|12 Sep 2000||We were intrigued today to see an article in the Times law section referring to a site at http://www.legalhitlist.com. This site keeps a list of the most popular 25 law related sites in the UK. On any sensible measure, we would be in at number thirteen. This would make us second most popular law firm web site in the country - after Dibb Lupton Allsop. I have to say I am not quite convinced. Just as we were missing, so will be many other law firms.
I was particularly pleased to see that we are almost twice as busy as the Legal Services Commission web-site. When we approached the Lord Chancellor's department earlier this year, we were made to feel like something the cat brought in. We were time and again passed from pillar to post, and when we finally did get to speak to someone (who shall remain nameless) the conversation was, shall we say, at best unhelpful, and at worst she was downright rude.
A note : October 15. On checking, we are now listed in 18th place for August 2000. Again, though I am easily flattered, I recognise that te larget firms may find it beneath their dignity to join in the hunt for rankings.
|16 Feb 2000
||Criminal (lack of) Disclosure
In a case recently (Feb 2000), a judge threw out a drugs prosecution. Apart from the failure of the system to decide the guilt or innocence of the parties, the case cost over five million pounds to come to court. It was a big case. Because it was a big case, the pressure was on the police and CPS to secure a committal.
By co-incidence, the prosecution failed, and repeatedly, and apparently with some determination, to disclose to the defence all manner of bits of infromation in their posession which would have been of assistance to them. More than one court order (as well as the general law), was re-interpreted so as to limit the obligation to disclose.
No doubt many, and surely nearly all, in the prosecution team were honest and diligent, but equally without doubt some few were not. The resulting injustice of the prosecution led to the judge throwing it all out - and rightly so.
In any criminal prosecution, the police gather large quantities of information, and all sorts of things are logged by them. Somethings they think will be relevant, and some not. The defence team have to make a similar assessment, but will usually come to a different conclusion. The silly, perhaps even evil, fact however is that the officers involved in the case have almost exclusive control over what the defence sees.
In one more local case recently, a young man was charged with an assault on a constable, putting him at risk of a prison sentence. He claimed that it was the police officer who had begun the assault. On the day of the trial, the defence team had disclosed to them the contents of a 999 log, which demonstrated facts clearly supporting the defence version of events. It was listed on a form which is central to all criminal cases. This form is a list of the papers in the case prepared by the 'disclosure officer.' In this case, and despite it being quite clear to all involved, the officer, his fellow officers, immediate superiors, and the Crown Prosecutor, that the issue was the possible criminal behaviour of that particular officer, that very officer was appointed to take control of what was disclosed. He had marked on the paper that nothing in the log would be of assistance to the defence.
There is an old latin maxim 'nemo judex in sua causa' - nobody should be a judge in his own cause. There is an equally simple principle of English Common law of the right to natural justice, and a fair trial. There is an even clearer staement of binding law in the European Convention on Human Rights, to the effect that a defendant in a criminal case is entitled to a fair trial.
English law now allows, and even encourages, a police officer to act as judge and jury in almost every case he manages. He is given the opportunity to hide awkward facts, with no system for supervising or checking his behaviour. It is virtually designed to corrupt. The Criminal Procedure and Investigations Act (pace Michael Howerd) is the offending beast.
In the seventies and eighties, our legal system had a whole series of real and vicoious miscarriages of justice. The Police and Criminal Evidence Act 1984 improved that greatly. This Act, as promised at the time will create just as many again.
Let us be quite clear. The Police are withholding from the defendant and from the court information which would tend to show the innocence of that defendant. The system encourages them to do so.
17 February 2000
Lest poor Michael Howerd take all the blame, let me record that today also the UK system of public immunity certificates was also challenged by the European Court of Human Rights. In a notorious case, three men were convicted of the 'M25' murders. The court held that the convictions were unfair (improper?) because the system of certificates had been used to withhold from the defence material which might have helped them persuade a jury of the innocence of their clients.
The case pre-dates the CPIA, but it should be noted that the CPIA was trumpeted as an improvement in the system for making sure that the defence should not have information withheld, but in fact did precisely the opposite.
|14 Feb 2000
||Human Rights / Driver Rights
Some of us have been saying for a while that the Human Rights Act will have a major impact on UK law. If there are any left who doubt this, I can only suiggest that they look hard at the case of Brown v Procurator Fiscal, Dunfermline (HCJ Times 14-Feb-2000) The High Court of Justiciary, te highest Court of Criminal Appeal in Scotland, held that the power in the Road Traffic Act 1998 to force a registered keeper to say who was driving a car denies the driver a right to a fair trial by compelling a driver to give evidence against himself. A refusal to answer is itself a crime. The restriction on such powers must apply at the stage of evidence gathering as much as at trial. It does not apply at the stage where an officer is investigating whether a crime has been committed, but does when he moves on to ask who committed the offence.
This section which has long been part of UK Road Traffic law, has been a major plank, for example, in catching drivers who have been speeding on motorways by the use of cameras. The car rushes past, the camera flashes, and the registered keeper is sent a letter requiring him, on pain of committing a criminal offence, to say who te driver was. If the registered keeper was the driver, he has been compelled to provide evidence which wuill lead to his conviction. One can imagine that the consequences for Road Traffic law will be substantial.
I must admit that it all appears rather more clear when a judge explains it, than it did beforehand. Hats off to the lawyer who pushed the case.
|12 Feb 2000
||Site Getting Busy
We are pleased to report that our site is getting very much busier. Welcome, and thanks. The current quarterly averages are available here. They show a clear and steady increase in the number of visitors, and reflect, I hope, the hard work which goes into this site.
I hesitate to trumpet too loudly what we do, but we appear to be getting between 80 and 200 visitors to the site each day. We get less at weekends, which perhaps suggests that we are being read by those at work. Lawyers? I know that we are popular with students - hell - who wants to read the cases anyway? - but I would be intrigued to know more about those who call us.
|Feb 10 2000
||Regulation of Investigatory Powers Bill
Published to day, and available on-line from http://www.publications.parliament.uk/pa/cm199900/cmbills/064/2000064.htm. The Bill incorporates an updated, but only scarcely improved version of the Electronic Communications Bill 1999. To be quite clear, the Bill is a quite unwarranted and deep intrusion into the privacy of anybody who is active at all in any way on-line.
The powers contained are, simply, evil in their effect. They will turn innocent people who are not suspected of any involvement in criminal activity into criminals, and isolate them, turning them into liars to their families and friends, employers and co-workers.
It is, typical of Jack Straw that he has not the faintest idea of what the Bill will do.
For those who want to understand why the provisions will have this effect, please read my article on the previous provisions and their relationship with the Human Rights Act at http://www.swarb.co.uk/lawb/cpuecbill-HR.html
From January 2000, we, as a firm, will not be offering to help clients under Legal Aid, save only in criminal matters and even that is for the time being only.
In Legal Aid, the client is really the government. For years we were told simply to do the best for the lay client. We did so, despite the fact that we were poorly paid for the trouble. Now we are told only to offer a 'Quality' service, a service where the service to be given to client is reduced to a lowest common denominator.
For twenty years I have been content to assist clients receiving legal aid without any distinction as to the rate I was being paid. You deal with the client sat before you. You treat them with dignity, and do the best you can. Now, we are told, in the new 'Quality' system, that we have, in effect, a checklist. The client gets what is on the check list, and if their case does not fit, we do not get paid to do anything else.
It is, in effect, a system designed to give clients standardised, homogenised, minimalised rubbish. I have no interest in that work. I could go on, but ....
|22 December 1999
The Hamilton v Al-Fayed trial has ended. As with most such trials, it will very probably, be tears all round. Hamilton has finally hit bottom, and face penury and the end of any career other than a novellist. They face a huge legal bill, and have no money to pay up. Similarly Mr Al-Fayed faces a legal bill which he can no doubt pay from his loose change, but which I presume he would rather not pay. How much weight people will attach to his own vindication remains to be seen.
What is more important, and rather more subtle is an order made by the judge at the end of the trial, that Mr Hamilton must disclose to the court the names addresses and amounts paid, of all those who contributed more than five thousand pounds to the costs of his action.
Why would the judge make such an order? The answer is that Mr Fayed has been put at risk because he faced an opponent who could not pay up if he lost, and therefore Mr Fayed would lose out whether he won or lost. Who allowed Mr Fayed to be placed in such a position? Not just Mr Hamilton, but also each of those who contributed enough cash to persuade his solicitors and counsel to continue to act.
The purpose of the order is to make those contributors pay up, if and where Hamilton can't. One of the points of Mr Fayed's case (and who can blame him) is that the English establishment has been 'out to get him.' Those who have chipped in to support Hamilton, in the hope of seeing Mr Fayed receive his come-uppance, may now find the tables turned.