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Archive for January, 2011

I have dreams… we all do…and some as surreal as this rather fine print which I found on the net: ‘The Barrister’s Dream’ by Henry Holiday.

With little enthusiasm for television or much else tonight after a frustrating day dealing with the admin of life and people not doing what they promised to do, I poured a glass of a decent claret and wandered about on the web…. which is always a pleasure….

I have tired of the armchair Egyptologists on Twitter……. Muttley Dastardly LLP seem to have the right idea: Muttley Dastardly LLP (Episode 14): Operation Pharaoh – Positioning for the new Egypt – but I did enjoy Canadian lawyer Antonin Probetic’s analysis: A Few “Burning Questions” About The Egyptian Revolt

Before you go off to have a look at some of my ‘finds’ in the great electronic archeological matrix, I thought I would let you know that I was thinking about the four stages of life according to Hinduism late last night.  The Fourth  Stage – the ascetic stage – requires an older person to live a life apart, reclusive and ascetic.  This appeals to me – but I would need wifi…and a purveyor of wine, cigarettes and decent food within a reasonable distance of a few miles or so. I didn’t fancy the holy bit either,  being an atheist.  The hut would not worry me.    I lived under canvas for some time in my ‘yoof’ in Africa.  I don’t suppose  I would be allowed to shoot my food or use explosives to arrange fish supplies though.  I may have to continue in Battersea Square a while yet…. but, reclusively, save for a morning visit to Mazar for breakfast, as I do.

The internet can be a dangerous place…especially when it comes to recording the detail and minutiae of our daily lives. When it comes to a legal requirement to store information for years, modern technology can be a very dangerous thing…

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News International finds ‘lost’ emails that could provide evidence in phone-hacking case

A “lost” hoard of emails sent by senior executives in Rupert Murdoch’s newspaper empire at the height of the phone-hacking scandal has been found, The Independent has learnt…..

It would be funny… if it wasn’t so funny…. and, it may not  have been just the ‘Axis of Evil Murdoch Empire’ at it….Loveandgarbage has a very interesting letter to The Observer which is worth a read: Correspondence to Readers’ Editor of The Observer regarding Operation Motorman

I had the pleasure last year of interviewing Tom Kilroy, GC at a leading software house, for a series of podcasts.  He has appeared on twitter and has a new blog…and he has rather an interesting blog post: If your GC reports to the CFO, your company doesn’t understand what Legal does

Listen to the podcast Life as an in-house lawyer and how to get ahead with Tom Kilroy –  one I particularly enjoyed doing

And… while I am on the topic of General Counsel or in-house lawyers The Bizzle has this most enjoyable post: What lawyers can learn from call centres

What today’s charter of workers’ rights looks like

The Guardian: Vince Cable should be ashamed of his ’employer’s charter’, which incites bosses to take advantage of workers’ vulnerability

An Englishman, an Irishman, a Scotsman and a woman were called to the Bar…

“That, more or less, is that starting point of BBC 4’s documentary, The Highest Court in the Land: Justice Makers, available on the iPlayer until the 7th of February. The piece is structured around interviews with, domestic footage following and court shorts showing  four Justices of the United Kingdom Supreme Court at work. It’s certainly worth seeing…. ” an excellent review from Lallands Peat Worrier

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The UKSC blog addresses the issue of responsible reporting which I commented on the other day.  It is a cause for concern.

The UKSC Blog: Coverage of Yemshaw judgment raises questions of responsible legal reporting

MPs want to ban the naming of suspects to avoid media feeding frenzies

The Guardian: Bad press behaviour leads inevitably to politicians pushing for laws to curb press freedom. The flouting of the law of contempt (in the Joanna Yeates murder case, for example) has had an inevitable result.

As the attorney-general stood back from the last feeding frenzy of the tabloid and other sharks in the Yeates case – but now supports this action by MPs,  I suppose the best that can be said is,  better late than never.  Freedom of speech comes at a price where issues of a fair trial are concerned.  I would rather have the fair trial.  Comment (and newspaper and media profits will just have to wait until the jury or magistrates apply due process.

An interesting clarification of open justice and the need for restraint from the Court of Appeal in JIH – and – NEWS GROUP NEWSPAPERS LIMITED [2011] EWCA Civ 42

The Master of The Rolls

Open justice and the need for restraint

19. The cardinal importance of open justice is demonstrated by what is stated in Article 6 of the Convention. But it has long been a feature of the common law. It was famously articulated in the speeches in Scott v Scott [1913] AC 417 – see particularly at [1913] AC 417, 438, 463 and 477, per Lord Haldane LC, Lord Atkinson, and Lord Shaw of Dunfermline respectively. The point was perhaps most pithily made by Lord Atkinson when he said “in public trial is to be found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.” For a more recent affirmation of the principle, see R(Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65, paras 38-42, per Lord Judge CJ.

20. However, as with almost all fundamental principles, the open justice rule is not absolute: as is clear from Article 6, there will be individual cases, even types of cases, where it has to be qualified. In a case involving the grant of an injunction to restrain the publication of allegedly private information, it is, as I have indicated, rightly common ground that, where the court concludes that it is right to grant an injunction (whether on an interim or final basis) restraining the publication of private information, the court may then have to consider how far it is necessary to impose restrictions on the reporting of the proceedings in order not to deprive the injunction of its effect.

21. In a case such as this, where the protection sought by the claimant is an anonymity order or other restraint on publication of details of a case which are normally in the public domain, certain principles were identified by the Judge, and which, together with principles contained in valuable written observations to which I have referred, I would summarise as follows:

(1) The general rule is that the names of the parties to an action are included in orders and judgments of the court.

(2) There is no general exception for cases where private matters are in issue.

(3) An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large.

(4) Accordingly, where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought.

(5) Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under Article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.

(6) On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less.

(7) An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public.

(8) An anonymity order or any other order restraining publication made by a Judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date.

(9) Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary.

(10) Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one.

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TOP SECRET / PARTNERS ONLY

BRIEFING PAPER

From: Dr Erasmus Strangelove, Partner, Director of Education, Strategy and Psyops


RE: OPERATION PHARAOH – POSITIONING LEGAL SERVICES IN THE NEW EGYPT

1.  In the wake of events unfolding in Egypt in the last week, from intelligence received from the many, varied and newly minted Egyptologists now broadcasting their views, opinions and thoughts about developments in Egypt on Twitter, I have employed a specialist in information dissimulation and he will be deployed ‘undercover on our behalf’ (Pictured right)  to offer advice to US and UK law firms in London  on the opportunities available to lawyers in what may well turn out to be a new Egypt.  The reasoning behind this deployment is straightforward: The less well informed other law firms are about Egypt, the more likely our own offerings to the Government of Egypt, however constituted, will, be.   We have been fortunate in being able to take advice from an ex-television station reporter  on the traits, knowledge and, most importantly, the dress effected by expert media Egyptologists,  to ensure that managing partners of London firms will feel ‘comfortable’ with their decision to take advice from our operative on matters relating to Egypt. At the moment, we are calling our operative Jamie Ramses; the ‘Jamie’ element providing the right class note and, ‘Ramses’ providing that subtle  Egypt credibility touch.

2.  At this stage, our Psyops unit has not been able to determine (a) whether President Hosni Mubarak will be turning up in Knightsbridge to open a department store with the $25 Billion he is reputed,  by the United Kingdom  free Press,  to have salted away or (b) will continue to govern.  Curiously, not even the United States State Department or, indeed, our own Foreign & Commonwealth Office, were able to give any guidance on this – although The Foreign Office spokesperson at their outsourced call centre in India, who had a very curious nasal Yorkshire accent, did tell us that the prime minister said it was not in anyone’s interest that people are being killed in Egypt ( which they discovered via @Piersmorgan on twitter – a verified personage) and that we should not travel to Egypt unless it was absolutely necessary for us to do so to interfere in the sovereign affairs of an emerging democracy.

3.  Partners may find some comfort, in terms of our dealings with US law firm competitors here in London, that our cousins across the seas do not have a particularly strong grasp of geography according to a Fox News map from 2009 – so we shall do all we can to encourage our competitors to go to Egypt, as depicted on this map, so they can enjoy a warm welcome from the Iraqis. While I appreciate that Partners will be well aware of Egypt’s geographical location, I do like to leaven my Briefing Papers with a bit of light relief,  and the Fox News map is pictured below.  It may be a hoax net post, of course, but I hope that some of our competitors will accept the provenance.

4.  Events continue to unfold.  I don’t think we will see, however, a repeat of the British Government response to The Suez Crisis in 1956.  That would be too much to hope for.  I shall keep you informed

Dr Erasmus Strangelove

Strength & Profits

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I wonder sometimes whether it is laziness, ignorance of the law, manipulation of information for a political purpose or intellectual deficiency, or perhaps a combination of the four, which leads to poor reporting of law in the media.

The King’s Speech is said to be a remarkable film.  That it contains several historical inaccuracies – perhaps not to the point that the only accurate piece of information being that George VI was King, matters not in a drama…or does it?  Christopher Hitchens argues, in times where knowledge of history for many is at best sketchy, that films of this calibre may well distort popular perception of history. I’m happy (up to a point)  to let drama be drama and accept that most seeing the film will understand that it is drama.

The same distortion of perception of law and legal events is arguably true of the power of media in the reporting of law and legal events.

Unfortunately for the media, in the matter of law, if we are to have a credible rule of law of any meaning, it is important that law and legal events, judgments and the like, are reported accurately and fairly. One could add to this the old fashioned concept of responsible reporting.  The disgraceful coverage of the Yeates murder case and the smearing of the reputation of the landlord – who, presumably, will be cleared and released from police bail soon, given that the police have found another suspect to arrest? – is illustrative of a creeping modern trend.

It is bad enough when journalists, many without any formal legal training, misreport on the law – but when weight is added by so called pundits and experts to an erroneous report, the offence to accurate and fair reporting is compounded. When those experts are lawyers – it is, frankly, unacceptable.

Nearly Legal has a fascinating post on this very issue – and I encourage and urge you to read it in full.

On the naughty step – a bag of wind

Nearly Legal has deployed ‘The Naughty Step’ for conduct following on from The Daily Mail’s report on the Supreme Court decision in Yemshaw v LB Hounslow. I agree with Nearly Legal’s dry summation that few would regard the Daily Mail as a newspaper of record…and certainly not for legal matters. The Daily Mail carried the story under the headline:  “Shout at your spouse and risk losing your home: It’s just the same as domestic violence, warns woman judge“.

Nearly Legal puts it very neatly….

“….you may be surprised to learn that it is not the Mail on the naughty step (or perhaps the Mail should be considered to always have been on the step). The Mail is of course a cynical, amoral panderer to a certain petit bourgeois weltanshauung, but it is frankly a bit gauche to be surprised by the depths to which Paul Dacre’s organ will stoop.

No, for the person to be put on the step, we must look to the surprising fact that in its article on Yemshaw the Mail managed to find a supportive quote from a ‘Family Law Expert’, who said:

The judiciary are taking the Humpty Dumpty view, and it risks undermining confidence in the legal system

Nearly Legal notes: [Update: The excellent  UK Human Rights blog has picked up on this post and drawn it together with its own criticisms of reporting of human rights cases – a thoughtful and interesting post. They include a link to the Press Complaints Commission form. What a good idea, and here it is.]

Please do read the rest. Hopefully ‘legal experts’ will keep to their own sphere of expertise, assuming they have any in the first place, before….pronouncing.  I think it best that legal experts themselves do not take a Humpty Dumpty view…lest they undermine faith in the legal system.

In the meantime, of course….. I shall continue to parody through Muttley Dastardly LLP …when I think it appropriate to do so… but that is parody... not legal expertise.

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Regular readers will know that I try to write once a week from The Staterooms… a more relaxed review of the week than the more clinical Law Reviews I trot out during the working week.

While Twitter was ablaze with newly minted  Egyptian experts last night… and even this morning at 5.30 am when I got up, I spent an amusing half hour reading The Sun online… more of which later… but so profound was the effect on me of reading about Jordan and her cross-dressing cagefighter ex-husband and sundry other showbiz celebs, I decided to make myself some asparagus steamed with molten butter and garlic salt poured over them to add to the pleasure.  I then decided it would be an amusing idea to pour some Gordon’s gin into my mango juice.  I don’t tend to drink at breakfast, but I do remember the late great Sir John Mortimer QC telling my law students some years ago that a glass of champagne at 6.30 am daily…  did remarkable things for the mood.  The gin and mango juice did the business..and after faffing around on twitter for a while I enjoyed a long walk down the Thames tow path, and went back to World’s End for a coffee… passing the boat I used to live on at the moorings at Cheyne Walk, Chelsea by Battersea Bridge – hence the nautical flavour of the postcard header  above.

The boats are pictured here at low tide.  When the tide came in, there was much rocking and wine bottles on the table had to be picked up and secured when the suction from the hull in the mud broke free suddenly from the force of the incoming tide.

I thought that part of my postcard this week should have a judicial theme….

First up..an interesting post from John Bolch at Family Lore on the work of Mr Justice Charles, the Family Division’s most appealed judge, apparently.

I quote from John’s excellent blog post – the full post is well worth reading:

Joshua Rosenberg has pointed out the Court of Appeal’s criticisms of Mr Justice Charles, who is apparently “the most appealed-against judge in the High Court Family Division and the one whose judgments are overturned the most”. Lord Justice Wilson said that he had spent days trying to understand the 484-paragraph judgment delivered by Mr Justice Charles, and quoted barrister Ashley Murray who had said in Family Law:

“There are certain challenges each of us should attempt in our lifetime and for most these involve a particular jump, a mountain climb, etc. Akin to these in the legal world would be reading from first to last a judgment of Mr Justice Charles.”
To which Lord Justice Wilson commented: “Mr Murray’s introductory sentences were witty and brave. In respect at any rate of the judgment in the present case, they were also, I am sorry to say, apposite.” Excellent stuff.

And then a wonderful story from The Sun…

A JUDGE let rip at “soft” Britain yesterday after he was unable to jail a burglar caught red-handed.

Seething Judge Julian Lambert hit the roof over sentencing guidelines he claimed left him hamstrung.

He said of a probation report that reflected guidance that the raider should go free: “I’ve never seen anything so wet in all my life – 80 hours community work for burgling someone’s house.”

The judge told Daniel Rogers, 25: “I very much regret sentencing guidelines which say I should not send you straight to prison. We live in soft times now.”

…. He then TRIPLED the amount of community work to 240 hours, slapped a six-month CURFEW on the crook and imposed an 18-month SUPERVISION order.

Rogers was caught trying to raid a Bristol house by the man who lived there.

Judge Lambert told him at Bristol Crown Court, where he admitted burglary: “You’ve got the lot. It may be easier for you to do the time.”

But… it is not just The Sun with the judicial stories. The Times got in on the action with no less a personage than Lord David Pannick QC having a pop at the judge who recently disgraced herself when up before the magistrates herself….

How temper tantrums and loss of judgment can dog a legal career

Lord Pannick QC writes…behind The Times paywall... but I have succumbed and subscribed…I missed The Times columnists and it isn’t that expensive even though I also buy the paper edition.

Last month a circuit judge, Beatrice Bolton, swore and stormed out of Carlisle Magistrates’ Court after being convicted of failing to control her alsatian.

It had attacked a neighbour’s sunbathing son, biting him on the leg. The Lord Chancellor and the Lord Chief Justice, who are now considering Bolton’s future on the Bench, should make sure that her new year’s resolution — “I will never sit in a court of law again” — is fulfilled.

Bolton, who sits at Newcastle Crown Court, walked out of the magistrates’ court when the verdict was announced, shouting: “I’m going. It’s a f***ing travesty”.

Moving away from the judges… I did enjoy this article from Joshua Rozenburg in The Guardian…..

DPP’s power to block war crimes arrests is in the public interest

Critics who allege that arrest decisions would be liable to political interference are deliberately misunderstanding the case

While it may appeal to Richard Dawkins and others to arrest Popes when they visit here… or Israeli government officials.. or, indeed anyone who can come within the definition of a war criminal….some would say, the odd president of the United States, former British prime ministers returning from important business counting their lecturing fees etc etc etc.. it does seem to me, at 6.35 pm on a lazy Saturday evening, a glass of Rioja to my left, that the ability to prosecute such matters should be placed in the hands of the DPP rather than left to sundry libertarians etc etc  to issue proceedings before a magistrate to obtain an arrest warrant… Rozenburg noting…“a warrant may be obtained by a private prosecutor on little more than a bare allegation that a named individual is guilty of an offence under English law.”.

The Guardian covers the story: “The director of public prosecutions has disclosed how he proposes to use unique new powers enabling him to block the arrest of visiting foreigners accused of war crimes abroad….. “

And… while Egypt blazes…according to The Sun…they did have time, today, to scream…

NEARLY 2,000 jailed thugs and perverts will get the vote under the latest Government plans, it has emerged.

I really do think that it is time for the government to implement the ECHR judgments and move on.  The alternative is that we come out of the European Convention or seek amendments. It would be rather ironic, given that British lawyers after WWII were instrumental in drafting the European Convention,  for us to say now that we don’t actually want to abide by it.

On that note… have a good weekend and a good week to come.

Best, as always

Charon

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It sometimes takes me by surprise how quickly Fridays come round – so time for another look from left field from Rive Gauche.

 

Ombudsman refers complaint to CCRC over fear that poor work led to wrongful conviction

This, from Legal Futures, did interest me… “The Legal Ombudsman (LeO) has passed a complaint to the Criminal Cases Review Commission after a solicitor and a barrister’s errors potentially led to a man’s conviction for theft, in one of 365 cases that the service has informally resolved so far, it has emerged.” Well worth a read.

RollonFriday continues to remind its readers about the high salary being taken by College of Law supremo, Nigel Savage, while covering a story on The College of Law’s new two year law degree programme:

“A spokeswoman for the CoL told RollOnFriday that the eye-watering cost hadn’t yet been finalised, but would be “up to £9,000 per year“. She justified this on the basis that students would get 11 hours a week of “face to face teaching” (and definitely not the need to pay its Chief Exec the thick end of half a million quid a year).  More….

On the subject of the two year law degree, which I have offered a view on in an earlier post [Law Review: College of Law to offer two year law degree] –  Alex Aldridge writes : Students weigh up the two-year law degree

British terror suspects banned from returning to UK

In the wake of re-branding Control Orders to TPIMs – which even Rumpelstiltskin couldn’t arrange for anyone to spin into golden PR for Clegg, the government has come up with another wheeze.  When undesirables leave the country (hopefully MI5 will let the government know) the government will cancel their passports and refuse to let them back in.

The Guardian reports: Lawyers condemn increased use of deprivation of citizenship orders, as eight people are served notices while out of the country

With apologies to the silks pictured above.  They were not on a Tunisian style democracy protest march.  I suspect they were on their way to breakfast.  But… it was such a good picture I really could not stop myself!

The UKSC Blog has a fascinating post on…

Do ‘unaccountable and unelected’ judges have too much power?

Legal Week picked it up… and well worth a read…even on a Friday afternoon.

Michael Howard, the former leader of the Conservative Party, this week claimed that “more and more decisions are being made by unaccountable judges”. Essentially making the ‘green light’ argument that judicial intereference with politicians’ decisions should be limited in scope, Lord Howard said: “Judges are unaccountable and unelected and ought to be very reluctant indeed to set aside decisions of this kind”. He was speaking as a group of local authorities were launching a High Court challenge against the Government’s controversial decision to axe Labour’s multibillion-pound Building Schools for the Future secondary school rebuilding scheme.

 

Hat Tip to RollonFriday for publicising this: One-off gig to raise money for the Queensland Flood Relief Benefit – LexisNexis have organised a gig this Sunday, 30 January, to raise funds for all those who’ve been affected by the severe flooding in Australia. Details…

Vince Cable, after a tour de farce on Strictly Come Dancing has taken up stand up comedy. His joke about bankers and skid marks on the road is unlikely to attract any employers apart from reality TV producers who want to go one better than George Galloway dressed in red spandex  saying “Do you want me to be the cat?” on Big Brother – but, surprisingly, he is still a Secretary of State and making some quite important decisions:.  Here he is setting out proposals to reform employment tribunals – a rather illiberal reform from the point of view of the employee but ….SUPER… for employers.

AND finally…… Free Kintish webinar for barristers only 31.1.11

Cassons for Counsel extend to you an invitation from Will Kintish to attend a webinar from the comfort of your own office on Monday 31 January 2011 at 6pm. The session is entitled ‘The Secrets of Great Networkers’ and will last for 45 minutes. Please note that this webinar is completely free of charge!

Details

Cameron calls for ‘reform’ in Egypt

We live in strange times…. and this report from Yahoo.…. makes me wonder ……

Prime Minister David Cameron said Friday that “reform” was needed in Egypt as protests against President Hosni Mubarak’s rule escalated.”What we need is reform in Egypt,” Cameron, who has been at the Davos summit of political and business leaders in Switzerland, told CNN television.

“I mean we support reform and progress in the greater strengthening of their democracy and civil rights and the rule of law. Clearly there are grievances that people have and they need to be met and matched.

Excellent… perhaps we could have some of that in Battersea Square?

I have this image of David Cameron phoning protestors in Egypt to talk about ‘Big Society’ and the Egyptian protests ceasing immediately……  but it is now Friday night…and the Burgundy is rather good…..

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