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Archive for May 20th, 2011

After a surreal week of dentals, serious meds and a birthday – and reeling from the Court of Twitter on Ken Clarke – I read with mounting astonishment some world class nonsense in The Telegraph which restored a degree of sanity to my fevered brow…

David Cameron’s uncle says voters want to be led by an aristocrat

The Telegraph: “David Cameron’s uncle Sir William Dugdale says the working classes prefer to be led by an aristocrat and the Prime Minister should not be ashamed of his background. While David Cameron has often gone to embarrassing lengths to show that he is prolier-than-thou, his uncle Sir William Dugdale has no such inhibitions…….”

Sir William Dugdale is reported as saying…

“You can’t just turn up to things in an open-necked shirt,” he says. “So many of the clubs in Oxford required you to wear white tie. You have to have a bath before you go to things and not just turn up in your bovver boots.”

If you thought that *British* lawyers could get up to weird things… this astonishing saga of a US lawyer suing some 74 leading US lawyer law bloggers (and one Canadian blogger) is incredible…

Here… Antonin Pribetic of The Trial Warrior blog,  takes up the latest episode of the saga…

This… is WORTH… a read… I shall return… later……

This comment is well worth extracting to the main  body of the post…

Colin Samuels

A minor clarification of a couple of points regarding the “Rakofskylypse”:

While the initial complaint named 74 defendants, these are not all legal bloggers. The “Rakofsky 74″ included two newspapers, together with their parent companies and three reporters, the American Bar Association and its website, and (I believe) at least a couple of folks who were commenters on others’ posts.

The original Rakofsky 74 are now joined, in a no-less-frivolous amended complaint, by another half-dozen-plus defendants, making for a grand total somewhere north of 80 (I’m too lazy to count it up right now).

In the interests of full disclosure, I should note that I am one of these latter defendants. My employer is as well, though it’s plain to anyone visiting my site that they have no connection with my personal blogging (in 6+ years, I’ve only generally alluded to my position and have never mentioned my company by name). Rakofsky and his lawyer have drafted quite the scattershot complaint.

It’s great to see some interest from our legal brethren across the pond. I hope you’ll all stay tuned to enjoy the show as we return fire against this crapweasel in the very near future.

AND finally… all I have to say on the tweets on Twitter tonight about someone suing Twitter for something…

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Britain is right to honour this champion of the rule of law

Lawyers and non-lawyers who find law interesting  will need no introduction to Lord Bingham.

[Pic credit: The Guardian]

Peter Oborne, writing in The Telegraph, has a fine piece on Lord Bingham’s considerable influence in our society through his work as Lord Chief Justice and law lord and argues well the point that had it not been for the judiciary under Labour over the last thirteen years (and now under the Coalition) the political elite may have gone – and may now go – far further in eroding our liberties to suit the convenience of their rule by law.

I quote from Peter Oborne’s article: “The emergence of this new elite has done terrible damage to the reputation of Britain as a decent, law-abiding and tolerant country. This damage would have been far greater but for the integrity and independence of the British judiciary. That is why, from a decade marked by its greedy bankers, venal politicians, compromised spymasters and failed generals, Lord Bingham will be remembered as the most admirable and virtuous figure of his time.”

Today, Lord Neuberger MR published his report into Injunctions – the latest act in a play being played out between the competing interests of reasonable privacy and the commercial needs of some sections of the mainstream media.    It is an interesting report and I spent much of the latter part of the morning reading through the 112 pages carefully.

Lord Judge, Lord Chief Justice, welcoming the report said:

“No one, and in particular no judge, doubts that the open administration of justice is a long-standing, treasured principle of our legal system.

“Before 2000 there was in England and Wales no general right to privacy and therefore no right to an injunction to protect or enforce any general claim to privacy. The development of privacy rights since 2000 was an inevitable consequence of the enactment of the Human Rights Act 1998 and the incorporation of the European Court Convention of Human Rights, and in particular article 8 of the Convention, into domestic law. That consequence was indeed clearly explained to Parliament before the Human Rights Act was enacted.”

“Contrary to some commentary unelected judges in this country did not create privacy rights. They were created by Parliament.Now that they have been created judges in this country cannot ignore or dispense with them: they must apply the law relating to privacy matters as created by Parliament, including those relating to the enforcement of privacy rights by injunctive relief, balancing them with the rights underlined in Article 10 and the principle of freedom of expression. The relationship between Parliament and the courts has, for generations, been predicated on mutual understanding and respect.Judges have never asserted, and they are not now asserting, any authority or jurisdiction over Parliamentary proceedings or debate, which are exclusively matters for Parliament.”

Adam Wagner of the UK Human Rights blog was probably first out of the starting blocks with his analysis: Turns out there weren’t that many super-injunctions after all.

David Allen Green, solicitor, and author of The Jack of Kent blog,  tweeted soon after with his observation that Paragraph 6.33 was significant.

I extract 6.33 for your convenience.  The preceding paragraphs of the report make fascinating reading.

6.33
It therefore appears to be an open question whether, and to what extent, the common law protects media reporting of Parliamentary proceedings where such reporting appears to breach the terms of a court order and is not covered by the protection provided by the 1840 Act. What is clear is that unfettered reporting of Parliamentary proceedings (in apparent breach of court orders) has not been established as a clear right.

And @Loveandgarbage brings an element of very real realpolitik to the media frenzied discussion by noting, in the *Fred “The Shred/Bed injunction saga* that yesterday’s use of parliamentary privilege in the House of Lords  by Lord Soneham on behalf of his Liberal Democrat colleague, Lord Oakeshott was….

“…. no great triumph for Parliamentarians over the courts in a battle over the meaning of public interest. The battle over the meaning of public interest was not waged in the court.”

The Ken Clarke saga was well rehearsed / butchered on the Court of Twitter – and, less forgiveably so, by Mr Miliband at PMQs yesterday when he called for Ken Clarke’s head.  Salome Miliband may well come to regret his eagerness.  There is no doubt that Ken Clarke should have been more careful in his use of language on this highly sensitive issue – but he has apologised (an apology which may not be accepted by all) and he wasn’t wildly off-beam in terms of the highly complex use of ‘discounts’ for pleading guilty nor in his reasoning for their use in ensuring that justice is done.

Many have written on the topic – but this piece by Neil Monnery gives a very good parodic analysis of the very real dangers of kneejerkitis and the *Court of Social Meedja*…

Ken Clarke – a trial by modern social media

Barrister, Felicity Gerry… brings some good analysis to the issue… writing in Legal Week: Understanding rape sentencing: Ken Clarke and the ‘guilty plea’ debate


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