“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)…”

images

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