Live and study­ing ate my time. I’ll be get­ting it back in a week or so. I’ve writ­ten my first sub­stant­ive draft post in twenty months, and it felt good.

Of course. I’m not quite fin­ished with the study­ing yet. Mat­ter of weeks. Finally.

 

I hadn’t real­ised it had been over a year since I had writ­ten any­thing here. I have the usual Open Uni­ver­sity Stu­dent excuse: not enough hours in the day to work, study, have an occa­sional social life, and spend time with your part­ner. For the same reason my ten­ure of the OULS vice-presidency was rel­at­ively short–lived: but at the same time, so was the ten­ure of sev­eral oth­ers. We didn’t change the nature of a law soci­ety formed of stu­dents with day–jobs; it was in ret­ro­spect fool­ish to think otherwise.

I had an incred­ibly busy year last year rolling out an IT refresh to 700+ retail units in ten months — a big, com­plex and time–consuming task that, while done well and to the sat­is­fac­tion of every­one involved, not some­thing I’d want to do again immediately.

I have no idea if I’m going to be able to post reg­u­larly. But hope­fully I’ll be able to com­ment in my usu­ally way — on odd and minor legal mat­ters that may have escaped the atten­tion of the big law blog­gers out there.

 

That’s me, that is, for 2011-12. I’m honoured.

The Open Uni­ver­sity Law Soci­ety has been pretty quiet for a few years now; I think it had in fact been moribund before last years’ com­mit­tee got it going again. I’m glad to be be involved at the out­set of this effect­ively new soci­ety — there are many ways in which a strong and act­ive soci­ety can bene­fit OU law stu­dents. We suf­fer a num­ber of sig­ni­fic­ant chal­lenges in terms of law–related extra­cur­ricular activ­it­ies in com­par­ison to tra­di­tional law stu­dents given the spread of OU law stu­dents through­out the UK.

There are some ways in which the soci­ety can dir­ectly help with extra­cur­ricular activ­it­ies. Moot­ing is an obvi­ous example, and one in which we should become much more act­ive. Oth­ers, such as help­ing people with law–related volun­teer­ing and sim­ilar activ­it­ies, are more dif­fi­cult — but we should at least be able to act as a repos­it­ory and con­duit of inform­a­tion about activ­it­ies that are par­tic­u­larly suit­able for OU students.

We want to act as a method of mak­ing the Open Uni­ver­sity take heed of the con­cerns of law stu­dents. It’s good that the fac­ulty is pre­pared to both listen and act at the moment — we aim to cap­it­al­ise on this and enable stu­dents to have a power­ful say in shap­ing the OU law degree.

The one thing we can’t do is anti­cip­ate every sug­ges­tion on how the soci­ety can help stu­dents with extra­cur­ricular activ­it­ies and to make the OU law degree of even more value. And to that end, I’d love to hear from any­one with thoughts or sug­ges­tions. The com­mit­tee are still find­ing their feet at the moment, but the sooner we hear from people the sooner we can col­late a pro­gramme of work for us for the com­ing year.

 

I had to face a quandary today — am I a legal com­ment­ator or not? I write a blog, which has been known to dis­cuss legal mat­ters in the pub­lic aware­ness, or indeed com­ment on indi­vidual cases, from time to time. But is that enough? And does it even matter?

The reason for this thought is that the Lord Chief Justice has today issued a new prac­tice guideline, cov­er­ing who may tweet, or use other forms of text-based com­mu­nic­a­tion, from inside the courtroom. A “journ­al­ist or legal com­ment­ator” is not required to ask per­mis­sion before doing so, every­one else is required to ask per­mis­sion of the presid­ing judge.

There is a prob­lem in this guid­ance though. There is no test to identify who is a legal com­ment­ator. Journ­al­ists are usu­ally able to rel­at­ively eas­ily identify them­selves as such if chal­lenged. How­ever, there is no single identi­fy­ing fea­ture for the dis­par­ate group of us who from time to time com­ment on the law. Should we carry a prin­tout of our blog, perhaps?

So is the cat­egory of legal com­ment­ator of any use to indi­vidu­als? I sus­pect not. If I tweet from court without ask­ing on the basis that I am a legal com­ment­ator, I doubt assert­ing that I am would aid me if the judge notices that I haven’t asked and hauls me up to explain myself under threat of the pro­vi­sions in the Con­tempt of Court Act.

There­fore, even if I con­sider myself a legal com­ment­ator, I would sub­mit that, for other than accred­ited journ­al­ists, the best course of action is always to ask per­mis­sion of the presid­ing judge, via the court staff. The prac­tice guid­ance, by its lack of defin­i­tion of who are mem­bers of its per­mit­ted cat­egor­ies of tweeters, leaves too much room for mis­un­der­stand­ing. As in indi­vidual, I wouldn’t want to run the risk of any such mis­un­der­stand­ing caus­ing me grief.

 

Get­ting up and talk­ing in front of people is one of these activ­it­ies that does not often come nat­ur­ally. I have been doing in dif­fer­ent ways from around the age of 13 — the thick end of thirty years, now. I have done it in a wide range of forms — on stage in plays and pub­lic speak­ing com­pet­i­tions at school and uni­ver­sity. Present­a­tions to cli­ents and to audi­ences of peers at work–related con­fer­ences and events. I have pitched for work, I have spoken at fam­ily cel­eb­ra­tions. I have toasted friends and col­leagues, I have been the anonym­ous voice telling audi­ences what to do on leav­ing the theatre. You think I’d be used to it by now.

Not really. It’s true that skills become more finely–honed by prac­tice. It’s easier for me to flow whilst speak­ing now — the words come easier, take a shape and a struc­ture, hit the points I wish to make and leave the audi­ence (I hope!) con­tent with what I have expressed and the way in which I have expressed it.

But I’m not a nat­ural pub­lic speaker. The thought of stand­ing up and say­ing things to other people used to scare the liv­ing day­lights out of me. Actu­ally doing it was not much bet­ter — and the win­dow just before start­ing was par­tic­u­larly hor­rible. It took an effort of will for me to stand out there and speak. Some people can do this without appar­ent effort. Most people cannot.

But one of the things that made it easier was the pre­par­a­tion. On the stage, I’m in cos­tume and makeup, per­form­ing the rôle. On a stage at a tech­nical con­fer­ence, I (now) have my own little rituals of pre­par­a­tion[1]. Even toast­ing my Dad’s birth­day, I still draw myself together, neaten the shirt, smooth the tie, pre­pare to be watched as much as listened to.

I read today that in the Supreme Court, that (if all advoc­ates agree) the wear­ing of formal court dress — wig and gown — can be dis­pensed with. I fer­vently hope that this prac­tice is seen to be an excep­tion, and does not become exten­ded to the lower courts. There are sev­eral reas­ons for me think­ing this.

Firstly, the fact that the justices of the Supreme Court do not wear robes or wigs is a his­tor­ical acci­dent. The beha­viour was impor­ted to the Supreme Court from its pre­de­cessor body, the Judi­cial Com­mit­tee of the House of Lords, which main­tained the fic­tion that it was not actu­ally a court and there­fore its mem­bers dressed in day dress, not court robes.

Secondly, there is no sci­en­tific­ally reli­able evid­ence on whether any­one thinks how advoc­ates or judges dress (with one excep­tion) mat­ters. The excep­tion is the Fam­ily Court, where the require­ment to put vul­ner­able or young wit­nesses in as famil­iar an envir­on­ment as a court can be made to be, should (rightly, I believe) be para­mount. Apart from that though, there is no ser­i­ous stat­ist­ic­ally rig­or­ous research done on the ques­tion. And simplistic ques­tion­ing will get the simplistic answer. But the level of answer is only lim­ited by the ques­tioner — I could frame a ques­tion that would get crim­inal cases at the Crown Court heard by someone wear­ing a black trackie, with lilac and red pip­ing, no problem!

So now that change for his­tor­ical reas­ons and for per­cep­tion reas­ons are elim­in­ated, I want to set out my stand. As a very junior poten­tial future advoc­ate, I like the wig and robe. Even though I have never worn one.

I believe it allows people to step bey­ond them­selves, and assume the rôle.

We are asked to take whatever case we are given, whether we believe in it or not. We are asked to pro­sec­ute the poten­tially inno­cent and decent the poten­tially guilty, without fear or favour. The cab rank rule applies — we have no say in the cases that are given to us. And those are good and neces­sary things for the admin­is­tra­tion of justice. One of the coun­ter­bal­ances to this in my view, how­ever, is that it is import­ant, espe­cially for those new to advocacy, is to phys­ic­ally have the act of being the advoc­ate, and the act of becom­ing the indi­vidual again. The dis­tinc­tion between indi­vidual and job per­formed. And, for a lot of people (and I hope to be one of them) this is sig­ni­fied by the put­ting on of the wig and gown.

It’s the assump­tion of the rôle, the pre­par­at­ory step that takes you bey­ond your­self as an indi­vidual. The don­ning of the wig and gown is the phys­ical act that turns the per­son into the rôle. Game on, as it were.

At the levels of the Supreme Court, at which only the most com­pet­ent, the most in com­mand, the most skilled are ever likely to prac­tise — I can see that there is not neces­sar­ily any need for the advoc­ates and bar­ris­ters there to be in court dress. How­ever, in the lower courts, there are many people who take some com­fort in the wig and gown. I know I will. It may seem to be a trivial thing, an ana­chron­ism in this day and age. But to those who wear it and those who aspire to wear it, it can rep­res­ent some­thing that is the rep­res­ent­a­tion of some­thing more import­ant than them­selves as a person.

I real­ise this is an entirely emo­tional argu­ment, and one that can be eas­ily countered. Is it there­fore a just a cypher that I look up to? Maybe I need to find another less phys­ical man­tra that allows me to go “game on”. But given that there is no stat­ist­ic­ally rig­or­ous evid­ence that any­one finds the wig and gown to be an issue (let alone com­par­at­ively how import­ant an issue), and given that I like its abil­ity to step me out of “me” and into what I need to do — let’s ignore this for a bit. I’ll keep the wig and gown I hope to wear, if that’s all right. I’ll ditch them in an instant if if any­one can prove that people think that mat­ters.

“Take your change and keys out your pocket. You won’t nervously play with them in your pocket. For the love of god, think how it looks…”

 

Some­time ago I pos­ted a link to another blog con­tain­ing a link to a degree clas­si­fic­a­tion cal­cu­lator for Open Uni­ver­sity degrees. How­ever, the way the clas­si­fic­a­tion is cal­cu­lated for OU law degrees is slightly dif­fer­ent. Luck­ily, it’s pretty simple to work out.

The OU law degree con­sists of 4 man­dat­ory courses: W200, W201, W300 and W301. For W200 and W201, mul­tiply your grade (1−−4) for each course by 60. For W300 and W301, mul­tiply it by 120 (to reflect the degree of sig­ni­fic­ance for these courses). Take those four num­bers and add them together. Their sum will give your class of degree:

  • 630 or fewer — First class honours
  • 631−−900 — Upper second class honours
  • 901−−1170 — Lower second class honours
  • 1171 or more — Third class honours

There is one trick to this. If you have a poor res­ult in either W200 or W201, you can replace half of it with a bet­ter res­ult in one of the law short courses: W221, W222, W223 or W224. For example:

Grade 3 pass of W200: 3 × 60 = 180 points.
Grade 3 pass of W200 and a Grade 1 pass of W223: 3 × 30 plus 1 × 30 = 120 points

That can be enough to pull you up a grade!

Just for com­plete­ness — while you need to sit 360 points’ worth of courses, it is (with the excep­tion noted above) only the 240 points of the man­dat­ory law courses that count to your law degree classification.

Source: (and a really use­ful read for all OU law stu­dents) Choos­ing your path to an Open Uni­ver­sity Law degree: a guide

 

My gut instinct regard­ing my last post on Royal and Sun Alli­ance Insurance’s busi­ness struc­ture increas­ing the costs of acci­dent repair was that it was unlikely to be the end of the mat­ter. Per­mis­sion had been gran­ted to appeal; I fully expec­ted to see the mat­ter be resolved there. But that would only determ­ine the law as it applied to the fac­tual mat­rix of the case in ques­tion. That approach would be unlikely to help other cases much — it would be open to argue that the fac­tual mat­rix was suf­fi­ciently dif­fer­ent that the appeal judg­ment did not apply. This clearly would not address the core question.

Provid­ent Insur­ance has decided though to take a dif­fer­ent approach: to seek determ­in­a­tion from the Com­mer­cial Court — a spe­cial­ist branch of the Queen’s Bench Divi­sion of the High Court — as to whether RSAI’s com­mer­cial model is leg­ally cor­rect. In the case I last wrote about, it was held (at County Court level) that it was not, but clearly there has been a dif­fer­ence of opin­ion between County Courts. RSAI has agreed that it’s desir­able that its busi­ness prac­tice in ques­tion be tested for legality.

So in Coles & Ors v Heth­er­ton & Ors [2011] EWCH 2405 (Comm) Provid­ent and RSAI have both brought claims between them­selves in the High Court itself (nor­mally they are pre­cluded from doing so because of the likely size of award), and trans­ferred in cases from the County Courts. The next step will be the selec­tion of lead cases in this matter.

This is all at a very early stage, but it has poten­tially far–reaching effects. The lead cases will determ­ine the shape of the case as it will be heard, but there are more situ­ations than just vehicle repair paid by an insurer where a corporation’s internal group struc­ture can lead to addi­tional costs being passed to the per­son who ulti­mately pays. In the case pre­vi­ously men­tioned it was entirely unclear why addi­tional costs were levied by the inter­me­di­ate insurer–owned com­pany, and this is why some County Courts have rejec­ted such addi­tional costs.

How­ever, there could be poten­tial situ­ations where such addi­tional char­ging was trans­par­ent, and also neces­sit­ated by a busi­ness struc­ture chosen for legit­im­ate other reas­ons, for example tax min­im­isa­tion. Whether increas­ing the cost to the end con­sumer in order to achieve an unre­lated advant­age­ous fin­an­cial out­come for the com­pany as a whole is the ulti­mate ques­tion here, and one that is very inter­est­ing indeed.

 

Mr Fal­lows’ car was dam­aged by a vehicle owned by the defend­ants. Liab­il­ity was not an issue. Mr. Fal­lows’ vehicle was insured by Royal and Sun Alli­ance, who sought to recover their costs from the defendant’s insurers. The costs were £1825.53. Not a large sum. How­ever, the defend­ants objected.

The reason for the objec­tion was that Royal and Sun Alli­ance arranged repair via a wholly-owned sub­si­di­ary, which then con­trac­ted with a sub­con­tractor, who actu­ally repaired the vehicle. The sub­con­tractor billed the sub­si­di­ary the sum of £1542.78. The sub­si­di­ary added on fur­ther costs, and billed Royal and Sun Alliance.

In Rom­ford County Court, the defend­ants ques­tioned the sum claimed. It was held that, given the duty to mit­ig­ate, the best evid­ence of reas­on­able cost of repairs was that which RSA’s sub­si­di­ary nego­ti­ated with the sub­con­tractor. There was no evid­ence that RSA itself could only nego­ti­ate a higher price. While admin­is­tra­tion costs have been allowed by the courts in the past, there are no decisions allow­ing them to a sub­rog­ated insurer, let alone a sub­rog­ated insurer’s sub­sid­ary. And in coun­ter­bal­ance, there are decisions where admin­is­tra­tion costs have been disallowed.

The Judge (Platt J) said:

Since RSAARL is wholly owned by RSA the effect of these extra charges if they are paid by defend­ants is simply to boost RSA Group’s profits bey­ond the actual cost of repair by the mar­gins inser­ted by RSAARL. I can find no basis in law for say­ing that this is a course of action which a claimant insurer is entitled to take [..]. On the evid­ence the defend­ant has clearly estab­lished a fail­ure to mit­ig­ate on the part of the claimant.

Now that this judg­ment is pub­lic, the util­ity of this busi­ness arrange­ment to RSA is prob­ably moot. Other insurers could use the same model. This how­ever was found to be likely to lead to an increase in costs to the insured mem­bers of the pub­lic of some 25%.

RSA were held liable in costs to the defend­ant — exceed­ingly unusual in a small claim. Even though they were the claimant, they almost com­pletely failed to com­ply with pre–action pro­tocol and with the court–ordered dis­cov­ery pro­cess. For example, the exist­ence of a formal invoice from the repairer to RSA’s sub­si­di­ary was not dis­closed, even once its exist­ence had become appar­ent dur­ing the trial.

Per­mis­sion was given to appeal.

Judg­ment in the case can be found on BAILII at Fal­lows v. Hark­ers Trans­port (A Firm) [2011] EW Misc 16.

 

Data stor­age in the cloud is clearly the where things are mov­ing just now. Given the pleth­ora of devices people have — com­puters at home, laptops and tab­lets on the move, smart­phones in the pocket, it makes per­fect sense for all of a person’s devices to use a single, com­mon repos­it­ory for shared inform­a­tion. Ser­vices such as Apple’s forth­com­ing iCloud at the domestic level, and commonly–used ser­vices such as Google’s Google Apps, Salesforce.com and Microsoft’s Office 365 all store your data in their own clouds.

You’d think that this would be done with respect to Data Pro­tec­tion laws. Wrong. If the USA wants your data, the USA gets it. My friends Simon Bis­son and Mary Branscombe have the details: regard­less of European pri­vacy dir­ect­ives and the UK Data pro­tec­tion act, the US see the PATRIOT act over­rid­ing these for US com­pan­ies and EU sub­si­di­ar­ies of US companies:

That means that US gov­ern­ment can (under the aus­pices of the act) request the data of any indi­vidual or com­pany that’s using US-owned or hos­ted ser­vices, no mat­ter where that data is actu­ally being held. It doesn’t mat­ter if you’ve geo-locked your data, and it only resides in European data centres, it can still be requisi­tioned and taken to the US. Yes, it’s an issue of national secur­ity, but when res­ults can be found by machine learn­ing and trawl­ing massive data sets (the lar­ger the bet­ter), there’s a tempta­tion for gov­ern­ments to take all they can and more.

Undoubtedly this will lead to much hand–wringing in the EU Par­lia­ment. How­ever, what can be done? It is unlikely that the USA will give up their powers.

There­fore, the only solu­tion is in the hands of indi­vidu­als and com­pan­ies wish­ing to use cloud ser­vices — only use cloud ser­vices from wholly–EU–owned com­pan­ies host­ing your data inside the EU. While the legal pro­tec­tions you will have in those cir­cum­stances are not huge, they are bet­ter than none at all.

Oh — an after­thought. How happy do you now feel, if per­haps you have just given a whole heap of your per­sonal inform­a­tion to Google, dur­ing the Google Plus sign–up process?

 

Back in the middle of may, I had just fin­ished study­ing my judi­cial review mod­ules on my law course, and I thought it would be a good use of a free day to head to court to see judi­cial review in prac­tice. As luck would have it, there was a case lis­ted that day, the 16th May, at Manchester Civil Justice Centre:

R (Chief Con­stable of Manchester Police) v Salford City Magis­trates, case CO/3649/2011

Inter­est­ing, thought I. There had been a few cases in my notes where a decision of a Magis­trates Court had been judi­cially reviewed, but not any on the behest of the police. I decided to attend.

Of course, this case is now known as Hook­way. I really couldn’t have chosen a bet­ter case to sit in upon, in terms of its repercussions.

The prob­lem high­lighted by the case can be sum­mar­ised pretty quickly. Once the police arrest someone, they only have a cer­tain num­ber of hours to ques­tion them before they must be released. That time can be exten­ded, but only to a point. The ques­tion is, when a per­son is released on bail, is the “clock” still run­ning, or has it been paused?
It has been police prac­tice to assume the lat­ter as long as the cur­rent régime, intro­duced in the Police and Crim­inal Evid­ence Act 1984, has been in force; but the sec­tions in ques­tion — 41 to 47 — are remark­ably unclear, and in fact make no men­tion of the clock stopping.

In the court itself, there were eight people. Mr Justice McCombe, the court clerk, one usher, two police­men, one police soli­citor, Ms. A Whyte QC, and me. Salford Magis­trates and Paul Hook­way were not represented.

Every­one in the courtroom that day knew this applic­a­tion was dif­fi­cult, and that it had con­sequences. Every­one was fully aware that the reper­cus­sions of uphold­ing the lower court’s rul­ing would be far–reaching. Ms. Whyte QC ably led the court through the com­plex­it­ies of the legis­la­tion, point­ing out, entirely fairly given that the defend­ants did not appear, the per­spect­ive from both sides of the argu­ment. There was abso­lutely no pre­vi­ous author­ity on the ques­tion, and only one aca­demic work (which was not on point to the ques­tion at hand). The Judge and Ms Whyte slowly and care­fully picked their way through the six rel­ev­ant sec­tions of the act, tak­ing over two hours to do so.

It was hugely inter­est­ing to watch these people dis­sect­ing the sec­tions of the act in vari­ous ways, try­ing to tease out the pre­cise mean­ing of the words of the act. Ser­i­ous people, at a ser­i­ous task.

Sadly, I was unable to attend the handing–down of the judg­ment, which happened on Thursday the 19th May. The judg­ment wasn’t made pub­lic until the middle of June — and then, of course, there has been the usual raft of pub­li­city. While there has been some reas­on­able cov­er­age in the press, it’s sad to see that cov­er­age des­cen­ded rap­idly in the BBC and the Guard­ian.

Today, two devel­op­ments have occurred. The Supreme Court have turned down a request for a stay of the rul­ing, prior to their hear­ing an appeal from it on the 25th of July. And on Thursday, the Gov­ern­ment are intro­du­cing legis­la­tion to over­turn the rul­ing.

While the details of the legis­la­tion are yet to be pub­lished, it is very likely that they will change the law to how it was believed to be prior to the rul­ing in Hook­way. This may be a missed oppor­tun­ity. Let­ters in the Guard­ian sug­gest police bail can be abused, by the impos­i­tion of restric­tions dur­ing bail. Rather than enact in law a patch to re-establish the status quo, might it be time to take a long look at the legis­la­tion sur­round­ing arrest, deten­tion and bail, and re–enact it to get rid of its incon­sist­en­cies, lack of clar­ity, and exploits?