government of the least unpopular? The country is not doing brilliantly.  We are fighting a war, terror, economic collapse and Brown is pleasuring himself with cheap jokes? Get a grip… or perhaps, in the circumstances…that… is an inappropriate metaphor for Brown.

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“The Hall at Middle Temple is one of the finest examples of an Elizabethan hall in the country with a double hammer beam roof carved from the oak of Windsor Forest and an elaborately carved screen made in 1574. The traditional oak panelled walls are festooned with Coats of Arms and the impressive windows are made from heraldic glass memorials to notable Middle Templars. The bench table is believed to be a gift from Elizabeth I. It is 29 feet long and made from a single oak tree which was floated down the Thames from Windsor Forest.”

Middle Temple

In these splendid premises, steeped in history, the ghosts of the famous barristers and judges of their day almost present at every dinner, now enjoyed by the famous barristers and judges of our day… there have been deeds which have reached the courts of justice.

The Telegraph reports…

A cellarman at one of Britain’s most prestigious barristers’ inns claimed he was sacked for trying to prevent his colleagues from stealing bottles of wine, a tribunal heard.

I was alerted to this story by a fellow blogger on twitter who has a new blog called Bleak Flat… a rather good name for a law blog. The Telegraph reports ” Ryszard Adolf, 52, claimed that The Honorary (sic)  Society of the Middle Temple knew about the “system” and used to charge customers for the shortfall. He claimed that kitchen staff would ask him for ‘takeaways’ of up to six bottles of wine a day. He told the tribunal: “I was ordered to give takeaway bottles to the chefs every evening, every dinner.”

Apart from the Telegraph referring to the Honourable Society of The Middle Temple as the Honorary Society – there was the wonderful news…. “David Read, representing Middle Temple, said that Mr Adolf had not co-operated with colleagues when he started work last January and would often leave his shift early. He also suggested that Mr Adolf would address waitresses at the Inn with the Polish word ‘kurwa’, meaning ‘whore’. Mr Read added: “Middle Temple had an investigation undertaken to see whether it was possible for there to be a fraud by members of catering staff and the conclusion was that no fraud was being perpetrated and it was nigh on impossible for members of staff to have personally gained from wine sales.”

Calling a waitress at The Middle Temple a ‘whore’? Mr Adolf could be forgiven for thinking, given our standing in the community at large, that some of the members may be rapacious in their financial desires… but to call a waitress a ‘whore’ does not quite seem in keeping with this splendid dining club!

A virtual bottle of Rioja, not ‘plundered’ from any Inn of Court wine cellar for any member of Middle Temple who can shed more light on the goings on at the Inn on dining nights… you may post your comments below… and please…. no wino companies trying to get free search engine optimisation… if you are tempted..I have a policy of re-directing any URL you provide to a dodgy ‘pron’ site! I can’t say fairer than that.

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I see that The Ministry of Justice has got the hang of twitter and social media benefits. I just could not resist the tweet above from Matthew Taylor of the MTPT blog.

I am a fan of twitter, although I tend to misuse it and abuse it and, ordinarily, would not bother to read any blog post or article talking about the benefits of social media to lawyers or, worse, sanctimonious blog posts from newcomers who have spent too much time drinking snake oil.  I do, however, always enjoy reading blog posts which take the piss out of social media mavens and gurus and the Grand Old Duke of New York, Scott Greenfield of Simple Justice, often marches his wonderfully acid twitter media posts up to the top of the hill and down again. His latest on this issue… The Square n00b Answer..is very amusing.

Greenfield starts…” Ever wonder how all the old-time lawyers jump online and screw it all up overnight?  It could be those bar association CLEs teaching how to be a blogger in 30 seconds or less, taught by lawyers who have never been closer to a computer than when they stop at the secretary’s desk to ask for a coffee refill.  Or maybe it’s reading something like this Corporate Counsel post at Law.com by Doug Wood from Reed Smith…….Yes, that Doug Wood, the man who launched a thousand twits and blogs with his thorough, yet persuasive, explication of why corp counsel need to “Get With It … or Get Burned.”  He offers such gems as….. “

Peninsulawyer, who also tweets, wrote an interesting piece on twitter and other social media… Social Media – Out of control? where he reviews the state of play and benefits for lawyers. It is an enjoyable piece but I don’t propose to rehearse the points he makes.  His blog post did, however, prompt me to ask a question on twitter… “Are lawyers foolish to block access to Twitter etc for their staff?”  Inevitably, issues of productivity came up and, of course, it is easier to control it in a small operation than a larger one.  For my part, when I ran businesses and law schools, I regarded it as very much a matter of give and take.  There was also the very real problem of hypocrisy,  as I was a regular poster on RollonFriday in the very early days of that discussion board, as were some members of my team. I suspect that British law firms will use twitter well, some do already, and others will make a complete horlicks of it and use twitter to broadcast their latest offerings and little else.

I shall end with this tweet (I have permission) … sums it up, really. Carry on Twittering!

THE IRAQ INQUIRY

Geoff Hoon says Gordon Brown starved MoD of cash before Iraq war

Geoff Hoon did a boot job on Brown at the Iraq Inquiry – and, pleasingly, the questioning does seem to be getting a bit sharper. The Times reports: “Gordon Brown tonight faced demands to give evidence to the Iraq Inquiry before the election after the former Defence Secretary said the Armed Forces were starved of cash in run up to the war.”

And… the other interesting piece of information to come out was a hitherto classified letter from the Attorney-General Lord Goldsmith to Hoon. The Times reported, in a separate piece:

“The Attorney-General sent a furious letter to the Defence Secretary a year before the invasion of Iraq warning that he saw “considerable difficulties” in giving legal approval for war, it emerged this morning.Lord Goldsmith complained to Geoff Hoon that he had put in a “difficult position” by the Defence Secretary’s public claim that Britain would be entitled to use force without a specific United Nations resolution.In a previously secret letter released by the Iraq Inquiry this morning, Lord Goldsmith said that he had given no opinion on the legality of military action.“I think you should know that I see considerable difficulties in being satisfied that military action would be justified on the basis of self-defence,” he wrote.

Of course, later, Lord Goldsmith was able to find enough relevant law upon which to base an opinion that going to war was lawful.  It will be interesting to see what the Iraq Inquiry ‘inquisitioners’  do with Goldsmith.

Sarkozy backs off from Haiti spat as US military airdrops aid

I see that the French president has backed down from a diplomatic spat after one of his ministers complained that the US was ‘occupying’ Haiti.  France, of course, was the colonial power in what became one of the world’s poorest basket case countries. It seems to my jaded eye to be rather hypocritical to complain about the US involvement when it would appear that France has done little to assist Haiti in recent years… or if they did, their assistance was  a spectacular failure. The last thing we need is the French, or anyone else, trying to vie for publicity and ‘power’. The first issue must be assistance, saving lives and building a future.  The US has the ability and resources and it is their money they are spending as well…not just money derived from donations. (The Times has a full report).  For my part it is good to see many nations and the people of these nations doing what they can, whetehr by donating or by direct practical help,  to help another country instead of waging war.

LIBEL… a continuing and burning issue…

“Freedom of expression and investigative journalism are fundamental protections to the democracy of this country.”

Jack Straw, Lord Chancellor and Secretary of State for Justice, January 2010

The Independent reports: ” The success fees which lawyers working on no-win, no-fee conditional fee agreements (CFAs) in defamation cases should be cut from 100 per cent to just 10 per cent, Justice Secretary Jack Straw announced today. The proposal, the latest stage in the Ministry of Justice’s programme aimed at ensuring that costs in publication proceedings are reasonable and proportionate, was put out for consultation today. It is thought that action could be taken through a statutory instrument by May. Mr Straw’s announcement comes hot on the heels of the publication last week of the review of costs in civil litigation in which Sir Rupert Jackson, who sits in the Court of Appeal as Lord Justice Jackson, recommended ending the regime under which success fees for lawyers suing newspapers for defamation and privacy on CFAs are paid by the losing defendant. Instead, he said, damages should be increased by 10% so that the claimants could pay their lawyers’ success fees from the amounts they recovered.

Libel tourism, superinjunctions, oppressive use of law to curtail inconvenient news coverage blights our legal system and much of it arises because lawyers have been able to charge truly astonishing fees.  Other reforms, including  proposals to get rid of juries in libel trials,  are to be welcomed so that libel becomes a fair law to give redress by vindication rather than be seen as a cash cow for lawyers or a tool for corporates and others to shut out debate and freedom of expression and reporting.  Jack Straw, if he can pull a statutory instrument out of the hat before the May election, is at least making a start.

And…since this is a SOCIAL MEDIA edition of my daily Law Review… it seemed appropriate to end with this truly remarkable news story from The Telegraph… you really could not F*****g make it up…

Chef Ramsay is going on a twitter course? Why?  This… I will just have to see… Hat Tip to @Pam_Nash



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Law Review: Measured judgement

The Independent reports: Twitter joke led to Terror Act arrest and airport life ban

When heavy snowfall threatened to scupper Paul Chambers’s travel plans, he decided to vent his frustrations on Twitter by tapping out a comment to amuse his friends. “Robin Hood airport is closed,” he wrote. “You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!!”

Unfortunately for Mr Chambers, the police didn’t see the funny side. A week after posting the message on the social networking site, he was arrested under the Terrorism Act and questioned for almost seven hours by detectives who interpreted his post as a security threat. After he was released on bail, he was suspended from work pending an internal investigation, and has, he says, been banned from the Doncaster airport for life. “I would never have thought, in a thousand years, that any of this would have happened because of a Twitter post,” said Mr Chambers, 26. “I’m the most mild-mannered guy you could imagine.”

The police appear to have gone into overkill mode on this one.  As Matthew Taylor observed on twitter – it would be interesting to be a fly on the wall when the CPS consider this case for prosecution.  Which law has been broken?  Are they going to be able to bring a case within any known law?  Will a jury think that the country is losing the plot if a case is brought? Will the trial judge throw a  pencil into the air and say that the police and CPS need to get a grip? I was going to write about this in some detail.  Fortunately, Matthew Taylor, on his MTPT blog, analyses  the law and I need not do so.  See: Somebody set us up the bomb, or Making a #TwitterArrest

It is, of course, easy to comment after the event – but even allowing for a heightened state of alert following the failed Christmas airline bombing, surely we need a bit more objectivity and measured judgement being applied? I for one, will certainly not be asking friends for help on Twitter blowing up balloons for a party in case some over anxious member of the public tips off the police that some atrocity is about to be committed and the police decide to interpret ‘balloons’ as meaning a high profile building and ‘party’ as a terrorist group.  Good grief… put this way… almost any tweet could be interpreted by the police to be pregnant with ‘terror and security issue’ meanings… we could be doomed.

I’m not going to discuss this… but I just could not resist this headline from the Times..

Abuse of pre-pack deals ‘could turn Britain into an insolvency brothel’

The knives are coming out and they are sharp. Tony Blair engaged in what came to be known as ‘sofa’ government.  It appears his successor, Gordon Brown, prefers the darkened bunker, with civil servants excluded,  and the brutish tool of political edict.The Times reports

Whitehall rebels over ‘brutish’ Gordon Brown

The credibility of the control order regime has been further questioned by a decision of Mr Justice Silber.

The Times reports: “The two suspects, known as AF and AE, had argued that the orders against them were unlawful and that they were entitled to damages for breaches of their human rights. Mr Justice Silber, sitting at the High Court in London, agreed and quashed the orders yesterday. He said that the men could claim damages from the Government for restrictions placed on their movements during the past three and a half years. However, he added that the ruling did not automatically mean the men would succeed with their claims and emphasised that the level of compensation would be low.”

Alan Johnson responded immediately and the government will appeal the decision. The Times noted that AF and AE won a landmark ruling in the House of Lords last year over the Government’s use of secret evidence to persuade the courts to impose and maintain control orders.

Pressure continues to be exerted for reform of our libel laws generally and The Times reported yesterday that Nick Clegg pledges to curb libel law’s ‘chilling effect’ on scientific inquiry. Fellow law blogger Jack of Kent has long focused his attention on libel reform and his latest post (and others on this theme) is worth a look

Assisted suicide or attempted murder?

Just three months after the Crown Prosecution Service clarified the law on assisted suicide, a”devoted” mother helped her suffering daughter die by handing her a lethal dose of morphine and then administering a lethal cocktail of drugs. The Independent.

I examined this issue in some depth with former Lord Chancellor Lord Falconer and Keir Starmer QC, the Director of Public Prosecutions,  in two podcasts late last year (Links to the podcasts above).

MPs warn of criminal justice ‘crisis’

The Law Society Gazette reports: “A committee of MPs has warned that the criminal justice system is ‘facing a crisis of sustainability’ as government spending on prisons takes resources away from other aspects of criminal justice. The Justice Committee said the government should make ‘radical moves’ to shift resources away from incarceration towards rehabilitation and projects that tackle the underlying causes of offending like social exclusion, poor education and drug addiction. The call was backed by Law Society legal aid manager Richard Miller, who said that a reduction in spending on prisons would leave more cash for the legal aid budget.”

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Binary law asks... Are blawgs an effective marketing tool?

White Rabbit, an experienced member of the Bar and author, in a post entitled Thought Crimes considers the case of the tweet which led to Paul Chambers being arrested by police.   Accepting that Paul Chambers may not be the brightest knife in the box for tweeting about blowing an airport sky high… White Rabbit concludes..”Clunking, boneheaded authoritarianism by numbers!…. and muses…”A quick blast of Maggie’s Farm seems appropriate.”

The Legal Action Group (LAG) notes… A bill of rights election “Last week saw the opening shots of what is likely to be a four-month general election campaign, assuming Gordon Brown goes for the predicted 6 May polling day. The Human Rights Act (HRA) 1998 will feature in this campaign as Conservative leader David Cameron has pledged to repeal it and replace it with a ‘British Bill of Rights’. It is unclear, though, what he means by this.”

IPKat has this wonderful story in their Monday Miscellany…“Via a Tweet from Duncan (IP ThinkTank) Bucknell comes news from TorrentFreak that the official logo for Hadopi — the new French mechanism for dealing with file-sharing copyright infringers — was itself a copyright infringement since it employed an unlicensed font. Hadopi has apologised through “gritted teeth” (dents grincées) and is busy seeking an alternative, non-infringing font.

And finally…. I was on twitter last night exchanging a bit of curmudgeon with @jangles (we were discussing the takeover of Cadbury by Kraft) and he suggested I listen to Razzle Dazzle from Chicago.  Good advice and if you need cheering up after Blue Monday yesterday… the most depressing day of the year… then this is definitely worth a listen…

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Why pay £60,000+ to newly qualified solicitors in your City or BigLaw law firm for routine drudge work when you can pay far less to a law outsourcing operation in Mumbai where they pay highly qualified graduates from India’s best universities only  £4700 per annum?

The idea of outsourcing to an Indian ‘law call centre’ is very attractive… productivity rates will be high – The staff in Indian outsourcing factories are unlikely to be faffing about on the RollonFriday discussion board (Not criticising… I enjoyed it when I posted as Brigadier Grappa in the early days of the board), reporting for work hungover, muttering darkly in the photocopier room about being exploited etc etc etc.

British law firm managing partners, under the cosh from in-house counsel from some of the biggest credit-crunch hit PLCs,  have been falling over themselves to book tickets to Mumbai, to find a magic bullet to ensure partner PEP is maintained without sacking the entire junior drone workforce.  Of course, I am painting a grotesquely simplistic picture…. but if you want a really grotesque picture of where City or BigLaw law practice may be headed have a look at this remarkable and surreal article in the Times…

Brief for India’s outsourcing lawyers: keep it cheap

There isn’t a lot of ‘Rule of Law’ to be found in modern City practice…it is more a case of the ‘law of rule’.. Compliance is the buzzword…the new paradigm…  but this article could be enough to put some readers off practising ‘Law’ …or at least that type of law.  You can hide behind the sofa if you don’t wish to read it. There isn’t a lot of money, they say, to be made in many areas of law…so if you really want to spend your legal career making money… then a City career is probably the best place to look to get the foot on the rung of the long ladder to partnership… or not… in the modern era.   I don’t know… I am merely an observer… I am merely commenting on what I read and hear.

The lawyers got away with it. Public anger is so focused at the greedy bankers that no-one is really questioning why law firms are not being looked at more closely for their part in the credit-crunch.  Law firms, after all, provided the legal infra-structure, designed the legal foundation of the ‘magic apps’, the ‘documentation’, the ‘securitisation’… but, of course, they were not progenitors of the credit-crunch..they were merely following orders to provide a watertight infrastructure.  This, again, of course, is too simplistic… or is it?  No doubt the sayers of sooths and prognosticators of the legal world have flagged this up….and if they have I would be delighted to read their thoughts on the issue.

The Iraq Inquiry turns up the heat this week…

The Independent reports… The inquiry is set for its most riveting week yet, as three key figures appear to give evidence. Today it will hear from Jonathan Powell, Mr Blair’s head of staff, who is expected to be asked about his involvement in the notorious September 2002 dossier setting out the case for war in Iraq. Former Defence Secretary, Geoff Hoon, will appear tomorrow, while Mr Straw will give evidence on Thursday.

But the best bit from that piece in The Indy is this…Jack Straw, the Justice Secretary, secretly warned Tony Blair that there were major legal obstacles to invading Iraq, it has been revealed.”

There do seem to be a lot of (possibly) unminuted handwritten or typed letters flying about in the run up to the Iraq War.

Brown had secret pot of cash to fund projects, book alleges

And so, to the mix between politics and law – and this story combines both in quite an important way

The Guardian reports…” Gordon Brown was yesterday asked to explain a secret Labour fund allegedly used to finance projects while his supporters were trying to unseat Tony Blair.As Brown lines Blair up to play a role in Labour’s general election campaign, the Tories challenged the prime minister to explain why the fund had not been declared in the register of MPs’ interests. The fund was revealed by the former Labour general secretary Peter Watt in the latest excerpt from his book published in the Mail on Sunday. Watt said Brown set up his “own personal pot of cash” while he was chancellor.”

The really important part of the Guardian article is… ” The Tories said that the fund should have been registered with the Commons authorities as a “personal benefit”. In a letter to the prime minister, the shadow treasury minister Greg Hands wrote: “I would like to know on what basis you judged it unnecessary to declare the fund. It is important that you clarify these issues urgently as I believe there may be grounds for investigation by the Parliamentary Commissioner for Standards.”

Quite…

The Guardian did note…“A Labour spokesman said: “All donations received … are declared in accordance with the relevant rules and guidelines.”

We have heard that mantra before. So the story runs… and Brown appears to be bringing Tony Blair back to help with the election… to help capture the hearts and minds of the middle classes.. High comedy, indeed.

Part II of Monday Law Review will follow later in the day…

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PS… I did comment on the Watt allegations in my Sunday edition of...Charon reports… from the front line…from Oldgitstan..

And finally… on a lighter note... if you want to learn more about a future (possibly) prime minister… DAVE… then this may be worth a look.

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Blawg Review from Gideon on Martin Luther King Day is up….

Clever and understated… with some very subtle points…  a definite worth a read… won’t take too long.

As Gideon says… “Instead, read the Review as a free flowing conversation I’m having with myself (and you). It’ll make the experience less painful.”

Also… please note… this is an unusual BR…as Gideon says… “As always, I will update this post throughout the day on Monday to reflect the many MLK related posts around the blawgosphere, so keep coming back! If Twitter’s your thing, you can get in on the act there, too.”

Read

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I did a podcast with Gideon last night (not connected to his BR) but it was fun to do – as before!

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Lawcast 163: With ‘Gideon’ – a US public defender

Today I am talking to ‘Gideon’, a US public defender and the author of the A Public defender blog. We look at the death penalty issue in the United states, the increasing use of surveillance in our respective jurisdictions, the latest on President Obama’s plan to close Guantanamo and even find time to discuss whether a tweet is copyrightable.

Listen to the podcast

Podcast version for iTunes

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I rose today at 3.30 am, as I do every day.  It was dark outside. The sun here does not dare venture out much before 7.00. There was an eerie silence…always a sign that something is about to kick off.  When I went to bed last night…. Iain Dale and Yasmin Alibai-Brown were sparring on BBC News 24.  I had to agree with Iain Dale’s assessment of that minor skirmish… it was 1-1

BUT… this morning… it was different… there was blood on  the walls….

The Ranting Penguin came through first on my dongle… I knew then…. that this was but the start of a very, very,  hard day in British politics…

Things are so bad in South Wales that even the Chief Constable cannot go down to his local Tesco to buy Coco Pops without fear of an attack by the Oldgitsban.. a  ‘proscribed’ group of elderly people who terrorise supermarkets on a Saturday and monitor the internet… when they could shop during the week….. just to annoy the middle classes who have to shop on Saturdays because of their own duties working for banks, estate agencies and…some say… law firms, the ‘meedjahuddin’ and advertising agencies.

I do not know who the Ranting Penguin is… all I know is… that when I see a feed from the blog… things are going to kick off and it is time for me to get the ‘kit’ on….

I read this story in The Telegraph… keeping an eye out for roaming gangs of Oldgitsban.…it is well known that this group of elderly insurgents rise early….get up at unusual hours… and are monitoring ‘communications’ on Twitter and in the blogs… I am grateful for their efforts… these people, without thought of reward… watch our liberties…watch our rights…

Being an ’embedded reporter’…. I do have to take instructions from the military… but… I can tell you… on this occasion… as I got out my laptop….even the local Brigadier was happy for me to report on what must be the STORY OF THE FIRST COUPLE OF HOURS OF SUNDAY MORNING BEFORE ANDREW MARR COMFORTS US ALL WITH HIS GROUND BREAKING PAP SHOW… The Andrew Marr Show – possibly the most trailed (advertised) show on the BBC?

I almost wept, as I saw the reports in the MAIL ON SUNDAY… about Tony Blair asking..

‘Find me some obviously sick children’

Some things are just so bad… that it is difficult for even a hardened blogger to report… and it is at times like this that I am glad we have the the Mail on Sunday to dig deep… as a ‘tribute’ to them… it is best that I let them take up the story…and let you…. decide on the ‘realpolitik’ of the matter…

BUT… it got worse… Gordon Brown had a secret stash of money…. the records being kept in an old exercise book.. and Brown seemed to spend a lot of time scheming to become prime minister… a position which he has held with exquisite lack of success, earning the soubriquet of being Britain’s worst prime minister…and he didn’t even start a f**king war…

The MAIL on SUNDAY… has the story

This is Charon…reporting from the front line…. I’m only sorry that there is no SNOW… I would have enjoyed doing the weather forecast and helping the people of Britain understand just how BAD…snow is… anyway… have a laugh… if you can…. as you read the latest revelations from Peter Watt, former (and very pissed off) General-Secretary of the Labour Party.

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Transparency declaration: Charon has voted Labour for nearly 30 years. This does not make him a war criminal.

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I can’t go on…..

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Dear Reader,

Soon, I move back to London;  leaving behind Chatham Maritime, Rochester and the Medway and my view over the old naval dockyards.  The gulls, cormorants, ducks and swans where I am going will be different..they will be Battersea ducks and gulls.

A friend of mine re-tweeted yesterday…Word of the day: Slacktivist“. n. one who sits on their arse, tweeting about important issues, thinking they’re making a difference.

I enjoyed that.  I would far rather read the wonderfully crafted rants of some of the political bloggers – which are amusing and probably do achieve something – than the Po faced comments and endless re-tweeting by people who seem to get outraged easily.  There was one this morning…“third day in a row the Daily Mail has failed to put #Haiti on the front page. Pathetic.”

I’m sorry Haiti is going though misery.  It is a dreadful tragedy.  The US and many other nations are doing everything they can to help. It will take time for that assistance to kick in. Celebrities are falling over themselves to publicise how much they are giving (why, when people give, do they need to tell people?) – but endlessly wringing one’s hands is not going to do any good to anyone. [ Repeating a message  until desired action takes place can be useful. We saw the positive value of Twitter with this on Trafigura. There have been many other illustrations. ]

I have no immediate plans, I’m afraid, to fly myself into Haiti by helicopter to try and rescue people and deliver food parcels and tents.  This does not make me a bad person. I do not need to have my conscience or ‘moral compass’ re-educated by sanctimonious nonsense on twitter or anywhere else.  I have got the message loud and clear and, like  all decent people, I am saddened by these events.  I have a suspicion that the self appointed twitter and other media experts on Haiti, exhorting us to pray (I don’t do god….of any kind), give (my private affairs),  or otherwise moderate our lives to show solidarity with Haitians, probably didn’t even know where the place was last week and have, possibly,  relieved themselves of the need to ‘give’ because they are doing such ‘important’ work on twitter by publicising the cause. Will no-one rid us of these turbulent bed-wetters?… Here endeth the Saturday rant.

Scott Greenfield has a very interesting post today… I quote from a section of it.. but the full post is well worth a read..he is referring to the disaster in Haiti: .“The point is that emergent desperation calls for certain abilities.  Think Abraham Maslow.  It breaks my heart that I, as a lawyer, cannot offer the help that people need in their desperation.  I cannot ease their pain.  I cannot feed the hungry children.  I cannot build them shelter.  I cannot even capture the suffering on film so that the rest of the world can see the pain.  I am but a lawyer.  There are times when my limitations are manifest.  This is such a time….”

Tweet of the week:  I don’t often get compliments… this is an excellent compliment!

Osbore Corner – The life, times and thoughts of a Chancellor in waiting

Better crack on… things to do…. supplies to organise.

Best, as ever

Charon

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Lawcast 162: Law News round up with Matthew Taylor

Today I am talking to Matthew Taylor, a solicitor, who is also author of the MTPT blog. In the last week two important legal issues have caught my eye – the motion granted to John Hemming MP about contempt of parliament by a law firm and the European Court of Human Rights decision that s44 stop and search powers are illegal. In fact, there has been a lot of law news this week and we’ll be exploring some of these issues in the podcast today..

We consider also:  Trial by judge alone, Marco Pierre White case against Withers, television in court and the Iraq Inquiry.

Listen to the podcast

Podcast version for iTunes

This is the first Law News round up style podcast which I plan to do with an invited guest on a regular basis. I’m afraid I have a cold and some snuffling noises were picked up.  Apologies – mea culpa…but the show had to go on!

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George Osborne, the Guardian reports, can’t wait to start cutting.
The Guardian reports..

George Osborne identifies cuts for first weeks of Tory government

Shadow chancellor says £178bn fiscal deficit means he cannot wait for initial post-election budget before cutting expenditure.  This prompted the chief secretary to the Treasury, Liam Byrne, to say: “What is clear is that in his rush to cut spending in 2010, George Osborne would put the recovery in grave danger. But until he says how he’ll do it, and whether he’ll match Labour’s pledge to halve the deficit in four years, his speeches must be taken with a huge pinch of salt.”

New rules to cut down frivolous injury claims

Independent: Unscrupulous firms that urge people to make frivolous legal claims after suffering an injury face being shut down under radical proposals designed to cut millions off the cost of civil justice. So-called “claims farmers”, which sell on cases to personal injury lawyers, would be banned under a plan drawn up by one of Britain’s most senior judges. The clampdown is part of a series of reforms aimed at cutting back Britain’s burgeoning “no win no fee” legal industry. Lord Justice Jackson, a judge in the Court of Appeal, said: “The focus of our litigation process should be upon compensating victims, not upon making payments to intermediaries and others. That such substantial referral fees are being paid shows that there is too much money swilling around in the personal injury compensation process.”

Hat Tip to Scott Greenfield, Simple Justice, for alerting me to this wonderful advert from a US Law firm about personal injury cases

The film is worth a look.  It isn’t  a long one.

Whatever your politics… Lord Tebbit of Chingford is one of Britain’s most outspoken conservative commentators and politicians…and he writes a damn good blog in the telegraph… worth a read.

Why won’t the two main parties do anything about the madness of taxing the poor?

This is his second piece… and it will give you a good taste..

My increasingly jaded eye, when it comes to PR material spun out of law firms and elsewhere, was caught by this piece of analysis  in AllAboutLaw, a good magazine primarily focused at students.

The recruitment manager from a law firm  reflects on ….The LLM – the employers perspective.

After giving four reasons why students take an LLM – 1. They have a genuine, long term interest in the subject matter. 2. They have no idea what they want to do next in their career, it’s a way of killing time. 3. They have poor previous academics and want to ‘prove’ themselves at a higher level. 4. They have secured employment in the distant future/have been deferred and want to continue to academically stretch themselves….

The piece goes on with this wonderful ‘case study’… “Let us take a case study. Doing an LLM in Family Law in the hope that it will increase your chances of securing a training contract with a firm like Trowers & Hamlins would have little impact on your application, Trowers & Hamlins doesn’t have a family department, nor are they likely to gain one in the foreseeable future.”

Perhaps realising that this last ‘case study’ might be too Stating the Bleeding Obvious 101 for Law Firms – the writer does go on to suggest that a relevant LLM may be of more use.  I’m afraid I lost the will to go on after reading… ““Even if the LLM is valuable to your future employer it must sit alongside a stellar application”

I had no idea what a stellar application is. I iz old git, yeah..not down on da street with da kidz.. not sav wid teh internets.  I did check Google to see if I could download one to an iPhone – but then I realised  she was talking about the application form.  BUT….ever thorough…then I discovered that there is even a book about stellar application writing… so if you don’t measure up, have a totally inappropriate LLM, have a pretty ropey cv… or are just exhausted after being patronised by dumbed down articles on law school or law careers websites, you may find this book of some value… so your LLM can ‘sit alongside a stellar application’…

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IT HAS NOT BEEN A GREAT WEEK FOR WITHERS

Not only are they now facing the prospect of being hauled before the Bar in parliament to answer a charge of being in contempt of parliament (in fact, this is unlikely) they have managed to get into RollonFriday and may have irritated Marco Pierre White… big time.  RollonFriday, as is often the case, has the story… If you do feel inclined to visit the Withers website… it may be an idea to wear sunglasses.  The front page of the website is… shall we say… a bit ‘sudden’.

RollonFriday reports…The Court of Appeal has ruled that Marco Pierre White can seek damages from Withers after his personal mail was intercepted. The celebrity chef is in the middle of a divorce from his wife, Mati. She is represented by Withers, and during the course of proceedings letters to White were produced by the firm (including a contract from P&O and a letter from his daughter). White said he’d never seen these documents before, and claimed Mati had said that Withers had said she could go through his post….”

But it is this bit.. that I enjoyed most…and I quote it in full…

A spokesman for Withers said, “We have always maintained that any allegations made by Marco Pierre White against Marcus Dearle and Withers LLP are completely unfounded. But as Sedley LJ commented, ‘…  the desire for vengeance on the lawyers acting for an estranged spouse is as  common as it is irrational.'”

So, that’s calling a volatile and mouthy chef “irrational“. Smart – watch this space”

It is Friday… not much law news about… and I do enjoy a bit of left field on a Friday morninng.  Today, I shall have a traditional bacon and eggs breakfast.  in fact.. I shall cook it now.  Enjoy the weekend.

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Rex Charon MP: I can go on like this

As ever, I am grateful to my red flag flying twin  non moustachio’d  brother Charon QC for hosting my occasional pieces. The truth be told, I have barely enough time to accommodate my long lunches these days without fiddling about on the internet.  The day started well enough with Guido Fawkes rallying the troops with his Scoop du Jour: Labour Faked Cameron “Airbrushing” only for @BeauBodOr (who has an excellent website btw) to come along and spoil the fun with this tweet: “http://bit.ly/7teozH Guido EXCLUSIVE accuses Labour of faking Cameron airbrushing. Nope, they used myDavidCameron template and credit them.

I was going to attend the Hemming motion about Withers  being in contempt of parliament but also to have a laugh at the expense of the Lib-Dems,  but others were able to do this rather well and I note that CQC has already written this up below… the assiduous, conscientious,  bastard.

Then came the news that Labour are trotting out their ‘pledge’ ploy. They have five of them, apparently.  Boris did quite well out his pledge card when he ran for Mayor but the Pillsbury doughboy lookalike, David, described them as vacuous. Pundits are speculating.

Guido Fawkes then ran with an exclusive story about the BBC inviting Damien McBride to give a speech to the BBC.  In the meantime, almost unnoticed, the BBC were amusing themselves by getting Anjem Choudary, no longer a member of the proscribed Islam4UK (one assumes) on to Daily Politics to talk to Andrew Neil. The Financial Times waded in with… The return of Damian McBride? and gave a platform for Eric Pickles to do the outraged slings and arrows bit and trot out the old impartiality trick…which I am sure he just does to wind up the liberals and Guardian readers. I have no idea, of course…  “Impartiality must be at the heart of what the BBC does. This raises serious concerns.  Did Mr McBride get paid, were his travel and other expenses paid, did he receive any gifts for attending this event? The BBC must come clean on all these issues.”

The tragedy in Haiti needs no comment from me and certainly didn’t need this pile of toss from the Daily Mail this morning…

“For tourists on cruise ships plying the Caribbean, Haiti appears a beguiling, mysterious place…. blah blah blah… But it is no paradise for the country’s nine million people. Indeed, the devastating earthquake now bringing death and heartbreak is the latest in a long line of tragedies to befall a place dubbed the Island of the Damned.”

The blood lust was up and Malone went into hyperdrive… with much talk about voodoo dolls, TonTon Macoute and Haitians eating each other….. “Successive dictators have raped, murdered and even reputedly eaten their enemies…….Described by one commentator as an ‘international crime scene’ rather than a country….. [more more lurid scribbling of cannibals, children being sold into slavery, TonTon Macoute wandering about shooting anyone they fancied [ etc etc etc.]…

The picture is from the Mail.There can’t have been any pictures of Haitians eating each other on Corbis or Getty Images. I’m assuming Malone wrote this from the comfort of his own UK desk?  But I just love the way this compassionate soul, Malone, ended his piece… “For the people of Haiti, though, hope has always been a rare commodity”

I’m just surprised that Malone didn’t manage to shoehorn the Chris Izaak  lyrics in…

I know what to do when your sad and lonely,
I know what to do when you love her only.
I know what to do when no one needs you,
I know what to do you do voodoo. Voodoo.
You do voodoo.

I’ll end with a bit of Alastair Campbell…from his blog:

“Now that things have calmed a bit after the frenzy of Tuesday, normal political service resumed here, with a reminder that there are only two parties in this country capable of forming a government, so that the big choice on the agenda is whether we want Labour or the Tories in power, Gordon Brown or David Cameron in charge…….

and Campbell continues... “Meanwhile I may be back later developing on the theme of last night’s tweet about Paul Dacre allegedly being in love with me and possessed of homoerotic fantasies, as many right wing extremists appear to be.”


As Abraham Lincoln said… “If you once forfeit the confidence of your fellow citizens, you can never regain their respect and esteem. It is true that you may fool all of the people some of the time; you can even fool some of the people all of the time; but you can’t fool all of the people all of the time.”

Sometimes I think… that Lincoln wasn’t quite right on this…


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I have just watched the motion brought by John Hemming MP (Lib-Dem) alleging that an email he received from Withers was intimidatory and a contempt of Parliament.

The full email is here (Scroll down) – but the relevant part of the email, which damned Withers, was this:

In order to settle this matter we, therefore, require an apology in respect of both the serious allegations plus payment of our client’s costs, a substantial payment to a charity of his choice and an undertaking not to repeat the allegations or any similar allegations, particularly in Parliament.

Interestingly, the MPs distanced themselves from the specific facts or Mr Hemmings’ conduct outside parliament and inevitably their focus was on the principle enshrined in our law and parliamentary procedure for hundreds of years that MPs may say what they like in parliament and newspapers that report on parliamentary proceedings may do so without fear of contempt.

This is an important issue and as MPs noted, there have been two attempts in recent months (Trafigura / Carter-Ruck) being the first by lawyers to gag MPs, prompting David Heath to observe cynically that lawyers do not appear to know about parliamentary privilege.  He also made reference to a notice sent out this morning by The Law Society.

The debate was brief, reinforced the right to the freedom of MPs in parliament.  Geoffrey Clifton-Brown was fairly scathing about the Lib-Dems and what they say on their leaflets outside parliament but made very clear that the central issue  of parliamentary privilege was vital, noting that with power came responsibility not to, for example, over use it or comment on matters sub judice.

The matter will now go before the Standards and Privileges Committee.  Perhaps lawyers need a brush up on Constitutional Law 101?

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In fairness to Withers and I do agree on this latter pointMatthew Taylor writes: ” The debate strongly confirmed my view that John Hemming is in the wrong here, and that Withers’ hand has been forced. That said, Hemming’s comments about and allegations against their client are now in the public domain, and freely reportable. There is a problem if John Hemming could give an undertaking not to repeat allegations (to avoid a lawsuit), but remain free to repeat them in Parliament without sanction. It does not defeat the purpose of Parliamentary Privilege, but does debase it.”

Hemming has certainly used parliamentary privilege to enable the Withers client to be named in parliament and, thereby, for newspapers to freely report on it.

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The Legal Services Board hit the ground running with coverage in the Times. Frances Gibb reports...“Stacked on David Edmonds’ desk is a pyramid of 18 varieties of baked beans. “It’s a private joke,” he insists — declining to be photographed with them. “It shows the huge variety you can have, and quality at the same time.” The joke is a reference to the Big Bang in legal services — opening up the market to different ways of meeting consumers’ legal needs. Edmonds, as chairman of the Legal Services Board, is the arch-regulator under the reforms of the Legal Services Act 2007 and is given the task of policing the landscape that is taking shape.

It is too early to tell whether the Legal Services Board will be of any value whatsoever. I suspect it will turn out to be yet another bloated, expensive, quango – but, as always, happy to be shown the error of my thinking by results. Mr Edmonds ‘has extensive leadership experience of senior management teams in commercial and public sector organisations, in both Chair and Chief Executive roles…etc etc etc.”

Frances Gibb  asks: “So what is next in the pipeline? First, he is launching a quality assurance scheme for advocates, to be in force by mid 2011. It will start with family and crime and move to other areas, unless the profession can show a good reason why not. “We are setting up a joint advocacy group with representatives from the regulatory bodies for the Bar, solicitors and the Institute of Legal Executives and that will work out the detail and the scheme. We will not prescribe how the assessment will be done or its cost . . . our job is to take the lead and ensure that something happens.”

This sounds like a reasonable plan.  I’m all for regulation which improves quality – an objective eye on the smug self satisfaction of any group of professionals when they are charging (in many cases, substantial amounts)  is always welcome.  It is quite likely, I am told by experienced criminal barristers, that the LSB will find some pretty appalling advocacy out there and, I am also advised,  that there is some pretty ropey civil advocacy going on in the lower courts as well. So plenty to keep the LSB busy.

Gibb asks: “What will the new landscape look like? “I don’t think it will be a Big Bang but before next year we will see people using in a different way.” He predicts more telephone legal advice, like NHS Direct, for the straightforward simple advice and greater use of technology and trained non-lawyers for lower-level work. “It is perfectly possible we will see firms floating on the stock market, but more likely in the first place we will see private investors investing capital in law firms.” Would he? “I couldn’t, as a regulator, but as an individual, some of the returns law firms make are very good . . . so why would I not?”

I’m all for change – so long as the public realise that the old maxim “You get what you pay for” applies. I do not need to be Nostradamus to predict that we could be reading news stories soon about members of the public bleating that they had dodgy advice from some telephone call centre ‘operative’  contacted through one of those adverts on daytime television! We shall see. It could be more a case of cans of worms than beans.

The first signs that the legal landscape is changing came with the report that Sky television are keen to get stuck in and televise court proceedings.  What they mean, of course, is get stuck in to reporting the ‘juicy cases’.  I really can’t see Sky television solemnly televising  proceedings relating to international commercial contracts or complex matters in Chancery relating to taxation and trusts etc. Predictably John Ryley, head of Sky News, said that there was one branch of the democratic system that broadcasting had still not properly penetrated – the courts. “A coherent, and fair, judicial system is the keystone of a democratic system,” he said in a speech to the Cambridge Union Society.  Good grief… what a revelation.  I rather liked Mr Ryley’s ‘euphemism’ ‘penetrated’…

Are we to have Sky newshounds hyperventilating from the door of the court, reporting solemnly on a ‘miscarriage of justice’?  Are we to have cricket style commentators – perhaps retired barristers and judges, commenting on cases as they proceed?  Perhaps we could have a Hawkeye style bit of technology to analyse an advocate’s ‘telling’ cross-examination with re-plays to see if the point is a ‘killer blow’?

The Times notes…” Sky News planned to campaign hard after the general election to lift the ban on cameras in courts, contained in the Criminal Justice Act 1925. “We will explore every opportunity to mount a legal challenge against the ban on cameras, launch a public petition as we did for the Leaders’ [television] debates. And remind our viewers, listeners and website users about the campaign every time we report from outside a court with no pictures of what has taken place inside.”

Sky?  Ah… commercial television provider… adverts?  “I’m sorry…after the break, we’ll give you the verdict”.  It could be highly entertaining car crash tv and give the media yet more opportunities to get things wrong when reporting about legal matters.  I’m in favour….not of that, but of more transparency and the recording of important cases in a mature, objective manner in the style of parliamentary proceedings. That would be valuable and interesting. .

Dutch PM clings on as inquiry finds invasion had no mandate

The Times reported yesterday...”  The Dutch Prime Minister insisted yesterday that he acted honourably in supporting the Iraq war despite the verdict of an independent inquiry that the invasion had no mandate under international law. In a devastating rejection of the position of the Dutch Government, the inquiry, led by the former head of the Netherlands Supreme Court, decided that the UN resolutions did not provide a legal basis for the use of force. Like the US and British governments, Jan Peter Balkenende relied on UN Resolution 1441 of November 2002 as the legal basis for supporting the Iraq war. This resolution threatened serious consequences if Saddam Hussein did not fully comply with his obligations to disarm. However, the Davids commission in the Netherlands concluded in its 551-page report: “Despite the existence of certain ambiguities, the wording of Resolution 1441 cannot reasonably be interpreted as authorising individual member states to use military force to compel Iraq to comply with the Security Council’s resolutions without authorisation from the Security Council.”

The Dutch prime minister is ignoring the report, as I suspect our own prime minister would, had such a report been commissioned from an experienced judge. We got a foretaste of what Tony Blair is likely to say when Alastair Campbell gave evidence to the Iraq Inquiry a couple of days ago.  It may well be that Britain went into an illegal war… but what value international law when the biggest players in the Iraq war, America, Britain and other coalition countries are found to have invaded Iraq unlawfully?  For the ravening horde, expecting to see Tony Blair and George Dubya Bush wearing orange pyjamas and handcuffs at The Hague… I wouldn’t hold your breath. International law, particularly war law, tends to go in favour of the victors rather than the defeated…

Interestingly.. “Dutch ministers were further criticised by the commission, which sat for ten months, for using intelligence from Britain and the US that showed Iraq had weapons of mass destruction, rather than the “more nuanced” assessment of its own secret services.”

We do know now, Mr Blair told us so himself, that even if there hadn’t been weapons of massive destruction, the decision would have been the same.  His decision may well have been – but would he have had the support of members of his own party, opposition parties or even the people of Britain who were happy to support the decision to go to war? I suspect not. Would other nations have joined in? Mr Blair’s evidence could be most interesting to watch – assuming we are allowed to see most of it…and let us not forget about those letters to George Bush… they could be pivotal.  Nick Clegg is stirring things up by requiring Gordon Brown to give evidence  to the Iraq Inquiry before the election.  Gordon Brown is right to say that it is an independent inquiry.  It is up to the Iraq Inquiry to determine when people give evidence. Making political capital about this so the Lib-Dems can showcase their opposition to the war may well backfire on them.  Brown has stated that if he  is required to give evidence before the election by the Inquiry, he will do so. Perhaps Mr Clegg would like to exert undue, inappropriate, pressure on the Iraq Inquiry to suit his ends ?  That would be just an irony too far.

European court rules stop and search illegal

I blogged about this the other day – the comments are interesting…and later today, I am doing a short podcast on the issue with Matthew Taylor of the MTPT blog – a practising lawyer.

I do like twitter… not just social. Today, a fellow blogger, reminded me…

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Law Review: No angry men

While it is routine for civil matters to be tried without a jury and for less serious offences to be decided by lay magistrates or a stipendiary magistrate, now styled district judge, the first case for 400 years to be tried by a judge alone  began on Tuesday.  The Independent covered the story in some detail so I will not rehearse the brief facts here, but confine myself to a brief comment and invite discussion: No angry men: first trial without jury begins.

The Criminal Justice Act 2003 provides  that a trial without jury may be held  where there are fears jury tampering would take place, and if measures to protect jurors are inadequate. Last year the Court of Appeal ruled that the £1.75m armed robbery alleged to have been carried out by John Twomey, Peter Blake, Barry Hibberd and Glen Cameron at a warehouse at Heathrow in February 2004  be heard by a judge alone because of the danger of jury tampering. The last trial had to be abandoned over those fears.

The Times noted: “Defence counsel had unsuccessfully tried to appeal to the Supreme Court to challenge the jury-less trial. But, they were told, the justices of Britain’s highest court had no jurisdiction to hear the appeal.”

Trial by jury is enshrined in our constitution and criminal practitioners I have been able to speak to thus far are staunch advocates of the system. I am not a practitioner but raise the thought for discussion that while it places a burden on the judge to both ensure a fair trial compliant with the laws of evidence and take on the responsibility otherwise taken on by twelve men and women,  is it necessarily the case that a jury would do a better job of determining guilt than a lawyer with considerable experience of trials, experienced at analysing factual information and unlikely to be swayed by factors which may prejudice a juror one way or the other?

I did not think it was a particularly good idea, some years back, when the rules were changed to permit practising lawyers and judges to sit on juries, partly through concern that they may dominate discussion in the jury room but partly because of their experience and knowledge of the system.

I can see why there is a need to have an exceptional provision to hold trials in cases of ‘jury nobbling’ – and, inevitably, because I am not a criminal law practitioner my response to  trials without a jury is based on gut instinct and the emotional response that trials should be tried by 12 ‘ordinary men and women’.  Is this emotional response logical? Would it necessarily be a bad thing to remove the need for juries in more serious cases?   I invite discussion and would be particularly interested in hearing the views of lawyers and others who are specialists in criminal law.

To focus discussion on this – should readers wish to comment- I post this as a ‘single issue’ Law review and will post comment on other legal stories of the day separately later today.

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With…apologies to The Simpsons… although I suspect they could have asked better questions…?

If we expected to see Alastair Campbell crumble, distance himself from Blair , or even see the panel leap into action and ask questions with anything approaching the precision of an experienced barrister, we were disappointed.  I enjoyed watching Alastair Campbell publicise his ‘The Blair Years’ diary (which I have read)  (Guido Fawkes makes the same point) and it is clear that he has paved the way for the ‘main course’ – Tony Blair, as Sir Menzies Campbell (no relation) put it.   Ming (Who is a QC)  did say to the BBC reporter that it was unfortunate that no QCs were on the panel to actually ask focused questions and point out inconsistencies – but there were a few moments of high comedy.

At one point in the morning session, Alastair Campbell’s mobile went off to indicate receipt of a text.  One of the panel members asked if it was Mr Blair.  The rest of the comedy was provided by Campbell saying that he did not manipulate news, terrorise newsrooms and justify not correcting press reports on the dossier and WMD by saying that if he had to do that, he would be doing it 24/7.

Campbell did find time to tweet at lunch… perhaps going back into role?...“Having a sandwich mid inquiry. Watching lunchtime news. God these hacks do talk some drivel.”

Lord knows what we’ll get as a Chilcott Report.  Lawyer John Halton did tweet…

Full marks go to Paul Waugh, deputy political editor of The Standard for his very good and sometimes very amusing tweets throughout.  His write up focuses on the We will be there’ letters.

And.. a follow up post from Paul Waugh.. Arise Sir Dyno-Rod

UPDATE: Hat Tip to @wibblenut

for alerting me on twitter to this….

Iraq invasion violated international law, Dutch inquiry finds

Investigation into the Netherlands’ support for 2003 war finds military action was not justified under UN resolutions (Guardian)

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Police powers to use terror laws to stop and search people without grounds for suspicion are illegal, the European Court of Human Rights has ruled.

The Strasbourg court has been hearing a case involving two people stopped near an arms fair in London in 2003. It said Kevin Gillan and Pennie Quinton’s right to respect for a private and family life had been violated. It awarded them 33,850 euros (£30,400) to cover legal costs.

Section 44 of the Terrorism Act 2000 allows the home secretary to authorise police to make random searches in certain circumstances. But the European Court of Human Rights said the people’s rights under Article 8 of the European Convention on Human Rights had been violated. The court said the stop and search powers were “not sufficiently circumscribed” and there were not “adequate legal safeguards against abuse”.  BBC

Judgment: CASE OF GILLAN AND QUINTON v. THE UNITED KINGDOM (Application no. 4158/05)

Also: This

…2.  Holds that there has been a violation of Article 8 of the Convention;

UPDATE MTPT blog post:

The legality of stop and search

This, hopefully, will curb Police enthusiasm for stopping photographers. The government will need to re-think on this one.  I may do a more detailed analysis if I have time…

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Watching the Iraq Inquiry..Campbell is doing rather well.  The panel don’t seem to be probing him that hard.

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Campbell faces the moment of truth

The Independent reports: “Alastair Campbell faces potentially explosive questioning today over his role in overstating the reliability of intelligence on Saddam Hussein’s weaponry, as he becomes the first major political figure to appear before the Iraq inquiry. Tony Blair’s former Downing Street director of communications is expected to be quizzed over a key claim that it was “beyond doubt” that Saddam had weapons of mass destruction (WMD), made in a dossier published in September 2002 setting out the Government’s case for war. The assertion appeared in a foreword to the document, which appeared under the name of Mr Blair. However, Mr Campbell has already admitted that he was responsible for drafting it.”

The Independent notes that Sir John Chilcott, the chairman of the Iraq inquiry, has shown a close interest in the claim.  Good grief… even a first year law student attending a tutorial with a hangover could have picked up on the fact that Campbell’s testimony is central to this inquiry… an interesting day ahead, I think?

Update 10.05 am:  Tweet of the morning…so far!

Confirmed, election to be on May 6

Not, I hasten to add, confirmed by the prime minister… but inadvertently by one of his hapless team with previous.  Tory Politico takes up the story…” The argument about when the general election will be held appears tonight to be over following a blunder by Chris Bryant. Speaking to diplomats at Canning House, a diplomatic think-tank, the Europe Minister seemed to confirm the widely held belief that the poll will be held on May 6 – the same day as the local council elections. Referring to recent tensions between Britain and countries in South America, Mr Bryant said: “I hope that by the time of the general election on May 6, relations will have improved. His loose lips will anger the Prime Minister and senior party strategists, as it’s common knowledge that ministers have been told not to talk in detail about when the election will be called, in order to keep the Conservatives in the dark and so not to help them plan for the big day.”

Oops.  Perhaps there will be a statement from The Bunker that this is ‘silliness’ and the prime minister has discussed the election timing with absolutely no-one at all.. that he is not thinking about the election at this time… as he is getting on with the job?

Marco Pierre White challenge could change divorce battles for ever… (The Times thunders….)

John Bolch of Family Lore comments… or rather…. puts the boot in..and why not?:The Times today carries two articles (here and here) on the Marco Pierre White case. I’m not sure why they are running these articles some two and a half months after the event, or why there are two articles not just one. I am also not entirely sure of the point of the articles, as they seem to add nothing to what we already knew. However, I shall not complain, as both articles include contributions from my excellent fellow family law blogger, the ubiquitous Marilyn Stowe.

Islamist ‘march’ group to be banned

The Independent reports: “The Islamist group which provoked outrage with its plan to march through Wootton Bassett will be banned, Home Secretary Alan Johnson announced today. The order will come into effect on Thursday and make it a criminal offence to be a member, punishable by up to 10 years in prison.  Mr Johnson said the group had tried to escape proscription simply by changing its name. He said the order would apply to the group’s other names, including Al Muhajiroun. He said: “I have today laid an order which will proscribe Al Muhajiroun, Islam4UK, and a number of the other names the organisation goes by. “It is already proscribed under two other names – Al Ghurabaa and The Saved Sect.”Proscription is a tough but necessary power to tackle terrorism and is not a course we take lightly.”

Few people will shed any tears over this at first glance – but proscription does, of course, affect freedom of speech rights and these, this policy reveals, ‘have to be balanced against the wider good’.

The right of freedom of speech, they say now, carries with it the responsibility to speak about things in a responsible way.  That is the problem with proscription.  That is the problem with having legislation banning comment on religion and other matters… the values and mores are the values and convenience of the government of the day – which is fair enough, after all, they were elected to govern – but it does, whether we like it or not impact on the purity of the meaning of the concept ‘freedom of speech’. The definition of ‘responsible’ becomes the prerogative of the state – assuming  they are able to define such a concept to the satisfaction of our increasingly skeptical courts.  There will be some who say that it is better to counter extremism with rational and civilised debate and protest. It will, however, be far easier for the state to bang people up under this legislation – membership itself is the criminal offence – than proving offences under other terror or criminal legislation!  Another step forward?  I’m not so sure it is.

And finally… this from Charles Pugsley Fincher JD at LawComix

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With sincere and genuine apologies to Jiminy The Cricket... but I started on the Rioja a little early and had some new coloured pens to try out. Guido Fawkes has a picture comparing Cameron and Data from Star Trek.  It is quite difficult to tell them apart, but I felt that what the leader of the Conservative Party really needed was an image which would appeal to young and senile alike…. . now that no-one is allowed to publish pictures showing him as belonging to a ‘certain club’.

The world does not need any more political bloggers – there are plenty of excellent ones about of all shades (a few here)  – so I shall confine myself to weaving politics and law together in a way that, perhaps, reflects my wine consumption as the day progresses.

And here is a story that really astonished me… from The Independent:

A senior Scotland Yard officer assaulted and falsely arrested a man in a row over payment for a personal website, a court heard today. Ali Dizaei, 47, abused his position as a Metropolitan Police commander to further his own interests, a jury was told. He then wove a web of lies in the aftermath of the row outside a west London restaurant, Southwark Crown Court heard. Prosecutor Stephen Wright QC said Dizaei “bullied” and “threatened” Iraqi web designer Waad Al-Baghdadi He said: “These are allegations of the wholesale abuse of power by a senior police officer for entirely personal and oblique motives.”

The case continues…

Hoon and Straw to give Iraq evidence

Jack Straw and Geoff Hoon are to be the first members of Tony Blair’s Cabinet to give evidence to the Iraq Inquiry, it was announced today. Geoff Hoon is lined up for two three hour sessions.  I would imagine, in the light of recent events, that he is likely to be less reticent and less prone to dissimulation.

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Old Holborn is on the money again with this… Cromwell your MP:

“My attention has been brought to a mischevious little website set up to annoy the 646. It takes the hassle out of abusing MPs by automatically formatting and sending the following speech by Cromwell to any MP you fancy….”

Release of secret child punishment manual ordered

The Guardian reports: The information commissioner has said that a secret prison service punishment manual used in ­privately run child jails should be made public after a three-year freedom of information battle. The 114-page Physical Control in Care training manual details restraint ­techniques authorised for use on children in secure training centres.They include detailed descriptions of “distraction” techniques, which deliberately inflict pain and were found by the court of appeal to have been routinely unlawfully used in secure training centres……

The Guardian noted.. with a wry twist at the end...”MPs and peers said their were alarmed when they saw the headings of some of the redacted sections of the manual covered issues including “hair grab”, “strangle on the ground”, “strangle against the wall”, “strangle on the ground”, “kicks standing” and “kicks on the floor”………The MPs and peers also concluded in their report that it was impossible to tell whether physical restraint techniques complied with human rights when they remained secret.”

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