Archive for September, 2012

I am moving to Kent to set up my ‘forward operating base’ (FOB) this weekend – taking some subversive ducks from Battersea-on-Thames with me to instruct Medway ducks in the delights of subversion.

Once settled – The Van Rouge Tour will start.  I will start in the South-East and go hence throughout our sceptred isle over the course of a year in a camper van.  To avoid inflicting hypothermia on myself in the winter months I may have to stay occasionally in a hotel and will, in any event, return to the aforementioned FOB at weekends to enjoy the pleasures of research and writing up.  In six months time FOB will be moved North and I will take another six month let in a modest dwelling.

Podcasts, voxpops with a television camera, analysis of the legal events of the day, commentary on the changing legal landscape, ephemeral musings and anything else that comes into my surreal mind will be reported.  I am setting up a special Charon Van Rouge Tour blog to place all the posts in one place.  I rather like the idea of going on ‘Assizes’ and creating a Legal Domesday Book.   The plan is to cover England, Wales, Scotland and Northern Ireland. It will take at least a year.

The important thing for me is to have an open mind and talk to many people to find out what they think of our legal system.  I shall be thorough in my investigation and talk to a wide cross section of people – not just lawyers.

I very much hope that regular tweeters who know me through twitter will take part and make this a truly collaborative project.  It will be a pleasure to do and I very much hope readers will enjoy the ‘reports from the frontline’.

I am genuinely pleased with the extraordinary support – financial, moral, encouragement, offers of beds for the nights, offers of dinner –  from tweeters and I will do my best to include as many people as I can in this project.

So far, sponsors have come forward to assist with logistics, running expenses, kit etc: The Law Society, Kysen PR, The Legal Technology Insider, LBC Wise Counsel, Riverview Law, The University of East Anglia Law School, Brecher, Routledge Law, Inksters, Cellmark., The College of Law, BPP Law School, TaxAid, Darlingtons Solicitors, Lawyers on DemandThe Trial Warrior blog

I am not a rich man – nor wish to be.  So… if any other organisations or individuals would like to be involved in this tour as a sponsor, please get in touch with me.  Sponsorships are modest.

3 Gavels Dinner:  @bretttechlawyer is hosting a fund raising dinner in mid-November. Details to follow.  I will be auctioning some of my real artworks and some of my nonsense F*ckart.


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Autonomous #Drones, morals, ethics, and the #Law. A Jurisprudential considerations, PART II

This a continuing working paper to explore how legally and morally we ought to be more socially responsible when developing technology before we create potential monsters, and killing machines capable of making decisions for themselves, without human intervention.

This article was sparked by recent news in the military arena that there exists a drone with limited artificial intelligence, able to make decisions to destroy or not to destroy what becomes an enemy  target.

In Part I, I referred to social media platforms and the need to re-think how we regulate such matters. In doing so, I adopted a Jurisprudential normative positive approach.

I continue with the same approach, accepting that this is not by any means the only approach, and that different schools of Jurisprudential thought may well result in different outcomes.

The crux of this paper continues to be that technology is developing faster than our moral and legal considerations towards it, resulting in an element of instability, and disharmony in society.


I am an avid fan of technology, but not a technical person, so my knowledge of how these things actually work and what they do, are limited. I do, however, have a working knowledge of military tactics and strategy, and an eclectic remote interest in science-fiction, how this has impacted upon Society, and what our Law perhaps ought to be on such matters. This working paper/article, does not seek to consider vicarious liability other than to say, a dog, for example, which does wrong, is sometimes destroyed, and the owner is punished under the Dangerous Dogs Act, because it was not properly controlled. Equally, a rogue robot would necessarily be destroyed, and the Corporation punished.


A long time ago, in a Galaxy far, far away…

The legendary opening words of the Star Wars movies. Yet, that Galaxy of space ships seems a lot closer, given the way technology is developing.

Take Star Trek for instance, when all the gadgetry seemed remote, and far-fetched, and yet here we are in our modern World, taking many of these developments for granted without thinking where they originated. (I.e. Phasers/taser-guns, Communicators/Mobile phones, computers/actual computers). Even Professor Brian Cox @BrianCox commented on the Rob Bryden show that teleporting has been done on a micro-scale, and is possible at least in theory, on a larger scale.

Do you remember, (I stand to be corrected), whether there were any autonomous robots/drones in Star Trek, or Star Wars? Sure, there was the space-ship which returned from deep space, having been tampered with by alien technology, and sought its maker. That, killed things in its way, because it was on a mission to go to its source, and ultimately bonded with man and found peace.

Then, in later science-fiction settings, there was Lost in Space, when family Robinson suffered a killer robot, when re-wired.

Then of course there were the Decepticons from Transformers.

However, more sinister, and perhaps veering towards the dark side of what should be our biggest nightmare, were 2 poignant films: Robocop, where on the one hand, man is half man, half robot, and other machines without the human element, where they malfunction and destroy half the room.

What did those machines lack? A conscience; A human element.

In Yevgeny Zamyatin’s book, ‘We’, a dystopia created following a 200 year War after the World’s resources ran out, a World of glass cubes is created, which centres around the purity of mathematics and equations to decide optimum times to work, to sleep, to eat, etc..This was a book significantly pre-dating 1984 set just after World War I, and the start of the communist revolution in Russia.

The main character, and others, started to reject the happy-clappy perfect society, and developed a soul; A conscience, causing a mini-revolution, claiming that things were finite, and not infinite. People have a choice. They should not operate simply upon a command without occasionally questioning whether what they do is right.

Shortly after this, however, when science-fiction was…still science-fiction, Isaac Asimov pondered Robotics and how it may affect humanity in 1942 when he wrote his story entitled, ‘Runaround’.

He was prophetic in his considerations. He was not guided by mass-production, and profit-making consumerism. Rather, he was concerned that robots may be used as weapons of destruction at a time of course when the World was it war, and horrific acts were being carried out against humanity.

His Law of #Robotics was based upon what was socially acceptable and therefore incapable of being used against society. He was interested in protecting humanity, and re-considering altruistic socially accepted views to find a new norm. He considered further, from that stance, that Law exists to protect such values. That being said, he created 3 Laws of Robotics as follows:

1. A robot may injure a human being or, through inaction, allow a human being to harm; 2. A robot must obey orders given it by human beings except where such orders would conflict with the 1st law; 3. A robot must protect its own existence as long as such protection does not conflict with the 1st or 2nd law.

Later still, in 1985, he felt his initial 3 Laws were insufficient and he created a prequel in his later 1985 book entitled ‘Robots and Empire’. In that book, he created ‘Zeroth’ Law, to which other Laws were subordinate.

Zeroth Law: A robot may not injure humanity or, through inaction, allow humanity to come to harm.

What considerations have truly been given to autonomous robots?

Some years ago, when drones flew the skies, there was controversy then. They were nevertheless guided and controlled with a human element. The decision to press the trigger was not for a machine to make. It was a human who made that decision.

My concerns are threefold:

1. Equations and algorithms are ever-complex, and there are many situations and circumstances we could imagine, which could be placed into a computer programme. What about, the unknown situations?

An example: A drone has been sent to destroy an enemy tank making its way towards a home base. The markings to the computer, identify the tank as enemy, but the troops inside, are in fact friendly special forces, having captured the tank. Does the computer know this? Would a human know this? The troops have some communications and try to make contact with the drone, but to no avail, the drone only responds to central command. The troops realise it is a drone, and hoist a white flag. The drone does to identify or recognise the white flag as a sign of anything of concern and continues its mission. Children seeing the tank, run out of hiding, realising it is their salvation as the troops inside our friendly, and have been walking behind them. The drone only sees the tank, and not the bigger picture. It has no concept of anything other than the mission itself. It is a Doomsday scenario. Human considerations on the front line, give a soldier options as to whether or not to engage. It is that human conscious element, which makes us….human and not machines.

2. What if drones or other autonomous robots fall into enemy hands, or are infected with viruses so that the drones become rogue?

It must surely be conceivable. If worms can get into computers running nuclear reactors of other countries, this must surely be a consideration and a concern?

3. What if a computer gains so much information and data, that it achieves a form of artificial intelligence no longer needing human intervention? Not necessarily a conscience as humans have, but a way and a means to understand an objective to survive at the expense of humanity?

Far-fetched? Maybe. Conceivable? Absolutely!

Did humanity think it was far-fetched to fly to the moon?….but it happened though.

What about Terminator? 😉 Where machines achieve consciousness, and try to destroy humanity?

The writer believes that these things should be properly considered now. The Law should be in place NEVER to allow autonomous drones. It is a step too far in the wrong direction, with unimaginable horrors awaiting us.

The entire project and concept of autonomous robots should be scrapped. We need to re-assess what is important to us. Asimov’s 4 Laws must necessarily be a good starting point.

…or maybe I have this all wrong, and I am working too hard…

Professor David Rosen is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors. He is an Associate Professor of Law at #Brunel University, and a member of the Society of Legal Scholars.

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Dear Reader,

I am homeless from next Saturday – but I am fairly certain I can find a base in another place not far from a river in Kent in  time –  where the subversive ducks who wish to accompany me will be subversive.

I have been a bit pre-occcupied with the need to move to cover legal matters on my blog and I have also been putting detailed plans in place for the Van Rouge / Van Cuppa UK Tour – which is becoming more viable by the day.  I will keep you posted.

I marvel, however, at the astonishing behaviour  of The Chief Prick, Thrasher Mitchell MP.  (The Sun wot haz da storyThe Truth?) While I am certain that police officers have had far worse thrown at them – it is astonishing that a well educated cabinet minister can behave in this way. I understand that he went to Rugby School.  He may have taken the Flashman toasting Tom Brown  over the fire part rather too literally?  It is unlikely he will behave as a gentleman, belatedly, and resign. It is unlikely that our prime minister will sack him.  We shall see.

So we now have the happy position in our Coalition Government of being governed by several laughing stocks who have appeared in the last ten days to amuse us:

First up was Grant Shapps MP, the new Tory Chairman, who has several alter egos on the web and does some every odd things on twitter. Apparently he is a guru under the “Michael Green” brand and advised people on how to ‘market’ on the web.

The Guardian reports: Grant Shapps posed as web guru at $3,000-a-head Las Vegas conference

Then, earlier in the week:  We had Clegg doing an apology and the far more amusing parody from The Poke. I need not rehearse it here because it has gone viral, as apposed to the Tory party going toxic.

The Grauniad again with…. Nick Clegg apology video: the best parodies and….

The Nick Clegg Apology Song: I’m Sorry (The Autotune Remix)

And not forgetting that wonderful piece of Panem et Circenses”  to keep us entertained post Olympics,  lest we fall into Malthusian dystopic desuetude…. the appointment of Chris “Kill a Burglar” Grayling as Lord Chancellor and Secretary of State for Justice. We shall see how that develops in time.  I suspect it will not go well.

Well… there we are.  I shall return on the morrow and shoehorn a bit of law into what is, metaphysically and theoretically at least, a law blog.
Best as always.  have a good weekend


And finally… in case you are worried about all the rage in the world… I repeat an inclusion of  some nonsense I did about twitter some time ago..

Update: Beecham Peacock  is one of the United Kingdom’s leading specialists in many different legal areas, including: personal injury claims, car accident claims and family law.

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Planning a move to Kent for six months for the end of next week and then the beginning of my Van Rouge / Cuppa tour (Details below).  Being sensible, I have decided to find a base to return to at weekends. If I can pull off the tour (I am getting good sponsor interest and many from twitter offering a bed for the night – which is most kind!), I can cover much of England & Wales over six months 4-5 days a week -. I may be a bit blogging light over the next week as I organise this.

However, I hope to do a Postcard From the Staterooms at Battersea-on-Thames – my last from Battersea, tomorrow.

Back later or tomorrow…

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Van Rouge / Cuppa Law Tour of the UK

After 30+ years in legal education – and, to be honest, a bit bored with living in London – I  came up with a mildly surreal idea last year  of touring Britain for 3-6 months doing podcasts with lawyers and non-lawyers as I go –  with a detailed commentary on law, life and other matters as I find them…

IN A VAN… in fact… thanks to @Robert_HM on twitter…. I have a strapline.. “Van Rouge Tour”.  I think Van Cuppa Tour is more appropriate now as a strapline!

I lost interest in the luxuries of life over ten years ago and having spent a lot of time in my early life living under canvas in Africa…. and sometimes… no canvas….the idea of six to nine months in a camper van appeals to me.  It would also be a real pleasure to get out and talk to lawyers and non-lawyers all over the country to see what they think about our legal system.

A mix of podcasts, blog posts, tweets, photos, and even the odd video – with me behind the camera.

I have a few organisations interested in sponsoring this.  I do need a few sponsors – to assist in purchasing a van (6k is a price being offered by a friend – but the van can be sold at the end of the tour and the sponsor will get most of the money back)  Macbook, camcorder and sound recording equipment (£3k) and £15k to cover costs – I will happily cover the rest of the costs. Obviously, I won’t be able to do the consultancy work I do in London and while I am more than happy to take a drop in income to do this project, I have to be realistic and raise £20k.

Our legal heritage in this country is remarkable.  The legal profession is undergoing change. There are fascinating legal cases from history.  I want to write about all of this and talk to people – lawyers, judges, police, prison officers, academics – and do some vox pops with members of the public to see what they think our our legal system.  I think it will be a fascinating project

If any law firm, law school, publisher –  in fact anyone   – is interested in being part of this ‘legal Domesday book’ as a sponsor and being mentioned in ‘reports from the frontline’  please get in touch

NB – I plan to start the tour in the latter part of October – I have to move from Battersea and I would far rather do the tour than sit about in another flat elsewhere…but I first have to get a flat organised as a base for weekends.

Update: Deminos  is the HR consultancy and outsourcing company that offers a unique opportunity for businesses to receive HR services from people who are real experts in their field – as well as receiving seasoned and expert employment law advice.

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This is a developing paper to explore how Jurisprudentially, legally and morally we must be more socially responsible and more forward thinking to curb our enthusiasm for creation. This article relates to #Communications in Social Media Platforms. Part II relates to autonomous droids, and what the Law ought to be.
The Concern:
we are consumed: Western European Society appears to be consumed with materialism, and our superficial needs, driven by consumerism and aggressive advertising, are perceptively heightened for the speed in which services and goods are demanded and provided.
Profiteering, and competition are dictated by consumer sovereignty. we, as a Society, a Nation, humankind, are responsible, a fortiori, irresponsible for the state we are in.
What was the urgency? What was the rush? Are we better people for it?
Technology develops faster than social considerations of it:
The thrust of this paper is that technology is developing faster than our moral and legal considerations towards it, resulting in an element of instability, and disharmony in society.
Investigative Discourse Analysis is concerned, inter alia, with the structure, text, grammar, and overall construction of a sentence, to determine the validity, faith, and truth of a sentence.
Through lack of time, and auto-text, we become lazy. Constructions of sentences when using text messaging, has transformed into a chaos of abbreviations and Internet standards such as ‘b4’, instead of, ‘before’, and so on, and so forth.
Once upon a time when people lived for shorter periods, paradoxically, people took more time, and gave more consideration to what they were doing, and how they were doing it.
The writing of a letter could supposedly be rushed, and unhappily drafted, but the sending and receipt of such communication took days, even weeks.
I am reminded of a quotation attributed to a number of people in originality including, Pascal, Twain, T.S. Elliot, Cicero, and Voltaire, as follows:
‘I made this letter very long, because I did not have the leisure to make it shorter’, or, ‘This letter would have been shorter, had I had more time to write it’.
In other words, it is simple to write with streams of consciousness about a subject, but it takes longer perhaps, to quantify and qualify such ideas into a more compact and concise communication.
I accept that letters sent in haste and in the thick of an argument, could always have been sent, but the technology did not exist for such communications to be pinged so quickly as they can now be through social media and email communications. Equally, a response in haste and in anger, could have been avoided, and averted, and a situation calmed.
There is of course talk in English Literature of the fateful and untimely letter received, or missed, the receipt of which may have altered the course of someone’s life, as in Thomas Hardy’s, ‘The Mayor of Casterbridge’.
Supposedly, lessons to be learnt and a code commenced are:
1.    Never respond to any communications in anger. Pause for thought;
2.    Avoid the accessibility and ease within which to be able to respond. Get up from your desk, and go for a walk. Stop and think about what you may wish to say, and to think of the consequences of saying it.
Communicating without anger:
It is put perfectly in a letter by Sir Arthur Conan Doyle when he writes to someone with the words:
‘…There was much heat when last we spoke. Let me put it more temperately, but no less firmly’.
What makes dressing an argument constructively and with respect, either written or spoken, more or less offensive to the recipient, or other readers?
I do not know, but I continue to ponder this question.
With apparent respect and politeness, the argument becomes less aggressive, less offensive to the ear. An argument becomes more persuasive, more irresistible, when put in disarmingly honest, yet respectful terms.
I wrote recently about blasphemy and its current role in the Law of England and Wales. See http://www.darlingtons.com/blog
I state the dictum in the case of R v Boulter (1908), 72 JP 198:
‘…if the decencies of controversy are observed, even the fundamentals of religion may be attacked without the writer being guilty of blasphemy’.
What decencies? What makes a subject less offensive if stated constructively and with delicacy? What makes the placing of an argument either in writing or orally, more or less offensive?
Offensiveness in communications has been tested recently, in the case of Paul Chambers v DPP [2012] EWHC 2157.
Lord Chief Justice Judge, stated, obiter, and probably this was the stare decisis:
‘Before concluding that a message is criminal on the basis that it represents a menace, it’s precise terms and any inferences to be drawn from its precise terms, need to be examined in the context in and the means by which the message was sent’.
What is the Law on such matters? What should be the objectives of Society? of the Law? These are big questions, but difficult to respond to, without setting the questions within a context by which to analyse them:
Jurisprudence: Normative Positivism:
Let me take this problem slightly deeper, by applying theories of Jurisprudence: That is, the philosophical approach to Law and Legal Theory.
There are many theories but I suppose that in the spectrum of all things jurisprudential, I veer towards normative positivism.
Normative positivism is broken down as follows:
Legal Positivism: A presumption that Laws are validly made in accordance with socially accepted views.
That means that a Law must be properly formed in accordance with those socially accepted views, and that such Law exists to protect such morals and views.
Positivism does not necessarily dictate that the Law must be followed. Instead, it questions and continually re-evaluates why a Law ‘ought to be’, comparative to social values.
Thus, Edgar in Shakespeare’s King Lear says:
‘We must obey. Speak how we feels, not what we ought to say’.
Normative Jurisprudence: What is the goal or purpose of Law? What is the Law relating to communications?
Tweeting and Trolls:
If one accepts that tweeting, and in a new development, mass potential troll attacks which are sustained over a period of time, against an individual, are morally repugnant, then something has to be done about it.
What do we do as Western Society, hold dear to us?
I do not claim in this paper to have or to know the answer, but rather, I pose a possible answer to the current dilemma using arguments of positivism and the normative approach.
H.L.A Hart argues that the Law should be understood as a system of social rules.
Immanuel Kant refers to the deontological theory which is the theory of duty or moral obligation. The presumption is that any rule followed must be universally applied. In other words, altruisms.
Above religion, social, political, and economical factors, there are values that apply to everyone: Virtues.
I postulate some matters for consideration, within the context of social media:
.    Be polite. If everyone were ‘nice’ to one another, with the intent and manner that they do or say things, the ‘heat’ of an argument would be tempered, and a rational dialogue may ensue;
.    There is nothing wrong in being controversial, or funny by way of a parody, but there is no need to be offensive;
.    Comments made in jest, however offensive, but nevertheless short-lived, need to be tested with the intent by which they are said, and to whom, and in what context. This must be differentiated against a prolonged attack
     against someone, and inciting others to cause such offence, must necessarily fall within a class of misdemeanour;
.    HOMO HOMINI LUPUS EST: Man is a wolf unto man. When in a pack, man is capable of being cruel to his fellow man and Laws ought to be in place to protect man from man. (i.e. the weak and vulnerable). Collective Trolling is
     morally wrong. It is not funny. It is beyond distasteful. Responding to offensive trolls in such a way, is taking the Law into one’s own hands. It can not be acceptable.
.    Twitter is not the Wild West. Twitter is unhelpful in suggested guidelines as to what is and what is not ‘abusive’. Surely it is time for Twitter to create a comprehensive list of what is and what is not abusive, with better self-regulating
     and Policing. However, the onus should be on them alone;
.    We have seen how the great and the good responded to morally repugnant comments about various Olympians, and quite rightly so. Again, one must be mindful not to respond to an offensive Tweet creating further offence;
Isn’t it time that social media platforms, especially Twitter, took some social responsibility, and provided better guidance, and handed over ISP addresses upon request from the Police? Isn’t it time that the Police were given the wherewithal, and resources to monitor such activity, and to elevate such crime into statistically accepted crimes worthy of investigation and prosecution?
Tweet nicely.
Professor David Rosen is a Solicitor-Advocate, Partner, and head of Litigation at Darlingtons Solicitors. He is an Associate Professor of Law at Brunel University and a member of the Society of Legal Scholars.

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Value billing… the new black?

Still poleaxed with #manflu… but BBCRadio 4 provides amusement and interest…back soon…

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Not feeling too bright – Manflu.  The above rather sums up my thinking this evening…if one can call it ‘thinking’.

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Taking an evidence sourced approach  to blogging –  the new ‘fashion’:

This is  what happened only last night when I nearly died laughing.

Unfortunately, the issue is not as simple as I assert with that proposition.

I had not considered the possibility of ambulance chasers in my vicinity at the time of laughing at tweets.  Unfortunately, this Wikipedia entry, unedited by the new Tory Party co-Chairman Grant Shapps MP, is not that helpful in defining ‘tweet’.

I was laughing privately and not in a manner likely to worry the Director of Public Prosecutions (Even on a bad day at the office). No menacing laughter justifying a prosecution near Doncaster under s. 127 per the Twitter Joke Trial. Not even the hint of affray, riot, treason, or even  failing to kettle myself when asked to do so, in a group of two, by a police officer.   (See the CPS guidelines for public order offences – whether you intend to amuse yourself by committing same or not, as may be the case).

I was laughing alone.  I did not feel the need to seek asylum at the Ecuador Embassy in London.

Events got a bit out of hand…. the following extracts from official documents provided to The Home Office and other relevant bodies serve as a narrative.


1. I died. I am not, in fact, dead – as will be clear even to judges seeking an appearance in The Daily Mail  (Here and here)  –  cf: despite the death certificate issued by Dr X who has not yet been struck off. (Infra)

2. However – in support of my claim for PPI, whiplash injury, loss of consortium with myself and all other losses, as yet unquantifiable,  but which will almost certainly become clear by the time we get to court, I claim that I suffered nervous shock (without even a hint of novus actus interveniens in between)  after reading the death certificate (infra) which Dr X handed to me after clinically processing  my Centurion AMEX card on his portable electronic wealth modifying device (WMD).

3.  The doctor attended at my rooms in Bloomsbury, accompanied by a solicitor.  They happened to be passing – driving a Toyota Priapic hybrid car en route to a car crash nearby, when they heard my laughter and broke in on the off chance that I may need assistance.


Attended at a flat in Bloomsbury. The law professor was sitting in a chair at a desk. I was able to deduce that he was a law professor by his mode of dress.  He was wearing full academic regalia, including mortar board and red doctoral gown. The professor’s iMac computer indicated that his name was “@ProfRDCharon”.  This was apparent even without an on site autopsy. I was able to form this view by looking at his twitter history (infra)  – The professor’s  browser  revealed that he was, and certainly had been when alive, on twitter. Professor Charon was a ‘goner’.  Dead.   Died Laughing.  Definitely dead.  A solicitor who attended with me also took the view that the professor was dead after consulting an accident claims website to gain a ‘value priced’ billable view.

Dr X

[A] .  I observed Professor Charon at 9.58 pm.  He had been laughing. He was in his chair at his desk.  He wasn’t moving that much after I had to break in. He had not responded to a ‘Direct Message’ on twitter for four minutes before, save to type “hahaha….”
I concluded he was dead.
People can die of laughter. He died laughing.

[B]  In support of this I am able to certify  that the cause of death was laughing

As an after thought to the extraordinary evening I had last night when a doctor and a solicitor broke into my rooms in Bloomsbury, unasked, to  declare  me dead –  I was able to resume my life and took the opportunity to ‘google death by laughing’

I read this on a website: “In the third century BC, Greek philosopher Chrysippus died of out-of-control laughter after he gave his donkey some wine, and then observed it pigging out on figs… Pietro Aretino (below), writer, raconteur, and the founder of “literary pornography,” is said to have died in 1556 of suffocation from laughing too much…

Read more on death by laughter on Wikiepedia…why not? – death by laughter is a bit over rated and didn’t work for me…..

AND… from the website, aforeto mentioned:

“More recently… On March 24th of 1975, Alex Mitchell, a 50-year-old bricklayer in Norfolk, England, kicked his bucket while howling with laughter over the “Kung Fu Capers” episode of his favorite TV show, “The Goodies.” The episode featured a kilt-clad Scotsman attacking a vicious-looking blood pudding with his bagpipes, and roundly trouncing it. After laughing uncontrollably for twenty-five minutes, Mitchell finally succumbed to heart failure on his sofa. His bereaved widow reportedly sent a letter to the producers of “The Goodies” in which she thanked them for making Mitchell’s final moments so enjoyable!”

While I am, of course, sympathetic to the last unfortunate demise – it is pleasing to see that The Goodies amused someone. I am still recovering from the trauma in childhood of watching same on television.

A most puzzling evening.  I continue, however, to live and I am grateful to my brother Charon QC for this opportunity to inform on this pleasing event in his blog.

BY Professor R.D. Charon LLB (Cantab), BCL, Ph.d,  FRSA
 – Emeritus Professor of Jurisprudence, University of The Rive Gauche, London Faculty, London
Author: “Legal Nihilism: Taking Rights Seriously, seriously”, Maninahat Press, 2009

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Professor David Rosen
This is an academic discourse on the subject of ‘blasphemy’. The opinions are my own and not that of Darlingtons, Brunel University, or the Society of Legal Scholars.

I write this article on the Aristotelean premise that:

‘It is the mark of an educated mind to entertain a thought without accepting it’.

It is written because some issues need to be aired, and politically correct people telling us to leave things well alone (Especially the atheists and the nihilists), are becoming tiresome.

Until recently, the swearing of an Oath on solemn statements/Affidavits before the Courts, was mandatory. I have already written an article as to why what is left of swearing Oaths, should remain. (The Darlington’s blog archive of posts by Professor Rosen)

An integral part of British Society called upon the acceptance of a superior omnipresent being, that governed the ways of the World by way of a divine presence and divine providence.

That acceptance brought an understanding of Christian values and Christian beliefs without which it is at least arguable that the Order and foundation of moral understandings and beliefs founded upon religious values, may not have evolved quite how they did.

The obvious case, as all Law students know, is that of Donoghue v Stephenson [1932] UKHL 100, loving one’s neighbour: Essentially one of the 10 Commandments, and in any event, a Noachide Law. The entirety of the common Law of Torts is founded upon such an understanding that tortious duties exist in a wide variety of subjects such as Consumer Law, Professional Negligence, Personal Injury etc…

Indeed, fairness, mercy, and forgiveness, are all fathers of the Law of Equity, and mitigation in  Criminal Law, which are founded upon ethics and morals from the Old Testament.

One day, God became…less important in our Law. It has for some time been uncool, and über-cool to believe in nothing, so that we have a whole array of nihilists on the one part, atheists, sort-of-go-with-the-flow believers, and religiously accepting.

I wish to immediately distinguish that this article relates to blasphemy and blasphemous libel, as opposed to religious hatred which is a different thing altogether. Blasphemy was governed by various Statutes of Law which were revoked in May 2008 under the Criminal Justice and Immigration Act 2008, whereas the latter continues to be governed primarily by the Racial and Religious Hatred Act 2006.

Blasphemy was a criminal offence punishable with the death penalty until 1676, and thereafter punishable with a fine and/or imprisonment. The criminal aspect of blasphemy was abolished by the Criminal Law Act 1967.

Blasphemy as a common law offence, was abolished as recently as 2008.

What changed? What went wrong? What went right?

In a developing Society/Empire (as then it was the British Empire), Christianity was inextricably linked to the Laws of England.

In Bowman v Secular Society Limited [1917] AC 406 at 457, Lord Sumner refers to the older Taylor’s case of 1676 1 Vent, as follows:

‘…and Hale said that such kind of wicked blasphemous words were not only an offence to God and religion, but a crime against the Laws, State, and Government, and therefore punishable in this Court. For to say, religion is a cheat, is to dissolve all those obligations whereby the civil societies are preserved, and that Christianity is parcel of the laws of England; and therefore to reproach the Christian religion is to speak in subversion of the Law’.

Post World War II, in 1949, Lord Denning in a speech, said:

‘It was thought that a denial of Christianity was likely to shake the fabric of Society, which was itself founded on Christian religion. There is no such danger to society now, and the offence of blasphemy is a dead letter’.

Post-1945, blasphemy was considered not so much a violation of the sanctity of God’s name, but rather an attack on the moral principles which constituted the Law we have, based on Religious teachings.

In Whitehouse v Gay News Limited [1979] AC 617, the matter was debated in the House of Lords. As per Lord Scarman, the principle of the Laws relating to blasphemy are as follows:

It is not blasphemous to speak or publish opinions hostile to the Christian religion, or to deny the existence of God, if the publication is couched in decent and temperate language.

The test to be applied is as to the manner in which the doctrines are to be advocated, and not as to the substance of the doctrines themselves.

Blasphemy Laws only applied to the Christian Religion, because this was what was directly applicable to the foundations of The Laws of England and Wales.

The actualite of blasphemy had nothing necessarily to do with God, per se. Lord Scarman summed up the position that blasphemy has a role to play, and the Laws of England should have continued to uphold the Laws of blasphemy moderately applied as per Whitehouse v Gay News, in order to ‘safeguard the internal tranquility of the kingdom’.

The Law has moved on and developed so that anyone using threatening or publishing words or behaviour in relation to any religion or faith, or those with no faith or religion with religion imposed upon them (which is a paradox, given the basis upon which English Law developed), to stir up religious hatred, may be guilty of an offence contrary to the Racial and Religious Hatred Act 2006.

As with the Communications Act 2003, there are varying degrees of what constitutes ‘offensive’, to the extent that it is actionable. Lord Chief Justice Judge summed up the position in Chambers v DPP [2012] EWHC 2157:

‘Before concluding that a message is criminal on the basis that it creates a menace, it’s precise terms, and any inferences to be drawn from its precise terms, needs to be examined in the context in and the means by which the message was sent’.

The United Kingdom is a multi-cultural society. Some say that our Islands are populated as a direct result of the British Empire coming to an end, and the Empire coming home to roost.

Technology is evolving at a phenomenal speed. The future of World Economies are uncertain. Consumerism and Materialism are rife. Societies need guidance. Religions gave and give a structure of how to behave morally and ethically. Certainly from a Christian perspective, those same morals and ethics have found their way into the development of our Laws, and to a large extent, morals and ethics by way of altruisms are fairly consistent in every religion. How to punish, guide, or protect those morals and ethics, differ considerably from religion to religion, and faith to faith. Have we done away with religion? Do we have a firm grasp of what is and is not good? Is this reflected in our Laws?

In a Nietzschian context, is God dead? Are our Lawmakers at least, ubermentschen above the Law who can make Law for the masses?

Our Laws are based on sound morals and ethics rooted predominantly from the Old Testament accepted by Christians, Jews and Muslims alike.

There is much to learn from Religious Sages from all religions and faiths, and we would be foolish not to be open-minded and discuss such matters openly, and take all that is good and compatible with the Laws of England and Wales.

Professor David Rosen, is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors. He is a visiting associate Professor of Law at Brunel University, and a member of the Society of Legal Scholars. He is also a practising Orthodox Jew.

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Dear Reader

A man who doesn’t approve of Bed & Breakfast owners being banned from banning gays…. a shield muncher with ‘form’  who enthused about the “Kill a burglar” law reforms… is promoted to the rank of Lord Chancellor  and Secretary of State for Justice –  a man who, through no fault of his own, knows no law.   It may not be long before Mr Grayling fails to understand just how complex our legal system is.

I  will be delighted if he doesn’t mess this up – and proves to be one of the greatest Lord Chancellors we have had.  The list of ‘great’ Lord Chancllors is  not a very long list. I suspect that a 140 character tweet would do the job for that list?

Say what you like about Lord Irvine – a ‘real’ Lord Chancellor – when he was taking time out from selecting wallpaper – I can’t recall much of any use that he did.  In fact, to be honest this sunny afternoon, I can’t be bothered to remember anything he did.  And as for Sir Saint Thomas More,

This is one of his views…

“Ask a woman’s advice, and whatever she advises, Do the very reverse and you’re sure to be wise”

So… not much evolution in the last few hundred years, it appears, at the pinnacle of our political  mind?

Mind you… another Chancellor, Adolf Hitler – not a Lord Chancellor, of course – once said

Make the lie big, make it simple, keep saying it, and eventually they will believe it”

Let us hope that Lord Chancellor Grayling learns tolerance and inclusiveness.  He may well have until 2015 to discover these basic human qualities?  The good news?  It is unlikely that Mr Grayling will be made a Saint – unlike his illustrious predecessor Sir Saint Thomas More.  But, you never know with this government:  They hand out honours with P45s.

Mr Grayling is now at the political pinnacle of our ABS/Legal Services Act  driven  legal system (Thankfully, no longer in charge of appointing judges – but still retains ‘powers’). This Saturday’s excellent episode of The Thick Of It – available, for the time being, on iPlayer – may give you some comfort in these dark days.   Some wonderful lines.  My favourites:

“You used a lot of words today… it was like a Will Self lecture”

“Sorry, darling… got to go… I think the bailiffs are coming to take away my will to live.”

(I am sure that I will have opportunity – perhaps without the ‘Darling’ –  to use the latter line)

If you have the urge to read something vaguely sensible on this most ‘unusual’ of appointments – Joshua Rozenberg does the business in The Grauniad:

Chris Grayling, justice secretary: non-lawyer and ‘on the up’ politician

“Grayling’s main qualifications for justice minister are that he is perceived to be right-wing and once shadowed prisons”

Anyway… enough of the absurd unprovoked ‘ad hom’ attack on Mr Grayling, who, I am confident is a nice chap and plays a decent game of golf when he isn’t out looking for burglars ….. have a good rest of a very sunny weekend.  The winter of all our discontent may well be coming very soon….would next Thursday suit you?

Best, as always



Update:      DeNovo London is a law firm that specialises in legal costs; they are the legal costs negotiators that have experience working across a wide array of industries and have the tools to tackle any law cost issues you might have.

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Back t’blogging this week… took a short break from blogging and twitter to do some other writing…and planning a new series of podcasts.  Law Review Weekly also returns

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