Hell & High Water…

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http://www.emptykingdom.com/featured/sergey-tyukanov-purgatory

With todays’s piece I think I’m in grave danger of entering the literary minefield of mixed metaphors; as three such metaphors seem to be running through my mind simultaneously, prompted in part by my current studies of the very legally thorny subject of intent, my related reading of the recent case regarding the appearance of Allan Young this week at the Old Bailey (see reference below) and perhaps what I have learned to call (& will be duly writing a piece on) my #fledglinglawyer Magpie Mind.

So let’s see what “hell and high water”, “rock and a hard place” & “bargepoles” have to say for themselves.

Let’s start with “bargepoles”; these (and the expression “I wouldn’t touch that with a bargepole”) came into my mind as I studied the nigh on impossible situation that trial judges have found themselves in as they have attempted to direct juries (with greatly varying degrees of success it must be said) with regard to the requisite “mens rea” to establish the strict intention necessary to transform a manslaughter into a murder. From the “natural consequences” of DPP v Smith [1961], through the “high degree of probability” of Hyam [1975] to the “virtual certainty” of Nedrick [1986] & Woolin [1999] one cannot imagine how tightly the novice judge (and we tend to forget there are such) would have had to hold onto his “bench book” nor how carefully he/she would have needed to scour the 1967 legislation (Criminal Justice Act 1967) or the more recent mooted notions of codification (Law Commission 2006) to feel even half way confident to propound on said subject.

So therefore perhaps not surprisingly, we come to learn this metaphors originates from equally (if not more so) thorny ground.

First specifically referenced in Lady Monkswell’s Diary, 1893:

“It will be a long while before any political party touches Home Rule again with the end of a barge pole.”

It concerned the very current yet highly emotive topic of devolution; whilst some 50 years earlier an obvious precedent can be found concerning social class in Official Magazine of the Grand Lodge of the United States (1843) edited by James L Ridgely:

“But that mushroom aristocracy of our country… who would not condescend to touch a poor man with a ten foot pole, were their extraction traced, in nine cases out of ten they were nurtured in the squalid huts of poverty.”

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Which I hope takes us quite comfortably on to the Morton’s fork (see history of this expression below) or more colloquially, the rock and a hard place that is facing the advocates, judges and jurors that are currently gathered at the Old Bailey to consider the fate of Allan Young. In a story that is eerily reminiscent of Woolin, a much younger Young (some 13 years ago in fact), in a fit of pique shook his five week old son Michael Winn leaving him with “catastrophic” brain injuries and ultimately severe disability.

The prosecution are now alleging that his death in 2011, following a bout of pneumonia, came as a “direct result” of said injuries and Young is therefore facing manslaughter charges; Prosecutor Zahid Hussain quoted as saying (at the original trial):

“A post-mortem was conducted on January 29, 2011, and the conclusions from the pathologist are that the injuries inflicted upon the child in 1998 led directly to the death of the child.”

Zoey Johnson QC more recently laying out the causal chain thus:

“There was a cause and effect role between the head injury sustained while Michael was a baby and his death at the age of 12.”

I imagine it will be a complex & prolonged trial; even the the thinking surrounding “shaken baby syndrome” has greatly evolved in recent years with one of its pioneers Dr. Norman Guthkelch challenging the classic triad (of cerebral oedema, subdural haematoma and retinal haemorrhages) and even raising great doubts about causality, recently publishing an article very critical of such prosecutions:

“I wouldn’t hang a cat on the evidence of shaking, as presented.”

he is quoted as saying in Shapiro’s 2011 piece on “Rethinking Shaken Baby Syndrome” (http://www.npr.org/2011/06/29/137471992/rethinking-shaken-baby-syndrome).

In any subsequent appeals it seems highly likely that the judges’ directions (as they often are in such cases) will be subject to microscopic scrutiny as the defence look to break this chain and establish external/third party interventions in Michael Winn’s untimely death.

Most lawyers (including trainees) will be familiar with “hell or high water” clauses and most of us in moments of passion have suggested we would do something/get somewhere “come hell or high water” but in this case the literary association came from a much simpler space; just take one look at Allan Young’s photo as he makes his way to the Old Bailey and if you ever need a visual metaphor for “living hell” you have one.

Allan Young arriving at the Old Bailey

Honestly I don’t know where I stand on this case. Guilty of something 13 years ago; of course. Guilty of manslaughter 13 years later I think it’s a very hard call to make both medically and legally; in fact it is the tension between these two specialities that both fascinate me and will ultimately determine Young’s fate. I can be sure of one thing only: whatever the outcome I can’t imagine even justice will be able to extract much joy from this tragic and as yet incomplete tale.

References:

http://www.theguardian.com/uk-news/2014/jul/02/father-trial-death-son-12-years-after-shaking-baby?CMP=twt_gu

Crown Court Bench Book & Specimen Directions – Third Edition 2010

Murder, Manslaughter & Infanticide – Law Commission 2006

John Morton; onetime Archbishop of Canterbury and ultimately Lord Chancellor under Henry VII was quoted as saying: “If the subject is seen to live frugally, tell him because he is clearly a money saver of great ability, he can afford to give generously to the King. If, however, the subject lives a life of great extravagance, tell him he, too, can afford to give largely, the proof of his opulence being evident in his expenditure.”

Problems of infant-retino-dural haemorrhage with minimal exertional injury – AN Guthkelch (Houston Journal of Health Law & Policy ISSN 1534-7907)

 

 

Hannibal Lecter QC

St_Sebastian_3_MantegnaSt. Sebastian – Andrea Mantegna (1490)

Any University of London LLB student that has had the time and good fortune to get their head/s around (what was historically a core text for our First Year CLRI studies) Gearey et al.’s The Politics of The Common Law will be left in doubt that the law is inherently political and politics/politicians can somehow never escape the watchful eye of the Rule of Law.

Students or #fledglinglawyers that have never quite been able to grasp this as a concrete/pragmatic notion could do far worse than read Nick Davies account of the very recently concluded “trial of the century”:

http://www.theguardian.com/uk-news/2014/jun/25/-sp-phone-hacking-trial-rebekah-brooks-rupert-murdoch 

Brave investigative journalism aside (Davies is also author of Flat Earth News); it throws a very bright and erudite light on the often unexplored tension that exists between politics and the media and by default the legal system and the media. I won’t attempt to paraphrase, as it is a piece that deserves to be read and relished in its entirety; not the least for the Rolls Royce defence team analogue, the description of Timothy Langdale QC as “a model of old-school courtesy built around a core of steel” but ultimately for this paragraph in which he documents the slow unravelling of prosecution witness Eimar Cook:

“Cook told the jury she recalled a conversation at lunch in September 2005, when Brooks had not only warned her that her own phone might be hacked but had described the ease with which it could be done. Cook added that during the same lunch, she thought Brooks had discussed the famous incident when she had been arrested for assaulting her then partner, the actor Ross Kemp. Laidlaw gently pawed her into position, confirming without doubt the date of the lunch, challenging the strength of her memory until she insisted she was absolutely certain and then, like Hannibal Lecter in a horsehair wig, softly and courteously, he cut out her heart: the incident with Kemp had happened six weeks after the lunch. Her story could not possibly be right.”

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Mads Mikkelson – season 1 episode 10 Hannibal NBC 

The backdrop to this story; (Murdoch’s bid to acquire BSkyB; Coulson’s involvements with Cameron (and that’s another story for another day) and Brooks’ masterful positioning of herself as an “ally to the elite”) has to be studied and ultimately digested to be believed. Indeed with its baffling yet subtle complexities but nonetheless inherent elegance it is not that dissimilar (though of equally dubious origin) to some of the exquisite meals that are served up in any episode of Bryan Fuller’s Hannibal (NBC).

Incredibly; Murdoch’s News Corp, (in spite of phone-hacking related legal bills in excess of 270 million pounds since 2011) has actually made money from this realignment/restructuring with shares up more than 1% following the verdict (see Financial Times June 24th 2014: Hacking trial: Rupert Murdoch comes out on top despite legal bills).

So whilst 25th June was a “great day for red tops” (Sun’s headline: 25th June 2014), Essex boy Andy Coulson is facing a custodial sentence & one can’t help but be left wondering whether it was a great day for British justice or not. One thing that we can’t be left doubting (as Michael White quotes in “Why it’s OK to feel sorry for Andy Coulson”) the words of the old music hall songs never seem to fade:

“it’s the rich what gets the pleasure, it’s the poor what gets the blame”

Compared by her (Brooks’) pre-trial lawyer to St. Sebastian; this is one blogger and #fledglinglawyer that thinks that maybe sometimes you can stretch your analogues that little bit too far.

Where now; well probably off to prison for Mr. Coulson & back to business as usual (plus the memoir royalties) for Ms. Brooks; we’ve already considered Mr. Murdoch. For myself; as a long time boxing fan I have always relished the re-match; so I am personally praying for a retrial… my choice for prosecution counsel… no doubt would  have to be (after all the appropriate training and Bar Council validation was in place) none other than Hannibal Lecter QC; at least then it might be something approaching a fair fight.

“Great day for red tops”: http://www.thesun.co.uk/sol/homepage/news/5713997/rebekah-brooks-cleared-by-phone-hacking-trial.html

Flat Earth News by Nick Davies (Vintage/B00C6PAMBE)

Hacking trial: Rupert Murdoch comes out on top despite legal bills: http://www.ft.com/cms/s/0/85b4beae-ebc8-11e3-8cef-00144feabdc0.html#axzz35oIZxkRK

“Why it’s ok to feel sorry for Andy Coulson”: http://www.theguardian.com/uk-news/2014/jun/25/why-feel-sorry-andy-coulson

“A B C it’s easy as, 1 2 3…”

faceless crimes

http://islandrepublicofdan.blogspot.hk

I think it might be a generality, if not quite an universality, that most of us find the idea of faceless crime disturbing; whether it be the internet hacker that empties our bank account and/or steals our online identity, the pseudonym-ed “troll” that abuses and harasses via a variety of internet portals to the masked burglar or at worst bank robber. But this week brought news of a potentially even more disturbing trend (http://www.theguardian.com/commentisfree/2014/jun/05/britain-first-secret-trial-rights) as reports trickled through of Britain’s first ever potentially trial to be held (at the request of the prosecution) totally “in camera” (i.e. in secrecy; with non-disclosure of the defendants’ details and no media access).

At odds with the very fundamentals of the “rule of law”; it would not be a first.

Very questionable practice fell under the radar during the “height of the Northern Ireland” conflict (see “Trial of AB and CD part of creeping move towards secret justice” Guardian Thursday June 14th) with “what happens at Long Kesh stays at Long Kesh” being very much the flavour of the day, while 2005 and 2008 (with the trials of Salahuddin Amin and of Rangzieb Ahmed respectively) saw evidence being presented “in camera” (rather more accurately “off camera”!!!) to protect the identity of various secret service members in Pakistan whilst a very erudite & recent piece by Lord Phillips (http://www.lrb.co.uk/v36/n08/nicholas-phillips/closed-material) reminded us of some of the obfuscations surrounding the case of Wang Yam (R v Wang Yam [2008]).

But this case (which was to be known simply as R v AB & CD) threatened to take things to a whole new level; an entire trial was to be faceless, to be held “in camera” and therefore potentially to be publicly unaccountable; quite rightly it prompted outrage both within the legal profession:

(a) “disgraceful departure from recognised trial standards and an affront to the rule of law”

Baroness Helena Kennedy QC

and without:

“We submit that the orders made involve such a significant departure from the principle of open justice they are inconsistent with the rule of law and democratic accountability.”

Anthony Hudson (Guardian)

So much so that it was appealed and (as yesterday’s judgement confirmed) overturned with Lord Justice Gross, Mr Justice Simon and Mr Justice Burnett naming the two defendants (as Erol Incedal and Mounir Rarmoul-Bouhadjar) and declaring “that some of the opening speeches of the trial and the final verdicts could be held in open court”.

It was/is a landmark decision in that once sanctioned a very disturbing precedent would have been set and once you have ABC, well the rest is the stuff of Motown legend.

For details of the fascinating case of Wang Yam and the idea of “public interest immunity” see: http://theoldbailey.wordpress.com/2008/10/20/r-vs-wang-yam-2008-and-the-pii-certificate/

“A B C it’s easy as, 1 2 3…” from: ABC (Motown/1970) – Jackson 5 

“the wisdom of Salomon (v A Salomon & co. Ltd [1897] AC 22)…”

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Home

Perhaps not initially obvious but the Madagascan lemur & the common law of England & Cymru have far more in common than one might initially imagine. They are both essentially unique and utterly the outcome of being removed from certain Darwinian pressures on account of their geographic location and isolation.

In the case of the lemur; as a result of the land mass that we now call Madagascar splitting off from the Gondwana supercontinent some 165 million years ago (and India some 100 million years later) the resident lemurs were over time removed from the predatory pressures of the big cats and in their unique eco-system were able to become the wondrous and divergent species we see today. Common Law (as distinguished from European civil law) came about (on account of our island status) in a rather similar way allowing it to evolve (over approximately the last 1,000 years) into a system that though it has been exported and emulated has no direct legal equivalent; the net result being the wonder that is UK common case law.

This presents the #fledginglawyer with a bewildering and initially puzzling variation of “species” /cases much as must have been met by early primate anthropologists following Madagascar’s “discovery” by Diogo Dias on August 10th 1500 after he was blown off course on his way to India.

But after an initial sense of being overwhelmed the law student can start to revel and enjoy the wonders of their studies; and for me this always comes about by stumbling on cases that on first glance have little to recommend them yet on further analysis start to reveal narratives, stories and ultimately differences of opinion and character that only someone such as Charles Dickens (Bleak House 1853) might even begin to to apprehend let alone be able to capture and transmit; one such case for me is the seemingly humble case of Salomon v. Salomon [1897].

Now whether it’s appeal to me lies in location (my family were raised near Salomon’s Whitechapel boot/shoe-factory location); it’s subject matter (concerning company law as I prepare to sell one of my own businesses (http://dbstudios-shanghai.com) or perhaps the vast array of legal details and food for thought that it yields (with House of Lord opinions from no less than Halsbury LC) I think is of little import; I think what it provides is a perfect instance of why one should read cases, in full and from the original sources as opposed to relying on mycompanylaw.blogspot.com, lawteacher.net &/or wikipedia or other such derivative websites.

Use the latter and you will undoubtedly come to rote memorise that:

  • Salomon v Salomon – was formative in the establishment of “corporate personality”; consequently
  • creditors of an insolvent company cannot sue shareholders
  • & for the 2/1 student that this rolled over into the Interpretation Act 1978 etc.

220px-Lord_Halsbury_Vanity_Fair_8_November_1890

But (just as if you have never seen a “ball’ of lemurs at play) how much of the joy of common law is missed; as you fail to see the accusations and counter-accusations flying across the air of the high court, the court of the appeal and ultimately the House of Lords; come to appreciate both the meanness (witness the original shareholders’  agreement) yet business shrewdness of Salomon senior; taste the bitterness and sense of injustice that must have been flooding through Edmund Broderip as he tried to recoup his (all importantly subordinate) debenture until finally one feels the final drop of Halsbury’s guillotine like ruling (as he applies a very legally “literal” reading of the statute (in this instance The Companies Act 1862)) & we are informed that the “sole guide must be the statute itself”.

Whether Otto Kahn-Freud’s view of this case i.e that ultimately it was a “calamitous” ruling; (& certainly in recent cases (such as Pepper v Hart [1992] & Re Spectrum Plus Ltd [2005] there has been a view to a much more “purposive view” of legislation/statute interpretations); nonetheless how much poorer would we be for not having taken the time and trouble to understand how, why and where our current legal system comes from.

“The common law is a storehouse for worm tubs, ornamental broughams, snails in ginger beer bottles and fancy waistcoats, all of which would long since have returned to rust and rubbish had the cases which brought them into prominence been governed by some statute”

Sources: Salomon v A Salomon & Co Ltd [1897] AC 22/Pepper (Inspector of Taxes) v Hart [1992} UKHL 3/Re Spectrum Plus Ltd [2005] UKHL 41/Luke (1982)

 

“times they are a changin’…”

bob dylan

Come gather ’round people
Wherever you roam
And admit that the waters
Around you have grown
And accept it that soon
You’ll be drenched to the bone
If your time to you
Is worth savin’
Then you better start swimmin’
Or you’ll sink like a stone
For the times they are a-changin’.

If May 2014 has started as it means to go on it should prove to be quite some month; with two news stories catching my eye… 1st May 2014 marked an historic day with the first Radio 5 Live broadcast (& a fascinating interview with Lord Neuberger (current President of the Supreme Court)) from courts one and two of the UK Supreme Court. The interview is surprisingly candid for someone that apologised on at least more than one occasion for being “cagey” and touches on a variety of very current topics including Legal Aid, the “tension” (my choice of words) between the UK & the European courts and the current somewhat “embarrassing” (Victoria Derbyshire’s choice of words) socio-sexual admixture of the current Supreme Court (there being only one lady (in the form of Lady Hale) & no non-caucasians amongst the “Justices” of the Supreme Court).

Meanwhile only a day later Alexander Cameron QC (David’s elder brother; himself heading 3 Raymond Buildings (currently representing Rebekah Brooks)) made history by playing a seminal role in the “halting” of a huge Southwark Crown Court fraud trial primarily as a result of punishing cutbacks in Legal Aid (the net result being no defence barristers were willing to take on this immensely complex (46,000 pages of written evidence) case; the judge Anthony Leonard QC stating:

“I have taken into account that it is common ground between the parties that where the defendant is not at fault, in a case of this complexity the defendants could not receive a fair trial without advocates to represent them.”

With 7 similar cases in the pipeline (due to be heard before September 2015) the implications are very far reaching.

The Supreme Court first agreed to television coverage in July 2009; with Sky News Live (http://news.sky.com/info/supreme-court) beginning their broadcasts in May 2011. To listen to Victoria Derbyshire’s interview simply go to: http://www.bbc.co.uk/5live &/or for a more edited version download as a podcast at the iTunes store.

Law, Like Love

Auden8

“The first thing we do, let’s kill all the lawyers” 

Henry VI Part II

Most lawyers if asked for a quote from Wystan Hugh (usually shortened to WH) Auden’s body of work might run to “Law is The Law” but in fact the title of his 1939 poem is more correctly “Law, Like Love” and indeed perhaps no finer place to start one’s legal studies than with an acknowledgement or perhaps better put a realisation that in fact there exists far greater parallels between the “grey hospitals of human corruption” (as Piero Calamandrei described the courtrooms in his “A Eulogy of Judges”) & the beating of our hapless lovestruck hearts than one might initially imagine; & in this blog it seems likely that i will attempt to walk that most uncomfortable of ground between certainty (if such a thing exists) and the fumblings that only a fledgling lawyer (perhaps like a teenage suitor) can be allowed to indulge in and for that (indulgence) i shall remain eternally grateful.

I intend to explore cases, current legal topics and unfolding exam terror (as i fast approach the initial papers of my LLB) and at times may seem asinine (as i develop a series of mnemonics to help with case name remembrance) but i yet hope at times challenging as i attempt (in an initially most rudimentary of styles) to highlight and hopefully to a degree illuminate some current areas of dissonance and tension in the (predominantly) UK lego-political landscape as i work my way through the current LLB (International Programme) syllabus.

Writing legalese; & hopefully more importantly going beyond that legalese to discuss these matters clearly yet eruditely is no small challenge & hence the choice of a blog that will literally give me a (near) daily chance to hone these skills; rather like public speaking, these are skills that i can see need a great deal of practice and if the first day i attempt this is some sweaty London afternoon in or around May/June 2015 (when i first sit my Year 1 papers) i figure i may well live to regret that decision.

But for now as the sun rises in Shanghai & breakfast call i will leave the closing words to Mr. Auden himself:

Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.

WH Auden: Law, Like Love

source/s: Piero Calamandrei “A Eulogy of Judges” (Princeton University Press 1942, repr. 1992), chap. XII, p. 95