Archive for April 2nd, 2010

It did not take long….

Predictably, it did not take long before a copper (or in this case an ex-copper who quit or had to quit?), popped up to tell us all that it is time to have Judge only trials. No doubt, those who wish to be Home Secretary or Secretary of State for Justice / Lord Chancellor on May 7th will be salivating at the prospect… CUT (costs) and BURN (Villains).

Andy Hayman was Assistant Commissioner for Special Operations at the Metropolitan Police. He has managed to persuade The Times to give him some air time – perhaps it was a quiet news day? – to tell us….

Twelve good men no longer guarantee truth

As crime gets more sophisticated, sometimes the jury system will not be able to cope.

Hayman makes some ‘apparently’ perfectly reasonable – if rather well known points… about the length and complexity of cases citing a rather bizarre illustration…

In one case, an expert investigator told me that if they had printed off the relevant data from the confiscated hard drives you could have physically filled the 13 floors of New Scotland Yard.

So? Some cases may well be complex – is that a reason to chop the jury? He also tells us that unless we have served on a jury  we cannot possibly know how difficult it is and that he has spoken to a lot of jurors...”most describe mixed feelings when the summoning letter arrives in the post. They feel proud to have a chance to fulfil their public duty but also dread being selected for a case that may mean a year swallowed up, poring over complex, and in some cases, distressing evidence.”

I can only assume that Mr Hayman has served on a jury in such a complex trial and he appears to be unaware of the rule that Jurors are not supposed to discuss what happens in the jury room with anyone… or has that gone by the board since those dark distant days when Professor Smith and Professor Griew wrote about Criminal Law in their respective textbooks? I cannot imagine that he was talking to jurors before the trial… well… perhaps such is imaginable but, one assumes, did not happen.

I repeat … I am not a criminal lawyer – but the fair number of criminal lawyers I have spoken to are very much in favour of the jury.  Certainly, there is the well known aphorism that if you are innocent go for trial by judge alone and if guilty…try your luck in front of the jury.. but that is an aphorism and not a factual observation of scientific study supported by clear evidence.

I’m with the criminal law experts on this.  We have to retain trial by jury, we have to watch mission creep and we certainly do not need to hear from policemen who should have no part in the criminal justice system following investigation and arrest.

We are not a Stasi East German style state yet…despite the best endeavours, it would seem, of some on both the left and right…. and we certainly do not want to become one.


Read Full Post »

I woke early… and my first thought was… I wish that bloody cock would stop crowing

So here we are…the big day…a religious holiday for some..and a ‘Rationalist’ holiday for me… a day when the authorities in Saudi Arabia, just to prove that not much has changed in the cradle of religions in 2000 years, are going to chop the head off a Lebanese TV star who used to predict the future…for ‘sorcery’.  Hopefully – but it is, arguably, unlikely.. the Saudis will see sense and not carry out the execution.

I went off for black coffee and Marlboros at 7.30 in the hope of finding a cafe open..and LO!… it was so… it was open. I settled down to read The Sun and The Times and discovered, from The Sun that…

Cambridge University are to strip holocaust denier and pantomime fascist Nick Griffin of his 2.2 law degree. While we can all understand why the University would not wish to be associated with Griffin…it is rather ironic that they too are seeking to re-write history.  I would have thought Cambridge University was well known enough throughout the world as a serious university and  not as a fascist Madrasa…but there we are.  So much for John Wilkes and Liberty.  I did check Wikipedia to see if Cambridge had educated him. It appears not.. this may well be why he was able to develop notions and principles of free speech!

[Update: It appears (See comments)  that this story is an April Fool reported as ‘fact’ today… the day after April Fool’s Day, by The Sun…. I was a bit hungover when I read The Sun this morning.  Difficult to distinguish fact from fiction these days.  Thought it was bizarre that Cambridge would do this… mea culpa.  I leave the story in to show the nature of reporting.  I’m sure Cambridge will understand and cope!]

I then had a phonecall from someone wanting to advertise on the new Insite Law newsletter – pleasingly.  I gave him some details and when he asked if we could go forward, it being Good Friday… I said “Yes… let’s nail this down..let’s do it.”  I have been in this mood for some time…

The Israelis continue to bomb Gaza… but, they say, the Easter celebrations will not be affected. Beau Bo D’or reminded us that this has been going on for some time with this wonderful picture which he did in 2008…

I noticed (as he did)  that Hat Trick used one of his spoof Tory posters without permission for Have I Got News For You last night. With typical humour Beau Bo D’or noted on Twitter that HatTrick productions are situated right next to ‘The Pirate Castle’ (Google Pic) in London… wonderfully ironic. (I confess to ‘nicking this pic’ – but I usually ask and have been given permission before on each occasion… I happen to know that Beau Bo D’Dor may be watching “Withnail and I” and would not wish to interrupt him.)

Yesterday was April Fool’s day… it was difficult, this year, to distinguish fool from true and this may well prove to be the case until the election.  After the furore about Tom Watson MP and others blocking government libel reform plans the other day it was ironic that the Court of Appeal handed down some serious common sense and justice the next day  to get a grip on the runaway horse of libel law.

British Chiropractic Association v Dr Singh [2010] EWCA Civ 350

The Guardian reported: “The science writer Simon Singh has won his court of appeal battle for the right to rely on the defence of fair comment in a libel action.

Singh was accused of libel by the British Chiropractic Association (BCA) over an opinion piece he wrote in the Guardian in April 2008.

He suggested there was a lack of evidence for the claims some chiropractors make on treating certain childhood conditions including colic and asthma.

The BCA alleged that Singh had in effect accused its leaders of knowingly supporting bogus treatments.

In May last year, high court judge Mr Justice Eady, in a preliminary ruling in the dispute, held that Singh’s comments were factual assertions rather than expressions of opinion – which meant he could not use the defence of fair comment.

Today, the lord chief justice, Lord Judge, master of the rolls Lord Neuberger and Lord Justice Sedley allowed Singh’s appeal, ruling that the high court judge had “erred in his approach”.

The judgment may be read in full here.

Paragraph 34 is most instructive (para 1 below) – one which, hopefully, will send a ‘chill into the minds of those who reach for ‘libel Top Guns’.  It is, as one would expect from this particular line up of experienced and thoughtful judges (it was not always so in our long legal history that chief justices and senior judges delivered thoughtful and clever judgments) a carefully reasoned and clever judgment; one which will go a long way to discourage libel actions and bolster freedom of ‘honest opinion’. Perhaps Parliament can be relied on to complete the job and clean up a pretty shoddy part of our jurisprudence and bring fairness back into the system and, more important – protect those who are deserving of protection, bolster free speech and encourage responsible and fair reporting.

I have pleasure in quoting Paragraphs 34-37 of the Judgment… 1-4 below… the paragraphing has been lost from the original

  1. We would respectfully adopt what Judge Easterbrook, now Chief Judge of the US Seventh Circuit Court of Appeals, said in a libel action over a scientific controversy, Underwager v Salter 22 Fed. 3d 730 (1994):
  2. “[Plaintiffs] cannot, by simply filing suit and crying ‘character assassination!’, silence those who hold divergent views, no matter how adverse those views may be to plaintiffs’ interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us.”

  3. In an area of law concerned with sometimes conflicting issues of great sensitivity involving both the protection of good reputation and the maintenance of the principles of free expression, it is somewhat alarming to read in the standard textbook on the Law of Libel and Slander (Gatley, 11th edition) in relation to the defence of fair comment, which is said to be a “bulwark of free speech”, that “…the law here is dogged by misleading terminology… ‘Comment’ or ‘honest comment’ or ‘honest opinion’ would be a better name, but the traditional terminology is so well established in England that it is adhered to here”.
  4. We question why this should be so. The law of defamation surely requires that language should not be used which obscures the true import of a defence to an action for damages. Recent legislation in a number of common law jurisdictions – New Zealand, Australia, and the Republic of Ireland – now describes the defence of fair comment as “honest opinion”. It is not open to us to alter or add to or indeed for that matter reduce the essential elements of this defence, but to describe the defence for what it is would lend greater emphasis to its importance as an essential ingredient of the right to free expression. Fair comment may have come to “decay with … imprecision”. ‘Honest opinion’ better reflects the realities.
  5. This appeal must be allowed.

Noting the 1 April date of this report from The Firm… I am not sure whether this is an April Fool or not…anything is possible in the legal world, even in Scotland:

Sarah Palin admitted to Faculty of Advocates

The Faculty of Advocates has announced that former US Vice Presidential hopeful Sarah Palin has accepted an invitation to be admitted as a non-practising member of the Faculty of Advocates.

The Faculty of Advocates has announced that former US Vice Presidential hopeful Sarah Palin has accepted an invitation to be admitted as a non-practising member of the Faculty of Advocates. The invitation was made based on the former Governor’s record as a lawmaker and scrutineer of innovative legislation in Alaska in the area of complex land acquisition and expolitation contracts. Welcoming the admission, Richard Keen QC, Dean of the Faculty of Advocates, said he was “sure” that all members would join with him in welcoming “such a distinguished addition to Faculty membership as Ms Palin.”

I particularly enjoyed this last sentence…

“Palin will become a non-practising member of Faculty until she has passed the bar examinations and memorised the 26 character alphabet.”

I shall return soon..and on Sunday..with my annual  ‘Urbi et Orbi’

In the meantime, enjoy your Easter and if you are one of those who like to sit in a car on the motorway in a howling gale… it is not a cross I would like to bear… but may your god be with you.

And finally… the Guardian’s April fool poster…

Read Full Post »