uklawyers legal newswires

By Steve Butler and Joe Reevy
Number 55
21st April 2005

Contents
The Leading Question	Charities Feature	Prenuptial Agreements Feature
Site Of The Week	uklawyers legal newswires	Practical Cases and Materials

Holidays Section	Oh! What Lovely Law!	Legal Practitioner

The Leading Question

Aren't We All Criminals? (Police Arrest Targets Continued)

As reported last week Thames Valley Police have devised a points system
to measure police performance. The case of the speeding Police Chief
Superintendent reported at the weekend has given me more food for thought.

As Jesus said in preventing the stoning of an adulteress:
"He that is without sin among you, let him first cast a stone at
her."

I don't make a habit of quoting from the Bible but doing so here
makes a point - from time immemorial anyone with any sense has
realised that none of us is perfect. I'd go further and say that
we all, at one time or another, commit what is technically a
criminal act for which we could (should?) be punished. Do you
know any learner driver who has never inadvertently exceeded the
speed limit? Do you know any car owner who has never over-stayed
in a parking spot? Most of our offences are committed without
malice aforethought and without causing any harm. I could go on -
the list of relatively minor offences which remain undetected is
immeasurable and to all intents and purposes infinite. And the
Police know that this goes on and will generally ignore such
offences even if they actually see them happening.

On the other hand the number of real criminals who do have a
motive, who do make plans, who do rob and damage and who do
transgress the criminal code with malice aforethought is actually
finite. In Bradford it has recently been realised that about 90%
of all car crime is committed by about 20 young lads. Nationally,
there were 853 murders in 2003/2004 and 12,354 rapes. Reported
crime is measurable and measured.

This means that there is only so much work for the Police to do.
The fact that they seem to be incapable of doing it very well has
led all the political parties to make manifesto promises of more
Police and Community Support Officers, even though we already have
record numbers. In other words we will be throwing more officers
at the same number of reported crimes which will make it more
difficult for each one to achieve his or her target. If the
Police were perfect and every rapist each year was arrested at the
rate of 1,000 per month only one thousand officers would be able
to claim 10 points towards their monthly target. (In fact the
number of rapists arrested is low - in 2001 about 25% of rape
allegations lead to a prosecution and out of over 9,000 rapes
reported only 572 resulted in a successful conviction.) The other
129,000 or so police officers will be desperate to make two
arrests of 5 point offences to reach the same score or 5 arrests
of 2 point offences. Or they can claim a detection of any offence
to gain 10 points.

The inevitable result will not be that more rapists will be
arrested but that more minor offences will be detected, sought
out, grabbed at by every police officer in the land.

And if we are all criminals many of our previously undetected or
ignored transgressions will be dealt with as criminal acts. This
will not be a pleasant process and the net effect will be that
more and more people will become disillusioned with the Police and
the criminal system.

Robert Forde wrote to me last week:
"As a forensic psychologist, I can't help agreeing with your
concerns over police motivation. Broadly, if people are rewarded
for doing something, they will tend to do it more. I know you
don't have to be a psychologist to see this, but sometimes policy
makers behave as if they had never heard of the idea. If you
reward arrests you will get more arrests, not less crime."

He goes on:" How about rewarding the police for reductions in
crime in their area? Of course, these would have to be measured,
not by their own statistics, but by an independent measure such as
the British Crime Survey."

A good idea, but as the Home Office says:
"As a survey of private households, the British Crime Survey is
limited to the offences it covers and the victims within its
scope, and cannot provide an assessment of crime trends on the
local level." In other words there is no easy way to measure
reductions in crime and so the Police are unlikely to attempt to
do so.

Of course, some members of the Police force may have other
motivations for reporting crime. I would love to know why Chief
Superintendent Les Owen and his driver were reported for driving
at 86 MPH in a 50MPH area which they did only because they were
late for a meeting. I'm sure it must have been purely as a result
of a genuine desire on someone's part to do his or her duty and
nothing to do with targets at all.

Regards
Steve Butler
Solicitor
Newswire Editor

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Charities Feature

Despite the loss of the Charities Bill as a result of the general
election, the Charity Commission is very upbeat at the moment.
Here is the site.
. . .complete with new green flag logo.

Here is a Newsetter from Cobbett's Charity Team:
"Charity Matters"

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A website that is out of date is as much use
as a bicycle for a fish.
The answer?
http://www.webnotes.co.uk/

Tel: 020 8254 5116 Fax 020 8646 4653
Email: webnotes@statplus.co.uk

Stat Plus Limited,
Stat Plus House, Greenlea Park,
Prince George's Road,
London SW19 2PU

Prenuptial Agreements Feature

Article by TLT Solicitors
A site which specialises in their preparation:
http://www.prenuptialagreements.co.uk/
complete with academic treatise justifying its existence.

Resolution supports them but there is little information on their
site, but here is a plug anyway for their book
http://www.resolution.org.uk

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Site of the Week:

The Vatican

http://www.vatican.va/phome_en.htm
Habemus Papam - Benedictum XVI
A topical site this week with interesting information about the
new Pope, including live TV. There is lots of other material -
newspapers in latin; fascinating virtual tours of museums;
histories of saints - lots to look at on a nicely designed
multilingual site.

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uklawyers legal newswires

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PRACTICAL CASES AND MATERIALS

Subjects
Commercial and Contract	Courses and CPD	Crime and Punishment
Employment and Discrimination	Family	Government
Immigration and Nationality	Land and Environment	Legal Practice and Lawyers
Litigation, Courts and Human Rights

Commercial and Contract

Guarantees and Performance Bonds
Marubeni Hong Kong and South China Ltd v Mongolian Government
[2005] EWCA Civ 395
CA
13 April 2005
Daily Law Notes Report Summary
In construing a guarantee given outside the context of a banking
instrument such as a performance bond or demand bond, the absence
of language in the guarantee appropriate to such a bond or
something having similar legal effect created a strong presumption
against an intention to create a performance bond or anything
analogous to it. Wording in the finance minister's letter of
guarantee, such as "unconditionally pledges" and "simple demand",
was appropriate to a secondary obligation, ie one conditional on
default by the buyer.

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Courses and CPD

The Legal Easel

The Legal Easel which provides courses and conferences for
lawyers, legal assistants and health and safety professionals.
http://www.legaleasel.co.uk/
Course around the UK on these topics and more:
Inheritance Tax, 2005
Hot Issues in Commercial Property Law 2005
Understanding Conveyancing 2005
Health, Safety and the Law 2005 - a day with the lawyers
Difficult Issues in Criminal Law and Practice 2005
The Legal Easel, 7 Chesterford Gardens, London NW3 7DD
DX 57565 Hampstead
Tel: 020 7794 5565
Fax: 020 7794 1978
Email: admin@legaleasel.co.uk

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Crime and Punishment

Consumer and Legal Groups Publish 'Manifesto for Justice'
Bar Council Press Release
18 April 2005
A broad-based coalition of eight consumer interest and legal
organisations has today published a 'manifesto for justice',
calling on the three main political parties to commit themselves
to upholding core values in the justice system.
The Full Manifesto

Revenue and Customs Prosecutions Office Established
Attorney-General's Office Press Release
18 April 2005
The Revenue and Customs Prosecutions Office (RCPO) today becomes
the newest component of the UK's Criminal Justice System. David
Green, QC, RCPO's first Director, launched the new Department by
saying: "It is a great privilege to lead this new fully
independent prosecutions office. RCPO is a highly experienced team
of specialist prosecuting lawyers and support staff. We conduct
some of the most serious and complex cases that come before the
courts: from drug importation to tax fraud."

Magistrate's Criminal Blog
"The Law West of Ealing Broadway"
http://thelawwestofealingbroadway.blogspot.com/
"The Magistrate's Blog - Musings and Snippets from an English
Magistrate (Justice of the Peace). This blog is anonymous, and
Bystander's views are his and his alone. Where his views differ
from the letter of the law, he will enforce the letter of the law
because that is what he has sworn to do. If you think that you can
identify a particular case from one of the posts you are wrong.
Enough facts are changed to preserve the truth of the tale but to
disguise its exact source." Sometimes entertaining.

Criminal Legal Aid
Report on LAPG/LAG Conference on Competitive Tendering Proposals
13 April 2005
The Legal Services Commission's proposals for price based
competitive tendering for criminal legal work are completely
unworkable and must be abandoned immediately. That was the
unanimous verdict of delegates at a recent joint LAPG/ Legal
Action Group conference, "A tender too far". Solicitors from
across London and its outlying districts discussed what they saw
as a host of technical difficulties that the Commission has yet to
address if tendering is to work.

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Employment and Discrimination

Daniel Barnett reports:
18 April 2005
Unfair Dismissal: Upper Qualifying Age
The Employment Appeal Tribunal has handed down a judgment
restating the law on the 'normal retirement age' and
comprehensively destroying the attempts of some BA employees to
claim age discrimination by the backdoor route of sex
discrimination.
In Cross & ors. v British Airways, the EAT (Burton P. presiding)
held:
    * the existing law on 'normal' (contrasted with 'contractual')
retirement ages was correct;
    * the fact that some employees TUPE transferred to BA from
British Caledonian (which had a different retirement age) some 17
years before could not impugn the tribunal's conclusion that the
normal retirement age for BA staff had, in effect, harmonised;
    * the approach of looking at several different 'pools', to
decide if the retirement policy had disparate impact on one
gender, was the correct approach;
    * it is legimitate to take account of cost to the employer
when deciding the justification issue in an indirect
discrimination claim. Importantly, the EAT distinguished the
position of a private company, which is entitled to rely on cost
to justify a policy, with that of the state (and its notional
'bottemless purse') which, under EU law, is not permitted to
justify an otherwise discriminatory social policy on grounds of
cost. The EAT added that the employer cannot rely solely on
questions of cost, but can put cost into the balance (along with
such other justifications as may exist).
The case does not lay down any new propositions of law, but
contains thoughtful analysis and a robust approach to the
existing, complex, caselaw surrounding this area.
Cross (& ors.) v British Airways

Modern Apprenticeships
A Modern Apprentice is not an 'apprentice' in the traditional
sense, so as to fall within the definition of 'employee' in the
Employment Rights Act 1996(which, at s203, defines 'employee' as
including anybody working under a contract of service or
apprenticeship). The traditional apprenticeship involved a fixed
period of training, where the apprentice would supply labour and
the master would supply training.
However, the 'modern apprenticeship' system (where an individual
works for an employer, but is sent out to a college or other
training provider for part of the working week to be trained)
qualifies as a normal contract of employment and therefore the
apprentice obtains employment protection through that route.
Flett v Matheson

London (Central) Employment Tribunal
A reminder: from today, London (Central) tribunal moves from
Woburn Place to:
Victory House
30-34 Kingsway
London WC2B 6EX
DX: 141420 Bloomsbury 7
Telephone and fax numbers remain the same.

To subscribe to Daniel Barnett's bulletins go to:
http://www.danielbarnett.co.uk/bulletins.htm

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Family

Civil Partnerships
"Civil Partnerships and Benefits"
TUC Briefing Note
13 April 2005
Civil partnerships, which are due to be introduced in the near
future, will have important implications for benefit rights. This
briefing note has been produced by the TUC to alert trades
unionists to some of them.

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Government

Election Law
The full judgments and summaries of Commissioner Mawrey QC about
the disputed Birmingham elections have been put on the HM Courts
Service website.

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Immigration and Nationality

Re-uniting Family Members - A Power Not A Duty
R (G) v Secretary of State for the Home Department
CA
13 April 2005
Daily Law Notes Report Summary
Art 15 of the 2003 Council Regulation (EC) No 343/2003, the
"humanitarian clause", granted Member States a discretion to unite
family members on humanitarian grounds but it did not grant an
asylum-seeker a right to demand such a result.

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Land and Environment

SDLT Practitioners' Newsletter 7
HM Revenue and Customs (get used to it) Publication
19 April 2005
A useful newsletter with a number of topics and especially this
time the UPDATED SDLT6 Guidance Notes as a special supplement:
"How to complete Question 2 of SDLT1 and SDLT4(v2)".
Vital reading if you want to avoid rejections and fines.

SDLT Repayments Due?
The Budget 2005 Provisions On Stamp Duty Land Tax
HMRC Site
A note explaining what has happened to the Budget proposals on
Stamp Duty Land Tax. In particular the note explains that in some
circumstances a repayment may be due to purchasers who have paid
tax on the basis of measures announced in the Budget.

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Legal Practice and Lawyers

Legal Aid - Highest Paid Barristers
DCA FOI Release
20 April 2005
A list of the payments made to QC's and barristers with caveats
about their interpretation. "These figures must be interpreted
carefully and do not represent personal earnings in one year. "

New QC System - Independent Selection Panel
and 2005 Competition Announced
Bar Council Press Release
18 April 2005
The independent selection panel that will consider applications
for the award of Queen's Counsel under the reformed and enhanced
system agreed by the professions with the Government, was
announced today.
Some solicitors on there - the Law Society is pleased.

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Litigation, Courts and Human Rights

Costs Against Third Parties
Goodwood Recoveries Ltd v Breen
CA
19 April 2005
BAILII Judgment
Court can make order against thrip party where litigation caused
and extra costs incurred by his actions - a case against a
solicitor

Changing a Consent Order
Scammell and others v Dicker
CA
14 April 2005
BAILII Judgment
"Mr Laurence was asked in the course of his submissions if he
could cite any case in which a consent order of the court had ever
been declared to have been void on the ground of uncertainty: but
he was unable to say that that had ever happened. In theory it is,
I suppose, possible, just as a consent order may be set aside for
misrepresentation or fraud or for mistake. However, given that the
court is always on hand to lend its assistance in the working out
of its orders or in their clarification, it cannot be a mere
difficulty in interpretation or execution that can undo what with
due formality has been entered as an order of the court in
settlement of litigation before it."

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Law Brief Update

IMPORTANT NEWS: NEW FREE EMAIL LAW NEWSLETTER
Law Brief Update is a new and free monthly email newsletter written by 16 specialist barristers and providing case summaries in all areas of law. It
provides a unique overview of all legal developments with carefully edited
content which will be of use both to the specialist and the general
practitioner as well as of interest to the non-lawyer. Please forward this
information to other members of your firm in different departments who
may also be interested.

To sign up for free, visit http://www.lawbriefupdate.com

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Cases Generally

- As Good As Ever

Now with 91,239 reports indexed and over 100,000 references.

No other research site is so powerful for such a low price.
David is happy to provide subscribers to UKlawyers with a brief
guest account to test the service.

Ring 01484 717380 or 0773 187 4426 to subscribe or enquire.

Many cases have a CASE MAP, with links back to the cases cited
during legal argument and links forward to other cases where this
case was cited. The content of the site includes not just recent
cases but older cases which are still significant and which are
not generally referred to in most other on-line services. A vital
tool for legal research. It is the most reasonably priced
encyclopaedic selection of cases on the internet.

David is developing his new CASE MAP which will make the research
process even easier. Try this sample:

Fraser-Woodward Ltd -v- British Broadcasting Corporation Brighter Pictures Ltd Times, 15 April 2005; [2005] EWHC 472 (Ch)

ChD
23 March 2005

Intellectual Property

The claimant asserted infringement of copyright by the defendants in photographs of the family of David Beckham. The defendant admitted using the photographs but asserted that no permission was required since the use was a fair dealing. Held: Most of the photographs were used to demonstrate a particular style, and the use was fair criticism or review. There was not sufficient evidence to establish any significant damage to the residual value of the photographs, the publication in the film being transitory: 'Risk to the commercial value of the copyright may go towards demonstrating or creating unfairness, but it does not follow that any damage or any risk makes any use of the material unfair. ' The use of the photographs amounted to fair dealing for the purposes of section 30(1) of the Act, but did not amount to incidental use.

Judgment Links: Bailii

The graphical and other links on this page are live. Click on any of
them to explore lawindexpro. Subscribers have use of our search engine.

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Holiday Section

Rent a Country Cottage
Try
http://www.country-holidays.co.uk/ch_homepage.html
Holidays in UK, France or Ireland - virtual tours - good
availability search - gold standard cottages.

or
http://www.cottagesdirect.com/
lots of flashy buttons
or
http://www.english-country-cottages.co.uk/ecc_homepage.html
virtually identical site to country holidays but not quite

or
http://www.recommended-cottages.co.uk/

Generally plenty of availability at the moment.

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Oh! What Lovely Law!

"Bleak House" by Charles Dickens
Novel Serialisation (until about mid-May)
Chapters 53 - 57 (of 67)
To read the original try:
http://www.online-literature.com/dickens/bleakhouse/

For the serialisation of Chapters 1 - 52, go to:
http://www.uklawyers.co.uk/cms/article/bhserial

Previously in "Bleak House"
The two impoverished Wards of Court, Ada and Richard fall in love
as they begin their life with their guardian John Jarndyce and
their companion Esther. Litigation about an old Jarndyce family
Will looms in the background and inexplicably links them to the
aristocratic Dedlock family. By a series of accidents Lady
Dedlock discovers that Esther is her daughter, a child born out of
wedlock, who she thought had died but had been taken by Lady
Dedlock's sister and brought up as an orphan. The Dedlock family
lawyer, Tulkinghorn, is aware of some sort of skeleton in Lady
Dedlock's cupboard but cannot quite work out what it is. He
suspects that she is linked to the death of Captain Harden, a law
writer, and eventually obtains the evidence he needs from Harden's
old comrade Mr George. Esther recovers from a life threatening
illness but is horribly scarred. Lady Dedlock tells all to Esther
who promises to keep it a secret, although she does eventually
tell Jarndyce to whom she secretly becomes engaged to be married.
Tulkinghorn and Lady Dedlock have a confrontation, and Tulkinghorn
makes it clear to everyone involved that he is in charge, at
different times alienating all the main characters including Lady
Dedlock, Guppy the clerk, Hortense the maid and Mr George the
soldier. The next day Tulkinghorn is found dead, shot through the
heart, and Bucket, the detective, arrests Mr George whose friends
rally round to defend him despite his obstinate refusal to help
himself.

Chapter Fifty Three    The Track
Bucket continues to investigate Tulkinghorn's murder. He attends
the funeral and goes to Sir Leicester's house where he has
established his base of operations. He has received six letters
in the past few days which contain only the words "Lady Dedlock".
One of the servants tells him that Her Ladyship went out walking
on the night of the murder.

Chapter Fifty Four    Springing a Mine
Bucket has solved the case and starts to tell Sir Leicester the
whole story. He warns him that he will learn something unpleasant
about his own family. He describes how Tulkinghorn suspected Lady
Dedlock of an association with the deceased law-writer and how he
had used the french maid Hortense to trick Jo into telling him
about Lady Dedlock's visit to the dead man's grave. Bucket is
certain that Lady Dedlock fell out with Tulkinghgorn on the night
of his death, and even went to visit him at night at his office.
An interruption occurs. Smallweed arrives demanding payment of
500 GBP for a bundle of letters found by him as they searched the
house of Krook. These letters were written by Lady Dedlock to the
law-writer and told of a child being born. Tulkinghorn had bought
them from Smallweed shortly before his death, and now Smallweed
wants to profit from them again. But Bucket already has them and
he sends Smallweed and his friends away. Mademoiselle Hortense is
then ushered into the library where Bucket and Sir Leicester are
discussing the case. It transpires that since Tulkinghorn
employed her to trick Jo she has been a lodger at Bucket's house.
He suspected that she had killed Tulkinghorn, knowing that she had
a motive and that she had been out that night, and sets his wife
to stay with her and watch her every move. She sees her writing
and posting the letters which have been seeking to blame Lady
Dedlock for the murder. Mrs Bucket is even present when Hortense
tries to dispose of the pistol in a lake. In short there is a
good case against her and Hortense is arrested for the murder.
The chapter ends with an extremely distressed Sir Leicester
thinking about all he has heard and the fall from grace which his
much loved wife is bound to suffer when all this scandal comes to
light at the inevitable trial.

Chapter Fifty Five    Flight
Meanwhile, the night before Bucket's disclosure, a chaise and pair
races through the night from Chesney Wold towards London. Mrs
Bagnet has found George's mother - it is Mrs Rouncewell, the
housekeeper and loyal retainer of the Dedlock family. George is
her younger son, who ran away to the army many years ago and has
never returned since. Something he told Mrs Bagnet recently meant
that she knew this, although she kept the knowledge secret. Mrs
Rouncewell is very pleased to be finding her son but is upset
nevertheless at the circumstances. At the prison, mother and son
are reconciled and Mrs Rouncewell then approaches Lady Dedlock for
help. Hortense had written a letter to Mrs Rounceweel accusing
Lady Dedlock of the murder. The housekeeper begs her ladyship to
do all she can to save her son (because for some reason Sir
Leicester has not told anyone that Bucket had solved the case.)
The Mr Guppy turns up to speak to Lady Dedlock. He has come to
warn her that the letters he had wanted to sell to her but thought
were destroyed when Krook died of spontaneous combustion have now
come to light and that Smallweed had tried to bring them to Sir
Leicester (or so he thought.) She now realises that Sir Leicester
must know everything about her shameful past and even suspect her
of the murder. She writes him a letter apologising for the shame
about to be brought upon his noble name. She then flees the house
taking only the clothes she wears and leaving her money, jewellery
and good name behind her.

Chapter Fifty Six Pursuit
The reason why Sir Leicester did not tell anyone of Bucket's
discovery was that he was taken seriously ill and collapsed
immediately after Bucket left. It was some time before he was
found in the Library and by the time he was cared for and in bed
Lady Dedlock had written her letter and left the house. Despite
his illness Mrs Rouncewell shows him the letter, still unopened,
in the hope that it will settle his distress but its contents make
him even more agitated. Bucket is summoned and shown the letter
and immediately sets out to find her ladyship with 160 GBP in his
pocket for expenses. Stopping only to inform Mrs Rouncewell that
George has been released, he goes to Lady Dedlock's room to search
for clues about her whereabouts. He finds a handkerchief with
Esther's name on it and thinks it so significant that he
immediately sets about finding Esther and persuading her to go
with him on the search. He is certain that Lady Dedlock is
suicidal and will be more responsive to her than him.

Chapter Fifty Seven Esther's Narrative
Bucket takes Esther on his search. They do the rounds of the
police stations and inns and eventually Bucket is told that a
woman matching Lady Dedlock's description (her clothing was
distinctive) was seen on foot many hours earlier heading towards
St Albans (and presumably Bleak House where she would hope to meet
Esther.) They follow, every stopping place en route providing
more evidence that they are catching up with her. But she is not
at Bleak House when they arrive. So they go to the brickmaker's
cottage where Lady Dedlock had acquired Esther's handkerchief from
Jenny, Jo's friend and Esther's. Jenny is not there but her nasty
husband is. He tells them that Lady Dedlock did visit but has
left after taking a rest. Jenny went at the same time heading
towards London, while Lady Dedlock set off to go further North.
Esther and Bucket take the north road but the trail quickly runs
cold - nobody has seen sight nor sound of her or her distinctive
clothing. Snow is falling heavily and the roads are bad.
Eventually Bucket decides he has made a mistake and should have
gone south and orders relays of horses to be set up so that they
can return to London driving through the night with all possible
haste.

(To be continued . . .)

uklawyers legal newswires

Contents

The Leading Question

Aren't We All Criminals? (Police Arrest Targets Continued)

Charities Feature

Prenuptial Agreements Feature

Site of the Week:

The Vatican

uklawyers legal newswires

Added Value for Subscribers

PRACTICAL CASES AND MATERIALS

Commercial and Contract

Courses and CPD

The Legal Easel

Crime and Punishment

Employment and Discrimination

Family

Government

Immigration and Nationality

Land and Environment

Legal Practice and Lawyers

Litigation, Courts and Human Rights

Cases Generally

- As Good As Ever

Holiday Section

Oh! What Lovely Law!

If there is anything which you would like to contribute to this

section, or to any part of the wire, please contact:

steve@uklawyers.co.uk