Am I a legal commentator or not?

I had to face a quandary today — am I a legal commentator or not? I write a blog, which has been known to discuss legal matters in the public awareness, or indeed comment on individual cases, from time to time. But is that enough? And does it even matter?

The reason for this thought is that the Lord Chief Justice has today issued a new practice guideline, covering who may tweet, or use other forms of text-based communication, from inside the courtroom. A “journalist or legal commentator” is not required to ask permission before doing so, everyone else is required to ask permission of the presiding judge.

There is a problem in this guidance though. There is no test to identify who is a legal commentator. Journalists are usually able to relatively easily identify themselves as such if challenged. However, there is no single identifying feature for the disparate group of us who from time to time comment on the law. Should we carry a printout of our blog, perhaps?

So is the category of legal commentator of any use to individuals? I suspect not. If I tweet from court without asking on the basis that I am a legal commentator, I doubt asserting that I am would aid me if the judge notices that I haven’t asked and hauls me up to explain myself under threat of the provisions in the Contempt of Court Act.

Therefore, even if I consider myself a legal commentator, I would submit that, for other than accredited journalists, the best course of action is always to ask permission of the presiding judge, via the court staff. The practice guidance, by its lack of definition of who are members of its permitted categories of tweeters, leaves too much room for misunderstanding. As in individual, I wouldn’t want to run the risk of any such misunderstanding causing me grief.

To some, court dress is important.

Getting up and talking in front of people is one of these activities that does not often come naturally. I have been doing in different ways from around the age of 13 — the thick end of thirty years, now. I have done it in a wide range of forms — on stage in plays and public speaking competitions at school and university. Presentations to clients and to audiences of peers at work–related conferences and events. I have pitched for work, I have spoken at family celebrations. I have toasted friends and colleagues, I have been the anonymous voice telling audiences what to do on leaving the theatre. You think I’d be used to it by now.

Not really. It’s true that skills become more finely–honed by practice. It’s easier for me to flow whilst speaking now — the words come easier, take a shape and a structure, hit the points I wish to make and leave the audience (I hope!) content with what I have expressed and the way in which I have expressed it.

But I’m not a natural public speaker. The thought of standing up and saying things to other people used to scare the living daylights out of me. Actually doing it was not much better — and the window just before starting was particularly horrible. It took an effort of will for me to stand out there and speak. Some people can do this without apparent effort. Most people cannot.

But one of the things that made it easier was the preparation. On the stage, I’m in costume and makeup, performing the rôle. On a stage at a technical conference, I (now) have my own little rituals of preparation[1]. Even toasting my Dad’s birthday, I still draw myself together, neaten the shirt, smooth the tie, prepare to be watched as much as listened to.

I read today that in the Supreme Court, that (if all advocates agree) the wearing of formal court dress — wig and gown — can be dispensed with. I fervently hope that this practice is seen to be an exception, and does not become extended to the lower courts. There are several reasons for me thinking this.

Firstly, the fact that the justices of the Supreme Court do not wear robes or wigs is a historical accident. The behaviour was imported to the Supreme Court from its predecessor body, the Judicial Committee of the House of Lords, which maintained the fiction that it was not actually a court and therefore its members dressed in day dress, not court robes.

Secondly, there is no scientifically reliable evidence on whether anyone thinks how advocates or judges dress (with one exception) matters. The exception is the Family Court, where the requirement to put vulnerable or young witnesses in as familiar an environment as a court can be made to be, should (rightly, I believe) be paramount. Apart from that though, there is no serious statistically rigorous research done on the question. And simplistic questioning will get the simplistic answer. But the level of answer is only limited by the questioner — I could frame a question that would get criminal cases at the Crown Court heard by someone wearing a black trackie, with lilac and red piping, no problem!

So now that change for historical reasons and for perception reasons are eliminated, I want to set out my stand. As a very junior potential future advocate, I like the wig and robe. Even though I have never worn one.

I believe it allows people to step beyond themselves, and assume the rôle.

We are asked to take whatever case we are given, whether we believe in it or not. We are asked to prosecute the potentially innocent and decent the potentially guilty, without fear or favour. The cab rank rule applies — we have no say in the cases that are given to us. And those are good and necessary things for the administration of justice. One of the counterbalances to this in my view, however, is that it is important, especially for those new to advocacy, is to physically have the act of being the advocate, and the act of becoming the individual again. The distinction between individual and job performed. And, for a lot of people (and I hope to be one of them) this is signified by the putting on of the wig and gown.

It’s the assumption of the rôle, the preparatory step that takes you beyond yourself as an individual. The donning of the wig and gown is the physical act that turns the person into the rôle. Game on, as it were.

At the levels of the Supreme Court, at which only the most competent, the most in command, the most skilled are ever likely to practise — I can see that there is not necessarily any need for the advocates and barristers there to be in court dress. However, in the lower courts, there are many people who take some comfort in the wig and gown. I know I will. It may seem to be a trivial thing, an anachronism in this day and age. But to those who wear it and those who aspire to wear it, it can represent something that is the representation of something more important than themselves as a person.

I realise this is an entirely emotional argument, and one that can be easily countered. Is it therefore a just a cypher that I look up to? Maybe I need to find another less physical mantra that allows me to go “game on”. But given that there is no statistically rigorous evidence that anyone finds the wig and gown to be an issue (let alone comparatively how important an issue), and given that I like its ability to step me out of “me” and into what I need to do — let’s ignore this for a bit. I’ll keep the wig and gown I hope to wear, if that’s all right. I’ll ditch them in an instant if if anyone can prove that people think that matters.

“Take your change and keys out your pocket. You won’t nervously play with them in your pocket. For the love of god, think how it looks…”

Calculate your Open University Law Degree classification

Sometime ago I posted a link to another blog containing a link to a degree classification calculator for Open University degrees. However, the way the classification is calculated for OU law degrees is slightly different. Luckily, it’s pretty simple to work out.

The OU law degree consists of 4 mandatory courses: W200, W201, W300 and W301. For W200 and W201, multiply your grade (1–4) for each course by 60. For W300 and W301, multiply it by 120 (to reflect the degree of significance for these courses). Take those four numbers and add them together. Their sum will give your class of degree:

  • 630 or fewer — First class honours
  • 631–900 — Upper second class honours
  • 901–1170 — Lower second class honours
  • 1171 or more — Third class honours

There is one trick to this. If you have a poor result in either W200 or W201, you can replace half of it with a better result in one of the law short courses: W221, W222, W223 or W224. For example:

Grade 3 pass of W200: 3 × 60 = 180 points.
Grade 3 pass of W200 and a Grade 1 pass of W223: 3 × 30 plus 1 × 30 = 120 points

That can be enough to pull you up a grade!

Just for completeness — while you need to sit 360 points’ worth of courses, it is (with the exception noted above) only the 240 points of the mandatory law courses that count to your law degree classification.

Source: (and a really useful read for all OU law students) Choosing your path to an Open University Law degree: a guide

Royal and Sun Alliance Insurance – where does this ultimately lead?

My gut instinct regarding my last post on Royal and Sun Alliance Insurance’s business structure increasing the costs of accident repair was that it was unlikely to be the end of the matter. Permission had been granted to appeal; I fully expected to see the matter be resolved there. But that would only determine the law as it applied to the factual matrix of the case in question. That approach would be unlikely to help other cases much — it would be open to argue that the factual matrix was sufficiently different that the appeal judgment did not apply. This clearly would not address the core question.

Provident Insurance has decided though to take a different approach: to seek determination from the Commercial Court — a specialist branch of the Queen’s Bench Division of the High Court — as to whether RSAI’s commercial model is legally correct. In the case I last wrote about, it was held (at County Court level) that it was not, but clearly there has been a difference of opinion between County Courts. RSAI has agreed that it’s desirable that its business practice in question be tested for legality.

So in Coles & Ors v Hetherton & Ors [2011] EWCH 2405 (Comm) Provident and RSAI have both brought claims between themselves in the High Court itself (normally they are precluded from doing so because of the likely size of award), and transferred in cases from the County Courts. The next step will be the selection of lead cases in this matter.

This is all at a very early stage, but it has potentially far–reaching effects. The lead cases will determine the shape of the case as it will be heard, but there are more situations than just vehicle repair paid by an insurer where a corporation’s internal group structure can lead to additional costs being passed to the person who ultimately pays. In the case previously mentioned it was entirely unclear why additional costs were levied by the intermediate insurer–owned company, and this is why some County Courts have rejected such additional costs.

However, there could be potential situations where such additional charging was transparent, and also necessitated by a business structure chosen for legitimate other reasons, for example tax minimisation. Whether increasing the cost to the end consumer in order to achieve an unrelated advantageous financial outcome for the company as a whole is the ultimate question here, and one that is very interesting indeed.

Case Comment: Fallows v Harkers Transport (Royal and Sun Alliance, vehicle insurance)

Mr Fallows’ car was damaged by a vehicle owned by the defendants. Liability was not an issue. Mr. Fallows’ vehicle was insured by Royal and Sun Alliance, who sought to recover their costs from the defendant’s insurers. The costs were £1825.53. Not a large sum. However, the defendants objected.

The reason for the objection was that Royal and Sun Alliance arranged repair via a wholly-owned subsidiary, which then contracted with a subcontractor, who actually repaired the vehicle. The subcontractor billed the subsidiary the sum of £1542.78. The subsidiary added on further costs, and billed Royal and Sun Alliance.

In Romford County Court, the defendants questioned the sum claimed. It was held that, given the duty to mitigate, the best evidence of reasonable cost of repairs was that which RSA’s subsidiary negotiated with the subcontractor. There was no evidence that RSA itself could only negotiate a higher price. While administration costs have been allowed by the courts in the past, there are no decisions allowing them to a subrogated insurer, let alone a subrogated insurer’s subsidary. And in counterbalance, there are decisions where administration costs have been disallowed.

The Judge (Platt J) said:

Since RSAARL is wholly owned by RSA the effect of these extra charges if they are paid by defendants is simply to boost RSA Group’s profits beyond the actual cost of repair by the margins inserted by RSAARL. I can find no basis in law for saying that this is a course of action which a claimant insurer is entitled to take [..]. On the evidence the defendant has clearly established a failure to mitigate on the part of the claimant.

Now that this judgment is public, the utility of this business arrangement to RSA is probably moot. Other insurers could use the same model. This however was found to be likely to lead to an increase in costs to the insured members of the public of some 25%.

RSA were held liable in costs to the defendant — exceedingly unusual in a small claim. Even though they were the claimant, they almost completely failed to comply with pre–action protocol and with the court–ordered discovery process. For example, the existence of a formal invoice from the repairer to RSA’s subsidiary was not disclosed, even once its existence had become apparent during the trial.

Permission was given to appeal.

Judgment in the case can be found on BAILII at Fallows v. Harkers Transport (A Firm) [2011] EW Misc 16.

Your data in the Cloud is not secure from the US Government

Data storage in the cloud is clearly the where things are moving just now. Given the plethora of devices people have — computers at home, laptops and tablets on the move, smartphones in the pocket, it makes perfect sense for all of a person’s devices to use a single, common repository for shared information. Services such as Apple’s forthcoming iCloud at the domestic level, and commonly–used services such as Google’s Google Apps, Salesforce.com and Microsoft’s Office 365 all store your data in their own clouds.

You’d think that this would be done with respect to Data Protection laws. Wrong. If the USA wants your data, the USA gets it. My friends Simon Bisson and Mary Branscombe have the details: regardless of European privacy directives and the UK Data protection act, the US see the PATRIOT act overriding these for US companies and EU subsidiaries of US companies:

That means that US government can (under the auspices of the act) request the data of any individual or company that’s using US-owned or hosted services, no matter where that data is actually being held. It doesn’t matter if you’ve geo-locked your data, and it only resides in European data centres, it can still be requisitioned and taken to the US. Yes, it’s an issue of national security, but when results can be found by machine learning and trawling massive data sets (the larger the better), there’s a temptation for governments to take all they can and more.

Undoubtedly this will lead to much hand–wringing in the EU Parliament. However, what can be done? It is unlikely that the USA will give up their powers.

Therefore, the only solution is in the hands of individuals and companies wishing to use cloud services — only use cloud services from wholly–EU–owned companies hosting your data inside the EU. While the legal protections you will have in those circumstances are not huge, they are better than none at all.

Oh — an afterthought. How happy do you now feel, if perhaps you have just given a whole heap of your personal information to Google, during the Google Plus sign–up process?

Hookway – I was there

Back in the middle of may, I had just finished studying my judicial review modules on my law course, and I thought it would be a good use of a free day to head to court to see judicial review in practice. As luck would have it, there was a case listed that day, the 16th May, at Manchester Civil Justice Centre:

R (Chief Constable of Manchester Police) v Salford City Magistrates, case CO/3649/2011

Interesting, thought I. There had been a few cases in my notes where a decision of a Magistrates Court had been judicially reviewed, but not any on the behest of the police. I decided to attend.

Of course, this case is now known as Hookway. I really couldn’t have chosen a better case to sit in upon, in terms of its repercussions.

The problem highlighted by the case can be summarised pretty quickly. Once the police arrest someone, they only have a certain number of hours to question them before they must be released. That time can be extended, but only to a point. The question is, when a person is released on bail, is the “clock” still running, or has it been paused?
It has been police practice to assume the latter as long as the current régime, introduced in the Police and Criminal Evidence Act 1984, has been in force; but the sections in question — 41 to 47 — are remarkably unclear, and in fact make no mention of the clock stopping.

In the court itself, there were eight people. Mr Justice McCombe, the court clerk, one usher, two policemen, one police solicitor, Ms. A Whyte QC, and me. Salford Magistrates and Paul Hookway were not represented.

Everyone in the courtroom that day knew this application was difficult, and that it had consequences. Everyone was fully aware that the repercussions of upholding the lower court’s ruling would be far–reaching. Ms. Whyte QC ably led the court through the complexities of the legislation, pointing out, entirely fairly given that the defendants did not appear, the perspective from both sides of the argument. There was absolutely no previous authority on the question, and only one academic work (which was not on point to the question at hand). The Judge and Ms Whyte slowly and carefully picked their way through the six relevant sections of the act, taking over two hours to do so.

It was hugely interesting to watch these people dissecting the sections of the act in various ways, trying to tease out the precise meaning of the words of the act. Serious people, at a serious task.

Sadly, I was unable to attend the handing–down of the judgment, which happened on Thursday the 19th May. The judgment wasn’t made public until the middle of June — and then, of course, there has been the usual raft of publicity. While there has been some reasonable coverage in the press, it’s sad to see that coverage descended rapidly in the BBC and the Guardian.

Today, two developments have occurred. The Supreme Court have turned down a request for a stay of the ruling, prior to their hearing an appeal from it on the 25th of July. And on Thursday, the Government are introducing legislation to overturn the ruling.

While the details of the legislation are yet to be published, it is very likely that they will change the law to how it was believed to be prior to the ruling in Hookway. This may be a missed opportunity. Letters in the Guardian suggest police bail can be abused, by the imposition of restrictions during bail. Rather than enact in law a patch to re-establish the status quo, might it be time to take a long look at the legislation surrounding arrest, detention and bail, and re–enact it to get rid of its inconsistencies, lack of clarity, and exploits?

Back up your information in Google – Google Takeout

Worried about the amount of information you have stored in Google services? Fear not. Just launched today is Google Takeout — which allows you to take a local backup of (so far, some of) the information stored in several of the Google services.

It’s not yet full–featured: it only allows backup from Google Buzz, Contact and Circles, Picasa Web Albums and from your Google profile. But the Data Liberation Front promise to add the ability to back up other Google services over time.

This is their blog post announcing the service. Remember: backup early, backup often.

More on media responsibility and injunctions

A month or so ago I wrote an article on here about how the rise in injunctions granted protecting the identity of the parties was the fault of the tabloids, and it’s good to see that in writing that, I was agreeing with the views of Stephen Sedley, the recently–retired judge of the Court of Appeal.

In an article in the London Review of Books: The Goodwin and Giggs Show (which I found via Roy Greenslade’s blog entry about it in the Guardian) he says:

The naming of Goodwin and Giggs is on a different plane from ministerial briefings against judges, inappropriate as these are, because it disrupts the historic equilibrium between the judiciary and the legislature. The media may present themselves as amused spectators, but it is they who have provoked and exploited the breakdown of an element in the democracy they themselves inhabit.

A sentiment with which I wholeheartedly agree. And rather than sort out this perfectly obvious elephant in the room, senior politicians spend their time attacking the judges, rather than the media:

This is why the issues are large. It can be credibly said that the fourth estate is close to being a state within the state, unregulated except to the modest extent that it chooses to regulate itself and alternately feared and pandered to by public figures.

Formal regulation, I’d suggest, is overdue.

Mind you, in the UK at least we have the background of some protection via the right to privacy enshrined via Article 8 of the European Convention on Human Rights. A person whom I follow on twitter re–tweeted this link to an blog post by popstar and new mum Pink, complaining about paparazzi trying to grab photos of her new daughter. At least in the UK and Europe that (following the case brought by JK Rowling for breach of her son’s privacy) is not allowed.

And in related news to do with the media: jury discharged before considering whether Levi Belfield abducted Rachel Cowles because of adverse publicity over his conviction of the murder of Milly Dowler. They couldn’t even wait until verdicts were brought in on all charges. The media simply don’t care about justice, or you — it’s all about the story.

W223: Company Law – got a distinction!

That was unexpected! I got notification yesterday that I’d been awarded a distinction on the Open University law course I did last winter: W223: Company law and practice.

The distinction was an unexpected pleasure as I thought I was only in 2:1 territory — I didn’t think I had quite the grade average necessary across the marked assignments — the Open University generally requires that your classification for a course will be the lower of your achievement in the final exam / end–of–course assignment, and of the average of your marked assignments throughout the course — though I knew I was only a percentage point or two short.

So, lessons learned from this course:

  • Don’t overly concern yourself if you think you’re one or two percentage points short. Don’t use it as an excuse to drop your standards.
  • Take time on end–of–course assignments. Everything you need, factually, is there. What can get you the bonus marks is a matter of looking a little further — research the current state of the law and academic comment about the questions at hand. Incorporate these into your answer, and cite every assertion you make.
  • Make sure your bibliography and references are full and accurate: include every paper you read and found to be relevant, even if you didn’t use it. You never know when something has unconsciously slipped through.
  • And finally, again, take time. Whilst making sure you can submit on time, use the last day for a re-read. Out loud. It’s amazing how many little grammatical slips you can find that way.

I enjoyed this course, and didn’t find it a slog at any point. But have to admit I’m very happy with the result.