RSS Feed

Category Archives: Uncategorized

Locked door mystery

 

 

As with any of my articles, I write purely in my own capacity as a human being rather than as a representative of anyone, and this is particularly true in this case. I don’t speak for anyone other than myself.

 

 

I have become aware recently of the move in Courts (not all of them, but a worrying number) to restrict the public’s access to Public Counters.

 

What happens at these Public Counters? (or what used to?)

 

People would come in, people who had been served with court papers and were frightened or confused and didn’t know what to do and they would be given help and advice (not legal advice, but they would be pointed to where to get that advice from), people would come in and hand in the court paperwork they had filled in – and double-check that they hadn’t made a mistake with it that might otherwise delay things by weeks, people would come in to get leaflets and guidance, people would come in to explain to the Court that the hearing date that they’d just received in the post wasn’t possible for one reason or another, people would come in to issue their applications, to pay their fees, to hand in the raft of documentary evidence that would prove that they didn’t need a fee.

 

Those people can sometimes be hesitant, tentative, confused, dumbfounded, bolshy, argumentative, difficult, time-consuming, obnoxious or terrified. Sometimes all at once.  Sometimes they come to the Public Counter in dribs and drabs, sometimes as battalions.

 

Since LASPO was introduced, a lot of these people who would have had lawyers to help them resolve these concerns and fears and worries and to answer their questions and to give them the right forms, are now doing it entirely on their own. They have walked into a domain that they don’t understand, with no guide, and the only thing they can really do is ask the locals how people do things around here.

 

Which is why, of course, access to the Public Counters, becomes even more important – it is the only way that a person who is not legally trained and not able to spend an age on google trying to find things when they have no clue what they are looking for, can find out how to make a start on dealing with the Courts.

 

That in turn, placed a higher demand on Court staff – and I’m sure at the same time as this due to austerity measures Court staff and budgets were cut leaving them all having to do more with less.

 

And that is probably why so many Public Counters moved from being open from 10.00 am to 4.00pm to being open for half a day, to being open for only prior appointments and urgent cases, to this current situation where you can walk into certain Courts in this country and see a door that says “Public Counter” on it, but the door is locked.

 

I don’t, personally, feel very happy about that. I don’t, personally, think that this is a very good thing at all. I think, personally, that this is a poor way to treat litigants in person who now have nobody to help them penetrate the thickets of complexity and jargon and bureaucracy that faces anyone trying to conduct Court proceedings for themselves. I can understand the thinking behind it – to let the hard-pressed Court staff get on, uninterrupted, with the huge volume of work they have to do and deter members of the public from coming in and asking questions and creating additional work. I understand it, but I don’t like it.

 

That made me turn to the recent High Court decision on the Lord Chancellor’s introduction of a “Residency” test to get legal aid. This was a statutory instrument, created under LASPO powers (or rather, it purported to be, but wasn’t), that would take the cases where legal aid WAS still available, and make them available only to people who could show that they had lived in the UK for twelve months.

 

 

The Queen on the Application of the Public Law Project v the Secretary of State for Justice 2014

 

It is a great judgment, because it upholds the rule of law, upholds rights and gives some very real concrete examples of people and cases who wouldn’t get legal aid if the “Residency” test came into being.  It completely rejects the statutory instrument as being lawful and makes it plain that there was no power for the Lord Chancellor to introduce these measures, which were purely discriminatory.

 

 

http://www.judiciary.gov.uk/wp-content/uploads/2014/07/plp-v-ssj-and-other.pdf

 

 

It is also worth reading for this bit, which might well be the rudest that any Court has ever been to a sitting Lord Chancellor, and rightly so.

 

It is and was beyond question that the introduction of such a test is discriminatory. The test is more likely to be satisfied by a United Kingdom national than a national of another member state (a reference to the habitual residence test in Patmalneice v SSWP [2011] 1 WLR 783 at paragraph 35). The Government has accepted that it will be “easier for UK citizens to satisfy than other nationals” and that it “falls within the ground of national origin as specified in Article 14”. Indeed, that is its declared purpose. “We have made it absolutely clear”, said the Parliamentary Under-Secretary of State, “that for the residence test it is important that they are our people – that they have some link to this country” (18 March 2014). That is the justification for the test that is proffered, that it is designed to restrict legal assistance to those with a closer connection to the United Kingdom than foreigners. The Lord Chancellor has said as much to the Joint Committee on Human Rights: “I am treating people differently because they are from this country and established in this country or they are not” (26 November 2013).

 

Unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the court considers its judgment, and unmindful of the independent advocate’s appreciation that it is usually more persuasive to attempt to kick the ball than your opponent’s shins, the Lord Chancellor has reiterated the rationale behind the introduction of the residence test, in the apparent belief that the Parliamentary Under-Secretary had not been as clear as he thought he had been :

 

“Most right-minded people think it’s wrong that overseas nationals should ever have been able to use our legal aid fund anyway, and when it comes to challenging the action of our troops feelings are particularly strong…We are pushing ahead with proposals which would stop this kind of action and limit legal aid to those who are resident in the UK, and have been for at least a year. We have made some exceptions for certain cases involving particularly vulnerable people, such as refugees who arrive in the UK fleeing persecution elsewhere. But why should you pay the legal bill of people who have never even been to Britain?

And yes, you’ve guessed it. Another group of Left-wing lawyers has taken us to court to try to stop the proposals” (Daily Telegraph 20 April 2014, sixteen days after the argument had been concluded).

 

 

 

But the bit that I was particularly interested in, given the locked door that I have to walk past every time I go to Court was this paragraph

 

 

56.The constitutional right of access to the courts was further considered by the Court of Appeal in R (Children’s Rights Alliance for England) v Secretary of State for Justice [2013] 1 WLR 3667. Again, the case is not concerned with discrimination. It decided that the obligation to provide a right of access to the courts did not include an obligation to find and provide information as to legal rights to those with potential claims. The constitutional duty was described by the Court as a duty not to “place obstacles in the way of access to justice” (at paragraph 39). That description of the nature of the duty, that it is a duty not to impede access to the court, is binding on this court

 

The State has a duty not to place obstacles in the way of access to justice. Last time I checked, a locked door was an obstacle.

 

Those Courts that have locked the door to the Public Counter have a sort of triage system, whereby a member of the public can get in by prior appointment, or by convincing a member of the Security staff who man the doors (and search people for knives, alcohol or drugs) that they should be let in. If that person doesn’t happen to WANT to discuss their personal and private business with a security guard, or in an open waiting room where there might be people coming in at any time or queuing to undergo their searches, aren’t going to get in.

 

Might THAT be Her Majesty’s Court Service placing an obstacle in the way of access to justice?

 

Bearing in mind that one of the reasons to go to the Court Public Counter is to get your application form to start your case, so that you can get justice, or to deliver your form to court staff and make sure that there is nothing in the form that you have filled out wrong because you didn’t understand it.

 

If Barclays Bank (other banks are available), decided that during office hours they were going to keep their Public Counter behind a locked door, I’d think that was pretty awful customer service. But at least Barclays customers could vote with their feet and go elsewhere. The people wanting to use the Courts Public Counters don’t have that luxury.

 

I am aware that there are those in the Ministry of Justice floating the ideas of Courts becoming ‘information hubs’ where the public can go to find out in one place everything they need to know to resolve their disputes, probably by resolving them without ever going before a Judge. I wonder if those information hubs will have locked doors too?

“You’re going to fight THAT?”

I have had on my mind recently the old-fashioned notion of Trial by Combat, where one could elect a champion to fight on your behalf, and if your champion won, then you would win your case. Trial by combat is no longer lawful in this country, despite the noble efforts of Mr Leon Humphreys, who sought to persuade Magistrates that rather than pay a £25 fine for a trivial motoring offence, he would instead do battle with a champion nominated by the DVLA.

 

But of course, our British legal system, given that it is adversarial, does have an element of trial by combat to it. Both sides select their champion (or advocate), they clash swords or rather words and at the end a victor is declared.

That raises a difficult philosophical issue about justice – when the Judge makes their decision are they setting aside the performance of the respective champions and just getting to the pure Truth of the case, or could the outcome stand or fall on the selection of the Champion? If one swapped over the briefs, might the outcome be different?

It seems that in a fair judicial system, it ought not to matter very much who speaks on your behalf – the Truth should out, and the Judge get to the bottom of what really happened. But very often in care proceedings we are trying to sum up years and years of the lives of several people and reduce them down to 350 pages, and then questions are asked about those pages over three or four days.  There must inevitably be a degree to which the Judge is guided by what it is they are shown by the advocates – what is drawn out and brought to life, and those aspects that are not dwindle in significance.  Of course, the Court is not a rubber stamp, and will have read into the case and picked up on details and issues that neither advocate touches on, which is why they are allowed to ask their own questions.

 

It is really difficult to tell how much of a judicial decision is that the Truth is there and is laid bare in a judgment (just as Pythagorus’ Theorum was true before he set it out and would remain true if he had never found it and someone else had), or whether the questions are more akin to those history essays that ask you to set out the causes of World War I and there’s a range of possible Truths, possible answers – some more vivid and likely than others.  Is the Truth that we find in judgments a Universal Truth, or a particular version of the Truth?

 

I had the pleasure, when I was training, to see a lot of advocacy – this was in the times when lawyers used to ‘sit behind counsel’ and watch the whole final hearing and take a note – that exposed me to a huge range of advocacy, and I can tell you, when you see someone really shine at it, it is a thing of beauty.  I have seen Silks get brain surgeons to eat out of the palms of their hand, seen confessions gently extracted from a witness who had no idea they were going anywhere near such a thing, heard questions asked that make everyone in the court room want to mouth, in the style of Dan Maskell, tennis commentator “Oh, I say”. I’ve also seen the flip side, when blind alleys were stumbled into, points not taken, the issues not grasped, witnesses pushing the advocate around.

 

It isn’t always even that there are good advocates and bad advocates (though there are such creatures) – sometimes it can be good days and bad days, sometimes even that Sir Ronald Rutt is a good match for a very forensic case with lots of fine detail and voluminous notes to pore over and draw the witness into, but not such a good match for a combative witness like Mr Albert Haddock.

 

Sometimes I have been on the wrong side of an opponent who really sang, and for whom the Court of Appeal’s delicious phrase “The purifying ordeal of cross-examination” was particularly apposite. It can be a bruising experience watching what appeared to be a good case on paper become merely confetti.

 

Those are some idle musings of mine, which serve chiefly as an excuse to crowbar in a photograph of the Red Viper of Dorne, who I think would have made rather a good barrister.

 

Oberyn Martell

 

 

 

 

 

You know what a pig IS, don’t you? If not, I’m afraid there is a great deal of tedious spadework ahead of us

 

Not much juicy law about this week, so a diversion to America, courtesy of Lowering the Bar.

 

This is an extract from some genuine cross-examination, which ends up being so good that the New York Times actually made a video re-enacting it  (by way of context, the person being cross-examined here has made use of a law allowing the State to charge 2 cents a page for PHOTOCOPYING to charge 2 cents a page for material copied onto a computer disc, which can be done in 5 seconds with the push of a single button, and is, some might say, rather a different action to the act of photocopying, so the plaintiff’s lawyer is trying to get the deponent to admit that he understands what the nature of photocopying IS, and the deponent (witness) is trying to avoid saying anything to that effect)

 

http://www.loweringthebar.net/2014/04/what-is-a-photocopier.html

 

This is my favourite exchange

 

Plaintiffs’ Lawyer: During your tenure in the computer department at the Recorder’s office, has the Recorder’s office had photocopying machines?

Deponent’s Lawyer: Objection.

PL: Any photocopying machine?

Deponent: When you say “photocopying machine,” what do you mean?

PL: Let me be — let me make sure I understand your question. You don’t have an understanding of what a photocopying machine is?

D: No. I want to make sure that I answer your question correctly….When you say “photocopying machine,” what do you mean?

PL: Let me be clear. The term “photocopying machine” is so ambiguous that you can’t picture in your mind what a photocopying machine is in an office setting?

D: I just want to make sure I answer your question correctly.

PL: Well, we’ll find out. If you can say yes or no, I can do follow-ups, but it seems — if you really don’t know in an office setting what a photocopying machine is, I’d like the Ohio Supreme Court to hear you say so.

D: I just want to make sure I answer your question correctly.

DL: There’s different types of photocopiers, Dave.

 

….

D: I’m sorry. I didn’t know what that meant. I understand that there are photocopying machines, and there are different types of them just like –

PL: Are there any in the Recorder’s office?

D: — there are different cars. Some of them run under gas power, some of them under electric power, and I’m asking if you could help me out by explaining what you mean by “photocopying machines” –-

PL: That’s a great point.

D: — instead of trying to make me feel stupid.

PL: If you feel stupid, it’s not because I’m making you feel that way.

DL: Objection

 

 

 

 

optimistic litigation

You might, by now, have heard of Mr Purisma, an unfortunate fellow who got bitten by a dog on a bus, and sued as a result.  He included a variety of other grievances in his lawsuit, including that he was routinely overcharged for his coffee at an airport and that Chinese tourists took photographs of him.

What makes it newsworthy is the value he sets on his claim. Two thousand undecillion dollars.  If, like me, you are thinking that this is the sort of number that some six year old invented “A gabillion-zillion-million-bajillion” then you are wrong.  The amount, in dollars of his claim is $2,000,000,000, 000,000,000,000,000,000,000,000,000

I didn’t come across this claim on the legal blogs, though it has hit a few now (damn you, other people writing on something I’d hoped to write about), but on the uber geek site xkcd.  And I’ve been wanting to have a chance to plug xkcd for ages now, and this seemed like a good opportunity.

 

One thing that Randall Munro, the creator of xkcd, does every week, is take a ludicrously out there question and apply real life science and maths to it – in the past he has explained what would happen if a baseball pitcher could throw a ball at the speed of light (which is mind-boggling), whether you could make something take off and fly by firing sufficient machine guns down at the ground, how many people a T-Rex would have to eat a day to survive, and dozens of others.

 

On this one, Randall ignores whether the lawsuit is plausible and whether the quantum is reasonable, in favour of just working out if there is currently that much money in the world (no), and if there would ever be (no) and if it could ever be produced before all the stars in the universe go out (no), or whether if you melted down the world and sold it to aliens for scrap that would pay for the compensation (no) but he does this in a beautiful and stylish way that I can only commend to you all

By weight, the single most valuable thing that’s been bought and sold on an open market is probably the Treskilling Yellow postage stamp. There’s only one known copy of it, and in 2010 it sold for $2,300,000. That works out to about $30 billion per kilogram of stamps. If the Earth’s weight were entirely postage stamps, it would still not be enough to pay off Au Bon Pain’s potential debt.[7]

 

Culminating in working out that if the respondent hired the most expensive lawyer on earth [who charges apparently $1,800 per hour], and every single planet so far discovered in the universe was populated entirely by clones of that lawyer, and the respondent employed them ALL, the costs would still be dwarfed by the lawsuit, and it would be worth fighting the case.

 

http://what-if.xkcd.com/96/

 

My open submission to become Chief Football writer for the Telegraph

 

 

West Midlands in Rapture as Simon Gerrard lifts the Premiership Cup for Liverpool

 

After nine long years, the West Midlands was ready for a party and they certainly got one, as Liverpool clinched the Premiership Cup, causing all fans in the area to rejoice and sing at the top of their voices. Simon Gerrard, their captain, known as “Simey Gee”,  lifted the trophy aloft, saying that “This one is for all the Yam-Yams who have supported this club for so long”

Liverpool, owned by the Russian billionaire, Roman Abramovich, finally triumphed in the Premiership Cup, beating Newcastle 2-1 whilst their rivals West Ham succumbed to a 2-0 defeat to Manchester City.

 

How about it? I think I come up to the rigorous standards of accuracy, fact-checking and in-depth knowledge of my subject that we have come to expect.

 

http://www.telegraph.co.uk/news/uknews/law-and-order/10820105/Journalists-check-facts-that-judges-dont.html

 

 

[There are miscarriages of justice in family cases, there are bad social workers, there are mistakes made, there are people to fight for, there are wrongs to be remedied. I'll give two names that are in the public domain and where you can see from the judgments that mistakes were made and that families went through misery as a result - Alas Al-Wray and Musa.  But nobody is done any favours when the basic facts are misreported so badly]

 

I’ll borrow from Lucy Reed, on the code of conduct for journalists

 

The National Union of Journalists Code of Conduct says :

A journalist:

  1. At all times upholds and defends the principle of media freedom, the right of freedom of expression and the right of the public to be informed.
  2. Strives to ensure that information disseminated is honestly conveyed, accurate and fair.
  3. Does her/his utmost to correct harmful inaccuracies.
  4. Differentiates between fact and opinion.
  5. Obtains material by honest, straightforward and open means, with the exception of investigations that are both overwhelmingly in the public interest and which involve evidence that cannot be obtained by straightforward means.
  6. Does nothing to intrude into anybody’s private life, grief or distress unless justified by overriding consideration of the public interest.
  7. Protects the identity of sources who supply information in confidence and material gathered in the course of her/his work.
  8. Resists threats or any other inducements to influence, distort or suppress information and takes no unfair personal advantage of information gained in the course of her/his duties before the information is public knowledge.
  9. Produces no material likely to lead to hatred or discrimination on the grounds of a person’s age, gender, race, colour, creed, legal status, disability, marital status, or sexual orientation.
  10. Does not by way of statement, voice or appearance endorse by advertisement any commercial product or service save for the promotion of her/his own work or of the medium by which she/he is employed.
  11. A journalist shall normally seek the consent of an appropriate adult when interviewing or photographing a child for a story about her/his welfare.
  12. Avoids plagiarism. 

 

[I've broken point 12 there...]

 

Perhaps Mr Booker and his editor honestly think that his reporting on the Italian C-section case, to take just one example, really follows the spirit of that code. Perhaps I missed the correction piece that would seem to be desirable under point 3 when the facts of the case emerged.

Presidential press conference

 

There’s quite a lot in here, and as we know, speeches and views and opinions seem to have a habit of making their way into judgments, so it might be an advance insight.

http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/munby-press-conference-29042014.pdf

 

The one that has already made the news is the President suggesting that consideration be given to taking divorce (as in the dissolution of the marriage, not the financial issues) out of the hands of judges and giving it to Registrars. That one needs a post all on its own (probably tomorrow) – I tend to agree with quite a lot of what he says on this, and the need for proper remedies for people who are not married but have had long term relationships / periods of cohabitation.

 

Here are the other big talking points

 

1 . Not helpful to think about adversarial v inquisitorial, but as more and more cases involve litigants in person who would rather be represented, Judges are going to need to play a larger role in the conduct of proceedings

The President says that in cases where there are litigants in person, the Judges are going to have to be more inquisitorial in style, and that sitting Sphinx-like until judgment isn’t going to work. He doesn’t think we are likely to end up with a continental style inquisitorial system, but we are a long way removed from the traditional adversarial system already.

2. Doesn’t think that the cuts will adversely affect the reforms

In fact the thrust of what the President seems to be saying here are that the reforms are vital because of the cuts, and that drive towards efficiency, cost-effectiveness and reducing time taken before the Court will allow for the litigant in person cases, which he accepts take longer

 

3. Believes that there will be a tipping point for mediation, where when it is sold correctly as to the benefits, more and more people will want to take it up  [We are in an almost- crisis situation at the moment but once we get the message across it will be a very attractive option]

He was not keen on the idea of cost sanctions for failure to mediate or engage properly in mediation

 

4. Next stage of transparency will be greater access to court papers

As he rightly points out – if so much of a hearing is “Can I refer to to page B64, paragraph 6″ then a journalist sitting in Court is not able to get any real sense of what is happening, what is being referred to. He says that there are going to be proposals about this in the very near future.  He also indicates that because of the way that case numbers are coded, anyone who tries to work them out can quickly decipher that a Case Number refers to a Private Law case in Sunderland, as opposed to a Public Law case in Wolverhampton   (He is wrong about the code for Brighton being BH though – for some reason I have never fathomed, it is UQ)

 

5. He is aware of the tension between what the Government say about adoption and what the Courts say

 

For me, this was the most interesting question, and indeed answer. It is clear that on the one hand, the Courts are implementing a “nothing else will do” philosophy on adoption, and on the other the Government has a pro-adoption agenda and is measuring Local Authorities on performance and threatening to remove these functions from Councils who don’t meet what the Government have in mind. What the President says, in effect, and much more politely than my shorthand summary, is that Parliament make the statutes, not Governments, and that if Parliament disagree with how the Courts are interpreting statute, then Parliament will need to change the statute. He acknowledges the tension (explicitly referencing that the Government have talked about local councils need to get away from the idea that adoption is the last resort) and says that on the ground, for Directors of Children’s Services, “it must be slightly difficult to know exactly what they should be doing given that tension”    (something of an understatement)

 

 

Vests

I am starting to come across cases in which rather than a police notebook or statement, the Court now has the benefit of seeing the video-footage recorded by the police vest-camera of an incident. The officers have a camera fitted to their vest, and everything that they do in the course of the working day is recorded and available for later scrutiny.

No doubt this is very helpful in cases with Brazilian electricians, or where there is doubt about whether or not someone had a gun, or heaven forbid whether a Government Minister included a class-based insult when swearing at police officers.

The benefit for court proceedings is plain – rather than relying on a recollection of an event that may or may not be accurately remembered or may be coloured by other issues, what actually happened is there for the Court to see. It might back up what the prosecution is saying, it may back up what the defence is saying. I was tempted to say “The camera never lies”, but we’ve seen too many doctored photographs to believe that any more.

There are potentially other benefits, as well as the direct forensic one – chiefly about trust and relationship between the public and the police. There’s no value in the police stretching the truth, or behaving in an improper way towards a suspect if the camera footage is going to be disclosed and seen later.

So, is there merit in trialling these vest cameras (the most high-tech ones being about the size of a credit card or identity card) for social workers?

There’s not a lot of transparency online about the costs of these cameras, since they are being produced by commercial bodies who don’t want to stick their pricing up on line and give their competitors an edge, so that would be the major hurdle. But you can tell from the price of camcorders and how much cheaper and smaller they have gotten over the last five years that it wouldn’t necessarily be prohibitive.

The camera would be worn for every meeting with the family, every assessment session, every visit. The family would be entitled to request to see any of these, and to make use of any of them in Court. Equally, the Judge could see any footage of an incident where there is a dispute. Rather than having to choose between two competing stories, the Court can see for themselves what actually happened.  It cuts both ways – if a social worker is exagerrating about the home conditions or being provocative, difficult or patronising, that will get seen – on the other hand, the Court could see exactly what was said and exactly how the house looked on the day in question. Much better chance of getting to the truth.

And just as with the police, the knowledge that everything is being filmed might reduce the occasions on which professionals are heavy-handed or stretch the truth.  Which in turn might improve the relationship between professionals and families – everyone knows that the facts can’t get twisted or have words put in their mouth, because the truth is there to be watched and inspected.

 

Is it something that is worth a try? Is it the sort of thing that would make more of a difference to how families are treated than micro-management of forms and documents?

 

The counter arguments might be that being filmed might inhibit people or make them self-conscious giving a more stilted performance in assessments, that the footage might be misused or misfiled or get lost (accidentally or deliberately), that the footage might find its way online, that children might be shown it or come across it. Those are things which would need careful thought.

 

Follow

Get every new post delivered to your Inbox.

Join 2,403 other followers