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Abuse of power

 

I came across this Court of Appeal case this evening.

 

Director of Legal Aid Casework v the Queen on the application of Sunita Sisangia 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/24.html

It all hinges on whether wrongful arrest is an ‘abuse of power’ and thus covered by the provisions of LASPO as something you can get legal aid to sue for. It is all a bit dry and technical, but where it ends up is the Court of Appeal having a legal geek out about words and phrases that can’t really be tied down to a definition, but you know them when you see them.

I had not realised that things as simple as ‘building’, ‘income’ ‘trade’ ‘invention’ and ‘gaming’ come into that category. And so, we learn today, does ‘abuse of power’

 

[The fact that our tax law can’t define income might explain why Google and Facebook have such meagre taxbills… thank you, I’m here all week. Try the chicken.]

 

  • In my judgment the fact that a definition of “abuse of position or power” of universal application cannot be extracted from the authorities does not mean that the term defined can be ignored. It is equally possible, indeed probable, that Parliament’s intention was that it should be left to the courts to develop what the phrase means. In other areas of the law this is clearly so. For example in the field of taxation Parliament has never attempted to define “income” or “trade”. In the intellectual property world neither Parliament nor the drafters of the European Patent Convention have ever tried to define the word “invention”. As Pumfrey J said in Shoppalotto.com Ltd v Comptroller General of Patents, Designs and Trade Marks [2005] EWHC 2416 (Pat) 396, [2006] RPC 293 at [6]:

 

“A moment’s thought will show that it is not possible to provide an exhaustive definition of “invention”. The Convention does not attempt to interpret the word but provides a list of things which are excluded, whether or not they would be regarded as inventions.”

 

  • Likewise in the case of a “building”. As Byles J said in Stevens v Gourley (1859) 7 CBNS 99:

 

“The imperfection of human language renders it not only difficult, but absolutely impossible, to define the word “building” with any approach to accuracy. One may say of this or that structure, this or that is not a building; but no general definition can be given; and our lexicographers do not attempt it.”

 

  • The natural meaning of the term defined may be its meaning in ordinary discourse, or it may be its meaning as a legal concept. This is illustrated by McCollom v Wrightson [1968] AC 522 where the meaning of “gaming” as a defined term in section 55 of the Betting, Gaming and Lotteries Act 1963 was coloured by the meaning given to the word “gaming” by the common law.
  • The fact that “abuse of position or power” cannot be given a hard-edged definition does not mean that the concept itself is meaningless. A number of judges have, in different contexts, explained what they perceived to be the ingredients of an abuse of power. In R (Puhlhofer) v Hillingdon LBC [1986] AC 484, 518 Lord Brightman (with whom the other Law Lords agreed) said obiter:

 

“The ground upon which the courts will review the exercise of an administrative discretion is abuse of power – e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense – unreasonableness verging on an absurdity.”

 

Given that it is the twentieth anniversary of the film “Trainspotting”, it tickled me that one of the lead authorities on abuse of power happens to be called Begbie

 

 

 

“[76] Abuse of power has become, or is fact becoming the root concept which governs and conditions our general principles of public law. It may be said to be the rationale of the doctrines enshrined in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, of illegality as a ground of challenge, or the requirement of proportionality, and of the court’s insistence on procedural fairness. It informs all three categories of legitimate expectation cases as they have been expounded by this court in R v North and East Devon Health Authority, ex parte Coughlan [2002] 2 WLR 622.

[77] The difficulty, and at once therefore the challenge, in translating this root concept or first principle into hard clear law is to be found in this question, to which the court addressed itself in the Coughlan case: where a breach of a legitimate expectation is established, how may the breach be justified to this court? In the first three categories given in Ex parte Coughlan, the test is limited to the Wednesbury principle. But in the third (where there is a legitimate expectation of a substantive benefit) the court must decide ‘whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power.'”

You wee radge...

You wee radge…

 

The Court of Appeal conclude that you can’t tie down abuse of power to a definition.

 

As I have said it is a flexible and fact-specific concept which may be incapable of definition. We should certainly not try to do so. What we can say is that something more than an intentional tort is necessary before the impugned act becomes an “abuse of power” even if we cannot say precisely what that “something more” is.

 

I might offer this, as an example of abuse of power that is pretty unmistakeable…

 

http://www.communitycare.co.uk/2016/02/03/recommend-youll-never-see-children-social-worker-struck-abuse-power/

 

A social worker who threatened foster carers with the loss of children in their care if they did not describe him as ‘supportive’ has been struck off the register.

A Health and Care Professions Council (HCPC) panel heard the Peterborough social worker believed the foster carers, who cared for the younger two of three siblings, had made a complaint about him.

He also told the birth mother of all three children, cared for by two sets of foster carers, to contact his manager and make a complaint about the foster carers looking after her first child.

Threats

He told her to tell his manager he was a “brilliant social worker”, adding that if she reported him to the police, she would “never see her children again”.

He called the mother on her mobile phone two or three times a week without any professional reason to do so, called her overweight and told her if she lost weight she would “stop having epileptic fits”, the HCPC panel reported

 

Yes, that’s what abuse of power looks like.

 

begbie 2

DFE report on Special Guardianship reports… my report

 

There has been some concern about the increase in the numbers of Special Guardianship Orders made, notably post Re B-S, and whether they are being made because Courts are sure that they represent the best outcome for a child in any particular case or whether they are sometimes ending up as rushed jobs because one can’t rule them out on a “nothing else will do” test.    [As with almost anything in Family Justice, whether you think an increase or decrease in any particular outcome is a good or bad thing depends entirely on your perspective. ]

The DFE called for responses on this  to consider whether there was  a problem and what solutions might be. They have now published their report.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/487243/SGR_Final_Combined_Report.pdf

 

 

 

In summary, the review has found that:

  • The majority of SGOs are made to carers who have an existing relationship with the child and who, with some appropriate support, intend to and will be able to care for the child until 18;
  • There is a significant minority of cases where the protective factors we expect to see in each case – described above – are not in place. In particular, the following issues have been found:
  • Rushed or poor quality assessments of prospective special guardians, for example, where family members come forward late in care proceedings; where there has been inadequate consideration early on of who might be assessed; when assessments have been carried out very quickly to meet court timelines; or when the quality of an initial assessment is challenged, requiring the reassessment of a special guardian.
  • Potentially risky placements being made, for example, where the SGO is awarded with a supervision order (SO) because there remains some doubt about the special guardian’s ability to care for the child long-term. In the Research in Practice case file analysis, almost half of the 51 cases considered had a SO attached to the SGO. This is particularly concerning where the child is not already living with the guardian, or where there is no or little pre-existing relationship. 70% of respondents to the Call for Evidence said that the assessment process for determining whether a prospective special guardian is suitable could be improved.
  • Inadequate support for special guardians, both before placements are finalised, and when needs emerge during the placement, for example, where the special guardian has not received the information or advice to make an informed choice about becoming a special guardian, or where they receive little or inadequate support post order to ensure they can support the child’s needs. 72% of respondents to the Call for Evidence said that advice and support should be provided to children, special guardians and birth parents before, during and after the award of special guardianship.

The review indicates that the challenges identified with SGOs occur at different points in the care process, but an assessment that lacks quality at the start is a major contributor to the issues highlighted above. It is vitally important for the local authority analysis to be robust, supported by strong and intelligent evaluation. SGOs are permanence orders, awarded on the expectation that the child will remain in that placement until he or she is an adult. For this reason, a sound prediction of the child’s long-term welfare in that placement should sit at the heart of the assessment, and form the basis for the final care plan.

 

Next steps

 

 

As set out above, we need to ensure that children living under an SGO are safe, and that the placement gives them the best chance of good outcomes in their life. To be confident of this, children deserve to be assured that there is a robust assessment, that decision making is evidence-based, that the placement is assessed as being likely to last until 18, and that appropriate support will be available. The issues identified by the review suggest that these principles are not consistently followed.

Given this, we intend to:

  • Strengthen the assessment process, to ensure that assessments are more robust and more consistent for all children, and that they are based on the fundamental principle that the person being assessed is capable of caring for the child for the whole of that child’s life to adulthood;
  • Actively consider whether further changes are required to the legal framework that underpins decision making around special guardianship; and
  • Consider what support should be available to children living under special guardianship arrangements

 

 

The assessment process

Immediately, the Government will amend regulations and statutory guidance to require that the local authority report to the court on potential special guardians includes:

  • the capacity of the guardian to care for the child now
  • and until the child is 18
  • the prospective special guardian’s understanding of the child’s current needs and likely future needs, particularly in light of any abuse or neglect the child has previously suffered, and their ability to meet those needs
  • the prospective special guardian’s understanding of any current or future risk posed by the child’s birth parents and their ability to manage this risk
  • an assessment of the strength of the previous and current relationship between the child and the prospective guardian

 

 

 

They then say that they intend to publish further proposals in the New Year

 

The critical things are obviously what precisely is going to go into the Regulations that will be published “immediately”, and very critically whether the additional demands on the authors of the report will be counterbalanced by a statutory time period in which they should be carried out.

I’ve seen plans and press releases from Central Government before that don’t quite materialise into actual nuts and bolts of law.  For example, Simon Hughes spoke all around the country and got reported in the national press relentlessly that the Government would be introducing proposals to give all under 10s a ‘voice’ in court proceedings about them.  How this would differ from the voice that they currently have through the Children’s Guardian was never explained. Some people read it thinking that all children in all cases would attend a Court hearing always, some read it that some children would be allowed if they asked, some that children would all meet the Judge but not come into Court, some that children would be able to write a letter for the Judge (that everyone else would read? that nobody else would read? that some people would read?)

But no matter how often I searched and asked, nothing concrete as to what those proposals would actually be ever emerged.

And it now  seems to have been kicked into the long grass, which is so handy for those in Government. If someone ever went into the long grass behind Parliament armed with a scythe  (insert your own Aiden Turner picture here if you wish) they’d turn up all manner of exciting things.

 

Humblebrag thanks

 

The blog just clocked up a quarter of a million visitors for the year , which is about a fifth more than last year

[And if

https://www.judiciary.gov.uk/wp-content/uploads/2015/11/hm_-attorney_general_v_conde_nast_publications_limited_final.pdf

is accurate,  I get about half as many visitors a month as a copy of GQ magazine sells in a month. So if you are Rolex, Aston-Martin or Armani and you want to place some adverts, I’m willing to think about it ]

Given that when I started it in February 2012, I wasn’t sure whether anyone would ever read it (and for about 2 months that was a fairly accurate prediction), and whether I would run out of stuff to say very quickly  (nearly 800 posts later, it turns out not), that’s a very pleasant surprise.

 

Thank you very much to everyone who has come to the website, I hope you’ve found something of use, or something of interest, something that has helped or something that has made you think. Even if it made you think about how much you disagree with the decision I’ve been writing about, or my analysis of it.

 

I’ve just been reading Nick Bostrom’s book “Superintelligence”*   and he says something lovely  in his acknowledgements section, which I will gladly steal.  Find “book”, Replace “blog”…

 

“Many of the points made in this book are probably wrong”

 

Thank you for visiting. Please, come again.

 

 

(*which is great. Somewhat terrifying, but great)

Court in a trap

 

This is not at all Christmassy, but it is one of my favourite little law stories.  It involves the principle of a convertible argument  – an argument that is very strong, but can be reversed and is just as strong for the other side.

 

It involves Ancient Greece, and a man named Protagoras (not the triangle guy). Protagoras was a philosopher but also a lawyer, and he made part of his living by teaching students in law.

A young man, Euathlus, approached Protagoras and asked Protagoras to teach him law.  However, Euathlus had no money to pay for this tuition.  They agreed that Euathlus should pay Protagoras when Euathlus won his first case in Court.

The training was completed, and Euathlus was giving clients advice but not appearing in Court. Time passed and it became apparent to Protagoras that Euathlus was never intending to take a case on in Court, and so he would never be paid.

 

Protagoras went to Court himself, saying that Euathlus should be ordered to pay him. His argument was short and beautiful  (one could even say “sophisticated”, given that Protagoras was a Sophist)

“Let me tell you, most foolish of youths, that in either event you will have to pay what I am demanding, whether judgment be pronounced for or against you. For if the case goes against you, the money will be due me in accordance with the verdict, because I have won; but if the decision be in your favour, the money will be due me according to our contract, since you will have won a case.”

 

Euathlus had learned from the best though, and replied

“I might have met this sophism of yours, tricky as it is, by not pleading my own cause but employing another as my advocate. But I take greater satisfaction in a victory in which  I defeat you, not only in the suit, but also in this argument of yours. So let me tell you in turn, wisest of masters, that in either event I shall not have to pay what you demand, whether judgment be pronounced for or against me. For if the jurors decide in my favour, according to their verdict nothing will be due you, because I have won; but if they give judgment against me, by the terms of our contract I shall owe you nothing, because I have not won a case.”

 

 

 

The jurors simply adjourned the decision indefinitely, probably because they recognised a Paradox when they saw one….

 

[Personally, I would make Euathlus pay, but it is damn difficult to construct a judgment to make it unappealable]

 

Appeal due to ‘incompetent’ representation (appeal refused)

 

I think we’re all familiar from American movies and TV shows with the concept that you can overturn the result of a legal case if your representation was so poor that it resulted in a mistrial. It’s actually very rare in England. This is a criminal case where the person convicted of his wife’s murder sought to appeal on exactly that basis.

I’d best make it clear from the outset that the Court of Appeal decided that the representation was not sufficiently incompetent to make the conviction unsafe, but they did have quite a lot to say about it and suggested that the Bar Standards Board take a look at the case. I will absolutely stress that as a result, the Court of Appeal have made NO findings about Mr Wolkind QC’s conduct or competency, and the Bar Standards Board have not even considered the case yet. So I am simply reporting what was described in the case.

 

R v Ekaireb 2015

 

http://www.bailii.org/ew/cases/EWCA/Crim/2015/1936.html

 

Mr Ekaireb was convicted of his wife’s murder in 2006. His wife’s body was never found, nor did anyone find blood or a weapon. There were two possible accounts – either his wife left him extremely suddenly and nobody has ever seen her again, or he murdered her.  That’s a difficult murder trial to run, because it is going to be based on looking at every scrap of circumstantial evidence and building on it if you are the Prosecution, or knocking it down if you are the Defence.

 

The legal test on an appeal being allowed due to incompetence of representation is :-

 

  • It was agreed that the law relating to the basis upon which an appeal against conviction grounded upon the incompetence of the advocate should be considered was correctly stated by Buxton LJ in R v Day [2003] EWCA Crim 1060 at paragraph 15:

 

“While incompetent representation is always to be deplored; is an understandable source of justified complaint by litigants and their families; and may expose the lawyers concerned to professional sanctions; it cannot in itself form a ground of appeal or a reason why a conviction should be found to be unsafe. We accept that, following the decision of this court in Thakrar [2001] EWCA Crim 1096, the test is indeed the single test of safety, and that the court no longer has to concern itself with intermediate questions such as whether the advocacy has been flagrantly incompetent. But in order to establish lack of safety in an incompetence case the appellant has to go beyond the incompetence and show that the incompetence led to identifiable errors or irregularities in the trial, which themselves rendered the process unfair or unsafe.”

 

  • At paragraph 52 of the decision of this court in R v Bolivar & Lee [2003] EWCA Crim 1167 the then Vice President, Rose LJ, had expressed the test:

 

“Professionalism requires that a barrister should do his job properly, disregarding such matters. Of course, if his performance on behalf of a client is affected by such matters, different considerations apply. Hence, in our judgment, the test to be applied in relation to a barrister’s conduct, is: was it Wednesbury unreasonable and such as to affect the fairness of the trial?”

Both counsel submitted that the formulation was not apposite to the present case because that concerned advocacy affected by the personal circumstances of the barrister. We agree. In any event, the formulation by Buxton LJ is the more modern formulation. It is simpler to apply; it avoids consideration of how Wednesbury unreasonableness is to be applied to the conduct of an advocate; and it is more in accord with the formulation approved in a judgment of the Privy Council in Sankar v. State of Trinidad and Tobago [1995] 1 W.L.R. 194 at 200F–G.

 

 

It isn’t relevant that the client wasn’t impressed, or that he didn’t like the tactical decisions or style, or that another barrister might have done better – the performance has to be so flagrantly incompetent that it made the process unsafe , because of identifiable errors or irregularities in the trial.  As far as I’m aware, there isn’t a reported case in care proceedings of a decision being overturned on an application of incompetence of representation, but I’m fairly sure that the Court would make use of this high test if one were made.

 

It certainly wasn’t a great start for Mr Wolkind QC, who had been selected by the client as a result of reading his website http://www.topcriminalqc.co.uk/ rather than through chambers website.

 

  • The trial was originally scheduled to begin on 7/8 October 2013, but then moved back to 21 October 2013. On 10 October 2013 Mr Wolkind informed his solicitor and the appellant that the first conference would be on 14 October 2013. The conference was brought forward as a result of the reaction of the appellant and his solicitors. In an e-mail of 9 October 2013, Mr Kaye reported that he was very concerned that Mr Wolkind was, “far from up to speed and was not concerned about that being obvious”. There was nothing that called that assessment by an experienced solicitor into question.

 

 

 

What were the alleged irregularities here?

 

 

  • It was the submission made on behalf of the appellant that where the prosecution case was based entirely on circumstantial evidence, the defence depended on competent cross-examination of the witnesses called by the prosecution, competent advice on whether the defendant should give evidence, competent examination of the defendant and a very carefully prepared speech for the defence. We are satisfied that Mr Wolkind told Mr Skelley on a number of occasions that it was a closing speech case.
  • It was not suggested that Mr Wolkind was incompetent in the following respects:

 

i) His advice on tactics.

ii) His advice on calling witnesses, including the appellant.

iii) His challenge to the admissibility of evidence.

iv) His cross-examination of the witnesses called by the prosecution.

v) His preparation for calling the appellant and his examination in chief of the appellant.

vi) His agreement to the extensive agreed facts which were put before the jury and to the witness statements which were read to the jury.

 

  • The case for the appellant presented by Mr Orlando Pownall QC was that Mr Wolkind’s incompetence related to the final speech for the defence and fell into two categories:

 

i) a ‘severe criticism of style’ which itself amounted to incompetent representation in that he:

a) failed to present the defence in an appropriate and focused manner;

b) often resorted to patronising the jury, conducting personal attacks on counsel for the prosecution. He indulged in a number of inappropriate attempts at humour which were bound to alienate the jury;

ii) a failure to confront the matters advanced by the prosecution by displaying (as had been reflected in submissions of no case to answer and in his opening submissions), a reluctance fully to engage with the issues before the jury in stark contrast to the detailed way in which the prosecution had advanced the case.

It was contended that Mr Wolkind had made the speech he did as the result of his failure before and during the trial to prepare himself properly for the trial and his lack of engagement in the trial and his doing of other work during the period he should have devoted himself to the defence of the appellant. He had substituted for proper preparation a speech that failed to rebut the case for the prosecution and relied instead on inappropriate diversions.

 

You can perhaps see that in a murder trial based on circumstantial evidence, that if the silk keeps telling the junior, solicitor and client that it is a “closing speech case” then you are probably leading them to expect that your closing speech is going to be great. In fact, the client sacked the silk after the closing speech was made (before the jury had retired to consider the case). It’s probably also not a great plan to turn up late on the day that you are going to be giving that closing speech. Also probably not great to have got other work in your diary on the day you are supposed to be delivering said speech – it sort of gives an impression that you are keen to get it done and dusted.

 

 

  • Before turning to the closing speech, it is necessary to refer to Mr Wolkind’s conduct during the summing up. Very little of the summing up was delivered on Friday 13 December 2013, as a juror became ill. When the judge resumed on Monday 16 December 2013, Mr Wolkind arrived part of the way through the morning and then left during the course of the afternoon. The appellant decided in those circumstances to terminate his instructions to Mr Wolkind and to continue with Mr Skelley alone. Mr Wolkind told us that he had been late because of a delay in a video conference he had arranged, according to his diary, for 10:00 for another case, where the defendant was held in prison. His diary showed that at 15:00 he had a meeting in another case. The consequence of Mr Wolkind’s dismissal was that he was not present on the following day when there was an exchange between Mr Altman and the judge about the answers of the defence to the detailed case made by the prosecution. We refer to this at paragraph 48 below.

 

 

 

 

The speech itself (and gosh, I wish they’d printed it in full). Mr Skelley is the entirely blameless junior (who had sent very detailed notes of suggestions for the speech on detailed points)

 

(d) An analysis of the speech

 

  • Mr Altman QC who appeared on the appeal for the prosecution helpfully provided us with a detailed analysis of Mr Wolkind’s closing speech. From that analysis and our detailed consideration of the closing speech, the following emerges:

 

i) There were six themes of criticism of the prosecution case that formed the basis of Mr Wolkind’s speech: (i) “random attacks”, (ii) “speculation”, (iii) “pet theories”, (iv) “prejudice”, (v) “distortion” and (vi) “mistakes”.

ii) The speech was developed round these themes. All the points that had been put forward by Mr Skelley in the three documents to which we have referred, were incorporated, sometimes with specific attribution to Mr Skelley, but there was little more.

 

  • We have asked ourselves the question, therefore, whether the speech can be described having reached a level of incompetence that called into question the safety of the conviction or the fairness of the trial. We cannot so describe it. Although it will be for others to consider wider issues, it was a speech that covered the points and it had a structure, however ill-judged the themes and the structure might have been. We accept as amply justified the criticism made by Mr Pownall that it was ill-judged, patronising and contained inappropriate attempts at humour. It also contained observations about prosecuting counsel which, as Mr Skelley told us, were completely unprofessional; no advocate should have put these observations into a speech, as we shall observe at paragraphs 59 and following below. However it did not reach a level of incompetence that called into question the fairness of the trial or safety of the conviction.
  • As we have reached that view, it would not be appropriate for us to make more general findings in relation to Mr Wolkind’s lack of preparation and conduct of the case. That must be a matter for the Bar Standards Board to which we direct the matter be referred.

 

 

 

 

The Court of Appeal were NOT satisfied that the case met the test for saying that the conviction was unsafe as a result of failures or irregularities in the process, but did, as I outlined at the beginning make some comments, set out below.

 

Concluding directions observations

(a) Websites

 

  • Our attention was drawn to Mr Wolkind’s personal website. We were surprised at its content and tone. However whether it is within the proper bounds of professional conduct for a member of the bar, particularly one who has had since 1999 the status of being one of Her Majesty’s Counsel, is a matter which we direct be referred to the Bar Standards Board for their consideration.

 

(b) Carrying out other work

 

  • We have had to make some express findings in relation to other work that Mr Wolkind was carrying out during this very complex murder trial. The fact that Mr Wolkind was doing so plainly caused the appellant very considerable concern and led to his dismissal of Mr Wolkind. However, it would not be right for us to make any observations. The terms upon which any barrister, particularly one of Her Majesty’s counsel, is free to engage on other work during the conduct of a case is a matter for the Bar Standards Board, subject to an overriding duty to the court in respect of the case before the court. We therefore direct that general issue be referred to the Bar Standards Board for their consideration.

 

(c) Defence closing speeches

 

  • Unsurprisingly we were not referred to any decided case in which an incompetent defence speech has provided the grounds for a successful appeal. As was demonstrated in Farooqi the trial judge has the responsibility and ample scope to ensure that a defendant’s case is accurately before the jury. That task may involve correcting or amplifying a closing speech. Should that prove impossible it may, in an extreme case, be necessary to discharge the jury. In the present case no such criticism has or can be made.

 

(d) Personal criticism of opposing advocates in addresses to the jury

 

  • Finally, there is one feature of the conduct of this case which judges must ensure ceases immediately and not be repeated in any case. That conduct is making in an address to the jury personal criticism of opposing advocates in contradistinction to criticism of the prosecution case.
  • We were told that the practice of making personal criticism of prosecution advocates has become a feature of some addresses to the jury made by defence advocates. In this case the personal criticism of Mr Altman and Mr Little by Mr Wolkind should not have been made in his addresses to the jury.
  • If any advocate has a criticism of the personal conduct of an opposing advocate that is a matter that should be raised before the judge who will deal with it then and there, though, in what we hope would be the rarest of circumstances, it could be referred to the professional disciplinary body.
  • The conduct of a trial before a jury requires proper and professional conduct by all advocates in speeches to the jury. As any personal criticism of the conduct of an opposing advocate is a matter for the judge, it can form no proper part of an address to a jury. The regrettable departure from proper standards of advocacy by making personal criticisms of advocates of an opposing party in an address to the jury must therefore cease. No court will tolerate its continuance.

 

Lawyers who use hallucinogenic drugs – should we Panda to them?

 

 

Sorry, it continues to be a slow law December.  This came to my attention via http://www.loweringthebar.net  – as that website reports on chiefly American law weirdness he has so much material that he was able to throw this one away as a footnote in a round-up.  With the paucity of good stuff coming out of Bailii this month, I’m happy to spin an entire piece out of it.

 

‘I thought woman in bed was a giant panda,’ says homeless ex-lawyer dressed in fishnets and G-string who crept into bedroom

 

That’s the headline of the story in the Irish Independent. And the story below does not really disappoint.

 

A former lawyer charged with offences when he was found in a stranger’s house  (in Bayswater, London – not an area known for its dense population of Giant Pandas), when he was wearing fishnets and a purple g-string; deployed as his defence that he was so high on drugs at the time that he believed the woman was a giant panda and that he had just been looking for somewhere to fall asleep.

 

In his subsequent police interview, he claimed that he went into the block of flats to get a bed for the night.

‘I honestly didn’t see a woman on the bed, I didn’t see any children in the bed, I honestly thought it was a big panda bear in the bed, that’s what it looked like to me.

‘I had taken some drugs but I am pretty certain that’s what I saw, I didn’t see any woman, I didn’t see any kids… were they under the panda?’

 

The jury actually cleared him at the trial at Southwark Crown Court after just thirty minutes of deliberation. I can only think that it was so quick because all of the jurors were desperate to get to the pub and tell their mates about the day they’d just had.

 

In the event that the Judge’s summing up is available, I really would rather like to see it.

 

I am aware, of course, of a historical precedent for a man taking substances and believing himself to be the Lizard King , but Panda King is new to me.

 

 

As the spirit of Jim Morrison, even I have to say that this guy was taking too much

As the spirit of Jim Morrison, even I have to say that this guy was taking too much

 

[Frankly, the Spirit of Hunter S Thompson might be telling this guy that he needs to take a break and cut down. As a rule of thumb, if your substance use has got to a point where Morrison and Hunter S Thompson could be considered voices of reason, things are out of hand. ]

 

http://www.independent.ie/world-news/europe/i-thought-woman-in-bed-was-a-giant-panda-says-homeless-exlawyer-dressed-in-fishnets-and-gstring-who-crept-into-bedroom-34252199.html

 

 

If that was up your street, find out why a Turkish Court has authorised experts on Lord of the Rings to testify in a criminal trial about the character Gollum here

http://www.loweringthebar.net/2015/12/gollum-experts.html

 

 

 

Thursday daftness – the picture round

 

Can you guess the Judge from the picture of a celebrity with a similar-ish name?

 

 

Many of the Judges are regulars in these blogs for their excellent and interesting judgments and no offence of any kind is intended. All of the Judges in question are far more photogenic than these images  (well, possibly not the first one)

 

If you are upset that I’ve missed your favourite out, it is because my mind went numb after looking at pictures for number 9….  And heck, if you can find a celebrity soundalike for Mrs Justice Pauffley, good luck to you.

 

 

  1.   celeb 1

 

 

 

 

2.   celeb2

 

 

3.

What? This isn't a celebrity!!! Outrage.

What? This isn’t a celebrity!!! Outrage.

 

 

4. celeb4

 

 

5.

This one is a bit obscure, so the logos behind are a clue...

This one is a bit obscure, so the logos behind are a clue…

 

6.

Cham-on!

Cham-on!

 

7. celeb7

 

8.

Only one of them. And no, I don't know which is which...

Only one of them. And no, I don’t know which is which…

 

9.

Yes reader, for your benefit, I looked at Google images of this woman... this is the only good photo of her

Yes reader, for your benefit, I looked at Google images of this woman… this is the only good photo of her

 

 

I hope I can remember all of the answers tomorrow….  If anyone is guessing, don’t do it in the comments in case anyone else is trying.

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