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, 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.