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Tuesday, May 31, 2011

Injunction-breakers v privacy-brokers: the fight for free speech

Published in Halsbury's Law Exchange here.

When writing about superinjunctions in April, I offered the observation (for which I claim no originality or great insight) that the internet might well render the law of privacy unenforceable. Needless to say, something close to that situation has since come to pass, and there has been much discussion on the legal blogosphere on the subject.

I must admit to some mixed feelings about the injunction saga. Deliberately flouting court orders, whether it be by private citizens using the internet or by attention-seeking MPs invoking Parliamentary privilege, is seriously damaging to the rule of law. Spreading rumours about injunctions without even knowing if they are true or not (or perhaps deliberately in the knowledge that they are false) is also reprehensible behaviour by any measure.

In a country where political speech at least remains free, the internet-wielding private citizens ought to be campaigning for a change in the law if they happen to disagree with it, not deliberately undermining it. MPs as lawmakers have even less excuse.

One argument doing the rounds of the popular press has it that privacy laws are exclusively judge-made, and are somehow less defensible as a result.

In response I would say, first, that present privacy laws derive from art 8 of the European Convention on Human Rights which, needless to say, was brought into UK law by an Act of Parliament, so all the law-making has been done against that background. Moreover, Strasbourg was already some way down the line of current art 8 jurisprudence, so it is fair to say we were warned. But whether the present law of privacy is judge-made or not is beside the point: the law is still the law, and if it is deliberately flouted via the internet or Parliamentary privilege the rule of law is undermined.

Secondly, even if Parliament were to pass legislation on the subject, it would have the same enforcement problems as the courts for the same reasons – it would be largely unenforceable against overseas bloggers and tweeters, and MPs relying on art 9 of the 1689 Bill of Rights (although presumably the latter might be a little more restrained in their use of Parliamentary privilege if they thought that privacy laws carried Parliament’s approbation). Moreover, in passing any legislation Parliament would be constrained to act within the margin of appreciation afforded by Strasbourg.

Leaving aside the practical difficulties, it does seem to me that in balancing privacy with freedom of expression too much weight has been given to the former. I do think it would be wrong to allow publication of photographs or video footage of someone’s private activities, and for that reason the courts reached the right decision in the Mosley case. But I remain unconvinced that that degree of privacy should extend to suppress a textual report of the fact of someone committing adultery.

Injunctions are serious matters: any breach may result in a sentence of imprisonment. The usual ground advanced in their support is that children of the injunction-seeker should be protected. Yet murderers and rapists do not qualify for name suppression even if they have children, so the argument that adulterers should is on flimsy grounds. The criminal law is the state’s ultimate weapon against its own citizens and it should be used sparingly. Tell-tales and gossip-mongers are generally not admirable people but that should not render them criminals, which is what injunction-breakers will become. Moreover, the courts are a scarce, expensive and overworked public resource and there are many more deserving litigants waiting to have their cases heard than embarrassed footballers and other b-list celebrities.

I suspect self regulation, for the mainstream media and for news and legal bloggers who wish to be taken seriously, will be more effective. The courts should be used to award damages against those who impinge privacy in cases such as Mosley’s. The distinction between breaches which do warrant the law’s intervention (such as Mosley’s) and those which do not (straightforward kiss and tell tittle-tattle) would have to be worked out on a case-by-case basis – even if Parliament did legislate on the subject, for then there would be litigation on the interpretation of that legislation. A starting point might be to consider the US law on the subject, whereby those deemed to be public figures rarely stand a chance of suppressing the freedom of the press.

Those who do not like what has been said about them should either sue for defamation – if the statement wasn’t true – or maintain what used to be called a dignified silence. Or, dare one even suggest it, not give the tabloids ammunition in the first place …

Coda: for further reading this morning’s roundup on the UKHR Blog is a good place to start.

Midnight in the Garden of Good and Evil (1997) Directed by Clint Eastwood

I like to be contrary. Also, I like to play devil's advocate. I like a good argument, even if I'm not really believing what I'm arguing for. So for quite a few decades now I've been seriously into Clint Eastwood movies. This has pissed off various friends over the years. It's very hard for people to imagine, Mr Eastwood is nowadays very critically approved of, even a genius to some, but at one time, Clint had the critical credibility of say, Arnold Schwarzenegger. Yes, that's right, that bad. Since winning the Best Director Oscar for Unforgiven, Eastwood as a film maker has seen his work, rightly I feel, reappraised. There are the classics (Spaghetti Westerns, Unforgiven, Mystic River etc), the worthy (Bird, Honkytonk Man, Letters From Iwo Jima etc) and the terrible (Firefox, Pink Cadillac, Every Which Way But Loose etc). You could place Midnight  In The Garden Of Good & Evil in the same category as the terrible. This film has a stinker reputation. What was I mentioning about contrary?

It's my second time round with Midnight....and this time I enjoyed the very casual direction, the laid back atmosphere, and unfussy portrait of Savannah's eccentrics. The wit of the script seemed well pitched and not overdone. John Cusack was not so smarmy and annoying as he often is, this time approaching some of the cool he thinks he oozes. Kevin Spacey still sports a ridiculous fake mustache and is the real let down here. He just seems wooden. However,  add a decent Jude Law cameo (pretending to be Jimmy Dean), a strong supporting role from Clint's daughter Alison and the performances are uniformly good. But I forgot to mention the real showstopper : Lady Chablis. The drag queen Lady Chablis plays herself, a comedienne at one of Savannah's club's. Chablis pretty much has all the best lines and steals the picture, it's worth watching Midnight...for Chablis alone.

This true tale of one of Savannah's leading socialites James Williamson, on trial for murdering his gay lover, again, as so often with his cinema, defies Eastwood's usual conservative profile. Yes, the trial section of the film really is rather ponderous, but Eastwood manages to focus on other characters and incidents, which perhaps takes away some of the trial's tension, but does make the film more interesting. So, in the end, Midnight In The Garden Of Good And Evil was not as awful as I expected or even remember. It works, in a lazy-bed-ridden-with-illness kind of way. No masterpiece, and definitely faulty, this is still unusual and out of left-field for most Hollywood fare. I can see its reputation growing over the years.

Kevin Spacey is always an intelligent crook in the 90s movies. John Cusack is usually boring. Jude Law begins his Hollywood career playing the beautiful reckless type. Midnight In The Garden Of Good and Evil is a compilation of clichés, but it is put together from so many pieces that as a whole it's pretty good entertainment.

There is an old-fashioned dryness in the storytelling. The setting in Savannah is overly romantic, especially as it concentrates mostly on rich people. Lady Chablis steals the show any time she is on screen, although you could ask why is she given so much time when she doesn't really advance the plot? But at least Lady Chablis adds a bit of humor and lightness between the dragging court scenes.

To add to the collection of clichés, there is a witch woman called Minerva walking around Savannah night and day. She provides a layer of magic, the good and evil. I like her. Alison Eastwood, Clint Eastwood's daughter plays the love interest. I don't know who to blame, the dad behind the camera or herself, but she is very uninteresting. Had I not been told, I would have never guessed that this was a Clint Eastwood film.

Monday, May 30, 2011

Efforts continue to ensure ratification of US-Panama FTA

The Panamanian Vice-President Varela met Feb. 11, 2011, USTR Ron Kirk trying to advance ratification of the Panama Free Trade Agreement.



Economía y Negocios

2011 será decisivo en las relaciones comerciales de Panamá

EU promete intensificar ratificación del TPC

Quedan temas por resolver para Estados Unidos, como la protección de derechos laborales.

VISIÓN. Kevin Brady, republicano de Texas, dijo que Panamá ha hecho más de lo que le ha pedido EU para lograr la ratificación del acuerdo comercial. BLOOMBERG/Joe Marquette1508875

Betty Brannan Jaén

El presidente Barack Obama ha dado instrucciones de que se "intensifique" el esfuerzo por resolver temas pendientes con Panamá en torno al tratado de promoción comercial (TPC), con miras a proceder este año con la ratificación del acuerdo, afirmó ayer Ron Kirk, representante comercial del Gobierno estadounidense.

"Les puedo decir hoy que el Presidente me ha dirigido a que inmediatamente intensifique el diálogo con Colombia y Panamá, con el objetivo de resolver los temas pendientes tan pronto como sea posible este año, e inmediatamente después llevar esos acuerdos al Congreso para su consideración", declaró Kirk durante una audiencia ante el Comité de Medios y Árbitros de la Cámara de Representantes.

Sin embargo, Kirk precisó que "quedan temas serios" por resolver con ambos países. "Algunos de esos temas se dirigen a valores e intereses básicos para Estados Unidos, como la protección de derechos laborales. Cualquier horario [para ratificar los acuerdos] dependerá de la resolución exitosa de estos temas".

Kirk dejó claro que se espera más de Panamá, pero no precisó detalles. Dijo: "Colombia y Panamá han comenzado a tomar algunos pasos importantes, pero queda más por hacer... Es crítico que ellos vengan a la mesa preparados a tomar acciones significativas".

El presidente del comité, Dave Camp (republicano de Michigan), criticó que no se han definido exactamente cuáles son los temas pendientes con Panamá y Colombia. En la misma línea, Kevin Brady (republicano de Texas) sostuvo que Colombia y Panamá "no solamente han hecho todo lo que hemos pedido, sino que se han ido mucho más lejos". Él y otros republicanos en el comité presionaron a Kirk sobre la demora en proceder con la ratificación de estos dos acuerdos.

Del lado demócrata, el congresista Sander Levin (de Michigan) señaló que los aspectos sin resolverse con Panamá incluyen temas laborales y fiscales. Sobre ambos aspectos, dijo, Panamá tiene medidas ante la Asamblea que no se han aprobado todavía. Otro congresista demócrata, Jim McDermott (de Washington), mencionó su preocupación sobre "el estatus de Panamá como paraíso fiscal".

Mientras tanto, Adam Isaacson, analista con el Washington Office on Latin America, opinó el martes en una entrevista con CNN que lo que tiene estancado al TPC en Washington es una preocupación por temas laborales y corrupción en Panamá.

Ayer, en declaraciones a este diario, Isaacson aclaró que su referencia a "corrupción" tuvo que ver más bien con el secreto bancario en Panamá. Sobre ambos temas –derechos laborales y secreto bancario—Isaacson observó que hay medidas pendientes ante la Asamblea Nacional.

Kirk genera optimismo

Las declaraciones del representante comercial Ron Kirk generaron un ambiente de optimismo en Panamá.

"Es positivo, un indicio muy favorable de parte de la administración Obama, por primera vez se señala de manera pública presentar el TPC con Panamá", dijo Antonio Fletcher, presidente del Consejo Nacional de la Empresa Privada.

Estif Aparicio, ex jefe negociador comercial, también calificó de positivo que se haya dado fecha o rango temporal para la ratificación del acuerdo. "En un país como EU no se dan declaraciones de este tipo sin que se tenga la certeza de que se van a hacer las gestiones", agregó. El ministro de Comercio Roberto Henríquez reiteró que se ha cumplido con los cambios laborales y fiscales solicitados por EU.


Ordenan que se ratifique el TPC

Kirk se reunirá mañana con el canciller panameño Juan Carlos Varela, quien ha expresado su expectativa de que el tratado avance en el primer trimestre de 2011.

MANCUERNA. Ron Kirk ha acompañado al presidente Obama en varias decisiones importantes de carácter comercial. AFP/Jewel Samad1508647


El presidente Barack Obama ordenó resolver este año los temas pendientes para ratificar los tratados de libre comercio con Colombia y Panamá, dijo ayer el representante comercial del Gobierno estadounidense.

Al comparecer ante la comisión de medios y arbitrios de la cámara baja, Ron Kirk afirmó que Estados Unidos gestionará la ratificación de los tratados de libre comercio con Colombia y Panamá solamente tras aclarar objeciones relacionadas con "principios e intereses estadounidenses fundamentales".

Es la primera vez que el Gobierno estadounidense menciona una fecha tentativa para ratificar los tratados de libre comercio con Colombia y Panamá, pendientes desde hace un lustro.

La fecha coincide con la solicitud planteada el mes pasado por el vicepresidente colombiano Angelino Garzón a su colega estadounidense Joe Biden de buscar una aprobación del tratado de libre comercio en 2011.

La mayoría republicana en el Congreso y la Cámara de Comercio estadounidense ha ejercido una intensa presión para que ambos tratados sean considerados junto con el de Corea del Sur, que Washington espera enviar al congreso en las próximas semanas para sancionarlo antes de mediados de año.

El presidente del comité de Medios y Arbitrios, el republicano Dave Camp, dijo a Kirk que "esperábamos declaraciones como estas hace dos años, estamos perdiendo participación de mercado en esos países. Necesitamos medidas concretas" para aprobar estos tratados.

Kirk respondió que su despacho enviará la semana próxima a Colombia una misión para evaluar la situación de derechos laborales, y ante una pregunta dijo no saber si él integrará la misión.

Las preocupaciones sobre la tasa anual de sindicalistas colombianos asesinados ha sido uno de los principales obstáculos al tratado en el Congreso.

En cuanto a Panamá, Kirk dijo que quedan por resolver dos objeciones a sus leyes laborales, pero no especificó.

El Gobierno panameño espera la aprobación legislativa este mes de proyectos de ley para garantizar el derecho a sindicalizarse en empresas que no tengan dos años de existencia y en empresas activas en zonas económicas especiales.

No quedó claro tras la intervención de Kirk si Washington ha desistido de una tercera observación laboral a Panamá: reducir de 40 a 20 la cantidad requerida de trabajadores para fundar un sindicato.

Kirk se reunirá hoy con el vicepresidente panameño Juan Carlos Varela, quien ha expresado su expectativa de que el tratado avance en el primer trimestre de 2011 porque asegura haber cumplido todas las condiciones planteadas por la Casa Blanca en junio de 2009, incluyendo un tratado de intercambio de información fiscal suscrito en noviembre.

"Cualquier avance dependerá de la aclaración exitosa de estos temas. Colombia y Panamá han comenzado a adoptar medidas importantes, pero necesitan hacer más. Para lograr avances, es vital que (Colombia y Panamá) vengan a la mesa de negociaciones preparados para adoptar medidas significativas adicionales", dijo Kirk sobre ambos tratados.

Who am I kidding?

I hate the ruffles.  They're coming off.  Now.  

Sunday, May 29, 2011

Slow going

So I'm working on a blouse.  I gave you a hint here.  It's the recycled skirt, which I am aiming to turn into something like this, a ruffled blouse from the April, 2010 issue of Burda Magazine.

Except that it will only have a single ruffle and it will have a button & loop centre front closing instead of a side zipper.

The fabric is blouse-weight Thai silk - not the floaty chiffon that Burda used for their version.  So the ruffle is a little stiffer.  I could leave it off.  However, then I'd have less camouflage for this.

For what?  I hear you ask.  Well, for this:

They are not doing anything lewd, but there they are.

It's slow going because I'm not quite sure about them.  Or the ruffle.

Friday, May 27, 2011

Capote (2005) Directed by Bennett Miller

For artists life is material. Life is the source from where to steal for art. The dilemma is to decide where to draw the line. Do we have to plow deep in our personal lives to create material, or should we observe other people's stories and use them? Should we befriend and care for people if they seem like good material? Do we become responsible for their well-being or can we just follow their path and report elsewhere?

Truman Capote wrote a novel about real people and I watched a movie about Capote writing that book. Each act fictionalizes reality. The onion is peeled and each layer that's taken off becomes narrative. In the end, here I am feeling all kinds of feelings about the living artist, Truman, and his choices. As if what I just said about fictionalization went over my own head.

Capote's In Cold Blood became a best-seller once it was released in 1966. He needed to see the two killers of his 'story' hanged for him to be able to write the ending. If Capote, the film, is to be believed Truman was very calculated in his approach to the murderers. He helped them when it helped him and left them alone when he got tired of waiting to be able to write his ending. Capote pictures its protagonist as an unlikable self-obsessed man, who has an almost psychopathic ability to deal with the murderers and his own friends (Harper Lee and his boyfriend) without real emotional involvement. I wonder if it is Hollywood simplifying the character so as not to confuse the audience. How ethical is that then?

Nick :
I first came across Truman Capote from a record sleeve. Yes, he adorned the front cover of The Smiths single "The Boy With The Thorne In His Side" It sparked some interest in Capote. I read In Cold Blood. After Capote died I read his trashy unfinished book Answered Prayers (where he lays into his various literary friends). Yes, Capote was neither likeable nor reliable. That such a figure could become a literary giant in the ultra conservative 1950's is astonishing. Morrissey could have been referring to Capote directly with the title of the single Capote adorned. The real life killers of In Cold Blood would not die, and Capote could not finish his masterpiece. So, the killers Smith and Hickock became the thorns in his side.

Capote deals with how Truman wrote In Cold Blood, the story of two young men who murder a family of four in a small Kansas community in 1959.  Philip Seymour Hoffman plays Capote, it's an impersonation performance and it's immaculate (Hoffman won an Oscar for his efforts). We watch Truman befriend everyone in the Kansas town where the murders happened, the police chief and his wife, the local farmers and especially one of the two killers, Perry Smith. Dutifully accompanied by Harper Lee (an excellent Catherine Keener), Capote patches together a non-fiction novel of the grizzly events. It takes him years. Great claims are made for In Cold Blood as changing the face of the American novel whilst Truman is portrayed as a user of people to further his career.

And there lies the rub with Capote the film. Excellently acted, well written and directed, Capote engages. But at it's heart, it can't decide weather it's trying to salvage Capote's reputation as the great American author, or reveal his true nature as a bit of a shit. Even with his close-relationship to the killer Perry Smith, there is an overbearing sense of manipulation in Truman's actions, we don't really feel his sadness towrds Perry's death.  I re-read In Cold Blood some 10 years ago, it's a good book, nothing more. Harper Lee's To Kill A Mockingbird (constantly mocked throughout the fim) feels more induring to me. Even Capote's Breakfast At Tiffany's novella is nowadays more affectionately known as Audrey Hepburn's iconic moment. As we see in various scenes, Truman Capote's sharp toungue and cruel ridicule of the New York literary glitterati has caught up with his reputation. Could it be that Truman just pissed too many people off?

Wednesday, May 25, 2011

IRS announces August 31, 2011 Offshore Voluntary Disclosure Initiative (OVDI) deadline

U.S. citizens or foreigners who are green-card holders and have never reported that offshore account, corporation or private foundation they control or never bothered to dissolve, now have a second chance to come into the system.

Depending on each individual case, forms which should been filed are :
- Form 1040, Schedule B, Part III – Foreign Accounts and Trusts
- TD F 90-22.1 (Report of Foreign Bank and Financial Account Information)
- Form 5471 (Information Return of U.S. Person with Respect to Certain Foreign Corporations)
- Form 5472 (Information Return of a 25% Foreign-Owned U.S. Corporation or a Foreign Corporation Engaged in a U.S. Trade or Business).

On February 8, 2011, the Internal Revenue Service announced a special voluntary disclosure initiative designed to bring offshore money back into the U.S. tax system and help people with undisclosed income from hidden offshore accounts get current with their taxes. The new voluntary disclosure initiative will be available through Aug. 31, 2011.
The 2011 initiative has a higher penalty rate than the IRS's previous voluntary disclosure program, which ended on Oct. 15, 2009, but offers clear benefits to encourage taxpayers to disclose foreign accounts now rather than risk IRS detec-tion and possible criminal prosecution. In addition, the 2011 initiative includes new guidelines to provide fairness to people with smaller amounts of undisclosed assets or unusual situations.
A full news release about the 2011 OVDI may be found here: http://www.irs.gov/newsroom/article/0,,id=235695,00.html?portlet=7. More information, including how to participate, may be found here: http://www.irs.gov/newsroom/article/0,,id=234900,00.html.

How to Make a Voluntary Disclosure Under the 2011 OVDI

The 2011 Offshore Voluntary Disclosure Initiative (OVDI) is offered to those taxpayers with offshore accounts or assets. Please follow the new process outlined below.


Taxpayers or representatives may fax to the IRS Criminal Investigation Lead Development Center at (215) 861-3050 the taxpayers' name, date of birth, social security number and address (if the taxpayer is represented by a tax professional, an executed power of attorney must be included).
IRS Criminal Investigation will then notify taxpayers or their representatives via fax whether or not they have been cleared to make a voluntary disclosure using the Offshore Voluntary Disclosures Letter. Taxpayers or representatives with questions regarding the pre-clearance can call (215) 861-3759 or contact their nearest Criminal Investigation Office.
Note: Pre-clearance does not guarantee a taxpayer acceptance into the 2011 OVDI. Taxpayers must truthfully, timely, and completely comply with all provisions of the 2011 Offshore Voluntary Disclosures Initiative.

Offshore Voluntary Disclosure Letter

If the taxpayer chooses to submit a pre-clearance request, after the taxpayer receives a pre-clearance notification, the taxpayer will have 30 days from receipt of the fax notification to complete the Offshore Voluntary Disclosures Letter. If the taxpayer chooses to bypass the pre-clearance process, the taxpayer must mail the Offshore Voluntary Disclosures Letter to the following address:

Internal Revenue Service
Criminal Investigation
ATTN: Offshore Voluntary Disclosure Coordinator
Philadelphia Lead Development Center
600 Arch Street, Room 6406
Philadelphia, PA 19106

The IRS will review the offshore Voluntary Disclosures Letters and notify the taxpayer or representative by mail whether the voluntary disclosure has been preliminarily accepted or declined.

Complete Voluntary Disclosure Package

Once the voluntary disclosure has been preliminarily accepted, the taxpayer should send the full voluntary disclosure package no later than August 31, 2011 to:

Internal Revenue Service
3651 S. I H 35 Stop 4301 AUSC
Austin, TX 78741
ATTN: 2011 Offshore Voluntary Disclosure Initiative

Taxpayers wishing to make a voluntary disclosure that is not covered under this offshore initiative should contact their local IRS Criminal Investigation (CI) office to speak with a criminal investigator.

Tax administration questions such as Where is My Refund or Where Do I File can be addressed by other IRS offices.

Tuesday, May 24, 2011

Coming Home (1978) Directed by Hal Ashby

Hal Ashby is often regarded as the good guy from the New Hollywood era. Much loved by actors, his modest hippie temperament ultimately turning to drug dependency; he is one of the casualties of  New Hollywood. Bruce Dern, who stars in Coming Home, said: "What happened to Hal Ashby, both what he did to himself and what they did to him, was as repulsive as anything I've seen in my forty years of the industry." Coming Home could be the last big hit from New Hollywood, its many problems as a film, a great example why the director-led New Hollywood era came to an end.

Coming Home feels like a rotting corpse. It's smug, indulgent, self-satisfied. By 1978 punk was happening and the 1960's reverence on show in Coming Home must have seemed like arch sentimentality. It really feels like that now. Sure, Coming Home is really well acted. Yes, it makes a comment on the wastefulness of the Vietnam War. But by this time, Hollywood and America itself had really discussed and considered the Vietnam War. As similar rallying calls and comment on this war, both the later Apocalypse Now! and the same year The Deer Hunter would show more ambition and edge. Offering no new perspective or insight, all Coming Home leaves us with is the romance. Jane Fonda and John Voight have chemistry for sure. But you never find it believable why Fonda's liberated nurse would stay with her Vietnam returning husband (an ever reliable Dern). It's also inconceivable that Voight's character would change so conveniently from bitter paralyzed war veteran to all round good guy and the sensitive spurned lover.

Coming Home has its great moments. Unfortunately, Ashby reduces the tension on screen with a soundtrack of great hits of the era (Stones, Beatles) constantly playing in the background like muzak, often unrelated to the scene. I'll remember Ashby for The Last Detail and Shampoo. Give me Jaws and Star Wars over this any day. Coming Home is well-meaning, but ultimately fails with its simplified and sentimental portrait of why America didn't deal with its war casualties with more empathy.

Coming Home is a film I wanted to see because it is a 70s movie, and it has Jane Fonda in it. The Director Hal Ashby is also interesting. I had forgotten that New Hollywood is not always a synonym for subversive or great. Coming Home turned out to be strangely conservative and coy. At times it reminded me of Forrest Gump (1994), which was my first cinematic encounter with the Vietnam War.

Yet, on entertainment level, I was quite content. I was well entertained actually: The angry and dangerous war veteran (John Voight) turns into an adorable lover and a campaigner for peace. The stifled and overly sweet Sally (Jane Fonda) is liberated from the constraints of a boring marriage. Sally's husband (Bruce Dern), returns from Vietnam the same arrogant and ignorant person he was when he went there, although now he is traumatized. When he finds out Sally has been seeing one of the veterans from the recovery hospital (where she had gone to volunteer), the husband threatens to murder someone or himself. A little tense, yes, but not really, because Hal Ashby has added a pop soundtrack on every scene of the film. Even while intimate dialogue is happening, there is always a Rolling Stones song or a Beatles tune playing in the background at a disturbing volume.

Jane Fonda had been vocally against the Vietnam War from the early 1970s onwards. After her visit to Vietnam in 1972 she was dubbed Hanoi Jane and deemed unpatriotic by the US press. In light of her activist past it is not surprising that she said yes to Coming Home, but it is baffling that the film handled the issue so lightly.

The need for journalists to attend court

Shortened version published in Halsbury's Law Exchange here.

Adam Wagner of the UK Human Rights Blog has written about the controversy surrounding Christopher Booker’s reporting of a family law case. Booker’s original article gave rise to much comment for and against, including a response by the court itself. Booker himself then dispatched some thunderbolts back, and Wagner has responded in turn albeit in a somewhat more measured tone.

I do not wish to pass any comment on the actual case which Booker’s original article concerned, since I have not read about it in any detail. He may be wholly right, wholly wrong or something in between. Instead, I wish to comment on the general point of interest in Wagner’s original article, namely whether it is necessary in order to report proceedings for a reporter actually to be present in court during the hearing before commenting on a particular case.

The answer, inevitably, is that “it depends”. If a journalist is simply reporting the ruling in the case, then a properly written judgment should be able to be understood (by an appropriately qualified person) without reference to any other documents, let alone the hearing itself.

If on the other hand a reporter wishes to comment on any findings of fact, then they would be in a much stronger position if they attended the hearing and observed the witnesses – for precisely the same reasons that the Court of Appeal is unwilling to overturn first instance findings of fact.

If a reporter is unable to attend, or only becomes aware of the story after the event, then, as Wagner points out, it is usually possible to obtain transcripts and other records. Though an imperfect record (a witness”s demeanour can say as much as their words) such documents would certainly put the reporter in a stronger position than merely conducting a rehearing of their own with the disappointed party, which is the nub of much of the criticism that has been levelled at Booker.

It cannot therefore be seriously disputed that reporters will gain a much better picture of findings of fact by attending hearings. Again, as Wagner states, there are nothing like the impediments to doing so that Booker seems to imagine – the rule of open justice is one of the most fundamental in the common law. In 1913 the House of Lords stated that: “In public trial is to be found on the whole the best security for the pure, impartial, and efficient administration of justice, and the best means of winning for it public confidence and respect” (Scott v Scott [1911-13] All ER Rep 1). Nowadays that rule is bolstered by the fair trial requirements of art 6 of the European Convention on Human Rights, though given how well entrenched it already was in the common law, I doubt there has been any practical difference.

Of course, Booker would respond that the family courts are not sufficiently open to the public. But they are much more open than before, and the press can usually challenge a ruling about a case or particular evidence being heard in private.

Wagner observes that journalists attending court will have to sit through multiple delays and many days of boring, irrelevant material. This is true, although at least nowadays with modern communication devices they have less of an excuse not to be doing something worthwhile while they sit there. Nevertheless, Wagner cautions that they may be tempted to sex up stories to justify the time committed.

Here I am reminded of Robert Winder's superb travelogue of a cricket correspondent, Hell For Leather: a modern cricket journey, where he describes his experiences on the subcontinent covering the 1996 World Cup. The goal of all the hacks was to secure a headline. The goal of the players and management was to prevent them from doing so. Therefore at every press conference they would stoically meet every question with an answer as bland as an in-flight menu. This presented no problem to the hacks, however, who were well practiced in the art of turning a side remark about a player recovering from a minor injury into a screaming headline about a player getting slammed by the coach for being ill-prepared.

The problem facing the hacks, however, was that if they missed a “story” being run by one of their rivals, they would receive an angry call from their editor demanding some equivalent copy, and given the time difference in the subcontinent the call would usually come in the middle of the night. The more experienced hacks wistfully recalled tours to the West Indies, where the time difference and the now ancient state of the technology meant that nothing could be altered beyond 6pm local time, leaving the hacks to while away the hours by the hotel pool free from any inconvenient work-related interruptions.

Ever ingenious, the solution of the hacks on Winder's tour was to band together and agree amongst themselves what the story of the day was to be, and then simply compose their own variations on the theme. It meant fewer scoops but much better sleep.

Perhaps court reporters might be tempted into the same thing, though in my experience court reporters are a diligent group who of course make mistakes on occasion (like everyone else) but by and large aim for accuracy even if they choose to emphasise an aspect of the case that lawyers would consider trivial or irrelevant. But the short answer to improper journalism is better editorial standards, not less journalism, and one should not discourage journalists from covering hearings – or anything else – because of a risk that they might get bored and invent something to justify their time.

It is, therefore, a cause for regret that fewer journalists may be found in court nowadays, all the more so if it is simply because they don’t feel it worth the effort. The rule of open justice exists for a reason – justice has to be seen to be done. The presence in court of journalists is a tangible contribution in this respect. Further, as I have written before: “The mere presence of a journalist in court ensures a form of watchdog for anything untoward that might happen during the proceedings. Judges who fall asleep, counsel who lose their temper, jurors who behave improperly or any other examples of human failings will … be brought to book in the court of public opinion accordingly.”

Monday, May 23, 2011

Protecting Against Internal Theft at Museums and Cultural Institutions

Earlier this month a grand jury charged Laura Phillips, the former treasurer of the Alabama Museum Association, with felony theft. The indictment alleged that she stole from the association. In February, a grand jury also charged her with stealing over $57,504 from the Carnegie Visual Arts Center where she was director. Such allegations should remind institutions to maintain vigilance over their purse strings.

From my experience as a former prosecutor and as an attorney dealing with nonprofits, the vast majority of people who work in museums and cultural institutions are honest and hardworking. When there is a problem with theft of funds, the crime typically is committed by someone inside the organization. A person who works with cash and who remains unsupervised may be tempted to "borrow" funds to cover personal expenses. As time goes by, the amount of funds stolen can grow.
Some tips to reduce internal theft include:
  • ensuring board oversight of operations,
  • creating an audit committee,
  • involving at least two officers in money transactions,
  • watching unusual behavior of the person who handles money (e.g. frequently staying late at the office to perform money transactions),
  • imposing a term limit on the treasurer's position.
Good risk management involves taking time to review organizational best practices and policies that protect against internal theft.

Friday, May 20, 2011

The future of legal blogging

Published on Halsbury's Law Exchange here.

Last night 1 Crown Office Row hosted an event at the Law Society on the future of legal blogging. I must at the outset thank the organisers both for the high standard of speakers and for the hospitality, although the excellence of the latter may, I fear, have adversely affected my memory of the former.

Blogging is an activity which could be tailor-made for lawyers, who almost by definition are people who enjoy both the English language and the activity of getting on soapboxes.. In fact, the only real surprise about legal blogging is that there isn’t more of it, but then I suppose lawyers also enjoy making money, and blogs tend not to do that.

One of the first questions put to the panel was whether legal blogging is an example of the old philosophical conundrum of a tree falling in the forest where there is no-one to hear it: is it making any sound, or merely a vibration?

To my mind, the answer is that while there are no doubt many individual blogs with no readership beyond the individual author, legal blogging as a whole is indeed making some tangible noise. An example was given last night of the Simon Singh libel case. Dr Singh had close support from some bloggers, and the case as a whole received some attendant publicity. I would observe that the blogs would have had no effect on the actual outcome of the litigation, although attention drawn to the preposterous nature of the claimant’s action – which constituted a blight on free speech, a blow to consumer information and a retardant to scientific advancement – has to be a good thing.

The more general point made was that blogs provide legal information and dissemination in a format that is free, easily found and, in the case of the better-written, more understandable than traditional sources of legal information. They also serve as a forum for public debate.

One intriguing aspect of the blogosphere is that it is something close to a perfect free market in ideas – there are few barriers to entry for suppliers, almost no cost to consumers and, whilst there is some regulation of UK-based bloggers, the nature of the internet is such that almost any regulation might be rendered ineffective, as I wrote about in the context of superinjunctions.

The last of those points poses some serious issues for bloggers. No doubt there was a certain amount of schadenfreude when Fred Goodwin’s injunction was effectively defeated by a combination of the very old in the form of the protection of free speech in Parliament guaranteed by Art 9 of the 1689 Bill of Rights, and the very new in the form of the effective invulnerability of overseas bloggers (some of whom likened Goodwin’s attempts to preserve his public image to Mr Guggenheim putting on his dinner jacket to go down with the ship, though with the opposite of Guggenheim’s gentlemanly and heroic connotations). Yet readers will need no reminding of the severe injustice that scurrilous information might cause – mistrials in serious criminal cases, or career-ending defamation, for a start – which even the most ardent free speech advocates would regret. It is fair to say, therefore, that the future of injunctions contempt of court, open justice and confidential information in the Twitter age has yet to be decided (see here for Lord Neuberger’s report on super-injunctions, published this morning).

An interesting discussion also took place on what will happen to traditional journalism in the face of legions of blogs. It was pointed out that online journalists enjoy freedom from the rigid word counts and publishing delays which print publications necessarily involve. They also have the ability to correct errors in the original copy and can insert necessary links (links being stressed last night as an essential tool for substantiating arguments and providing further reading – clear benefits over print journalism).

The consensus seemed to be that, whilst the benefits of near-instantaneous tweets of news and comment are undoubted, there will always be a place for more considered analysis by professional journalists and commentators a few days after the event. Inevitably, however, the presence of high quality free comment on legal affairs on the blogosphere will affect the value of legal journalism in monetary terms.

The hope was expressed that a meritocratic system would separate blogging wheat from chaff. Inevitably the most popular bloggers – as in most walks of life – will not necessarily be the best in terms of quality; but I would imagine that good blogs would become known within short order.

I would agree that the marketplace of ideas will be an effective regulator of legal blogs. Existing professional duties will be an effective restraint on blogs written by practising lawyers. For most of the mainstream media, the Press Complaints Commission jurisdiction now extends to blogs. Perhaps other bloggers will in time form voluntary codes of conduct of a similar nature, as a way of adding some authority or otherwise assuring readers.

Legal blogging, whatever its flaws, ensures more debate about the rules that govern us, and keeps better scrutiny on those who make and enforce them. Having more of those benefits seems a pretty good thing for the future.

The Brothers Bloom (2008) Directed by Rian Johnson

Car boot sale. I picked up The Brothers Bloom at a sale in someone's back yard. 2e. I've had some bargains over the years (especially some incredibly rare vinyl) and I love the idea of rummaging through people's cast-offs. Unfortunately, other people's cast-offs is an apt description for The Brothers Bloom. It's well made, but we've been here before.

This could be a homage to the cinema of Wes Anderson or even PT Anderson. Yes, The Brothers Bloom looks amazing, everything is stylized (in a 1960's way), costume exquisite, casting great. Script? This is the problem, there is a level of wackiness and smart arsed knowing to The Brothers Bloom that is off putting.  You can drown in the great visual opulence on screen, but It's vacuous too.
All the principles are good, Adrien Brody, Rachel Weisz, Mark Ruffalo and Rinko Kikuchi. This film about confidence tricksters actually plays a good one by making you think you're watching something emotionally engaging. You're not.

Still, I can really admire Brody. What a strange looking man, yet beautiful. At the end, where there is the possibility of love, I almost felt a twinge of something. It was nostalgia. I was hoping The Brothers Bloom was some other picture and I could drown in the possibilities. On some other day, in some other mood, this might work. Right now, it feels like a waste.

Last weekend was funny: I suddenly found myself living with two magicians. Both equally bad and both equally enthusiastic about their new and fabulous tricks. I was supposed to play the part of the understanding audience member, who makes the magic work by believing in it. In fact I was the sole target of all this magic and I begged them to leave me alone until they would really learn something...

I'm usually very encouraging, but sometimes you have to be brutally honest to save untalented people from wasting their time on something they will never figure out. Do I really think so? Surely you can learn anything if you put your mind and time to it? The Brothers Bloom has characters that suggest so. It is the story of two con artists. They have made their living through elaborate chains of lies followed by well-timed actions. They are masters at making something look like something that it is not. In the process they have lost themselves. Rachel Weisz plays an eccentric millionaire who passes her time mastering different hobbies all by herself. When she becomes the target of the Bloom brothers, she unravels them in their own game. Love is the antidote to being lost.

The Brothers Bloom
is at times an uncomfortable mixture of fairytale, psychoanalyzing, stylish looks, lazy narrating and great actors breezing through various sets in various countries. A quivering naivety persists with a few joyous results, like when Penelope (Weisz) tells the younger Bloom (Adrian Brody) to live life as if the most fantastic story ever told. Then again, it is a little sad in cinema these days, when something that could easily be done visually (that's why it is cinema, right) is only blurted out in lines.

Tuesday, May 17, 2011

What cases should the Supreme Court hear?

Published in Halsbury's Law Exchange here

During research for my previous post on the Supreme Court, the question arose as to what sort of cases the court should hear. Some authors have been of the view that the court should fashion itself as a constitutional court, rather than continue as a general appeal court. Most notably, Baroness Hale is reported as saying that the court should eschew “big money shipping cases” which she argues are “important only to the parties and their insurers" (quoted here @ p26). A change in that direction would mirror the experience of the Canadian Supreme Court, which over the past 25 years has gravitated towards public law cases (see Hazell, Robert, The Continuing Dynamism of Constitutional Reform (January 2007), Parliamentary Affairs, Vol. 60, Issue 1, pp. 3-25, 2007 @ p17).

As noted in my previous post, there has been a substantial increase in constitutional and administrative litigation in the past half century, particularly since the coming into force of the Human Rights Act 1998. The more cynical attribute this trend to an overregulated society, an economic climate in which the state is seen as one of the few defendants worth suing (the yet more cynical dispute the validity of this assumption, with reference to the national debt), and the opportunities presented by the 1998 Act (“cynical” probably not being sufficient to describe some of the detractors thereof).

With the greatest respect to Baroness Hale, however, I would maintain that the Supreme Court should remain a general appeal court.

It should be uncontroversial to observe that Britain can only afford its vast state apparatus and world-leading standards of human rights because of the money generated by the City. That money is generated because international businessmen and women choose to do business here. They do so because of two primary reasons: first, the commercial expertise; and secondly, the regulatory regime.

Central to the second of those reasons is the dispute resolution mechanism, which in London is composed of the well-known arbitral tribunals as well as the court system. No one would choose to do business in a country which failed to adhere to the rule of law, or otherwise had an untrustworthy judicial system (unless I suppose one was tempted by the availability of minerals or other raw materials, which is not the case in London).

At the apex of the London dispute resolution and judicial tier sits the Supreme Court, which has a significant role as the ultimate guarantor of the correctness of the legal process, even if the guarantee is only rarely called upon.

In an important recent analysis Carnwarth LJ estimated that legal services amounted to £3b in foreign earnings in 2007, and pointed to the increasing number of international dispute resolution centres.* But a greater (if less easily quantified) sum would be earned on transactions which take place in London because of the regulatory framework as already mentioned.

It would also be incorrect to assume (nb - I am not imputing this assumption to Baroness Hale) that all "big money" commercial cases are irrelevant to the average consumer. The bank charges case (Office of Fair Trading v Abbey National plc and others [2010] 1 All ER 667) is a good example, and one can imagine test cases along similar lines in many other areas of consumer law. Or one thinks of Equitable Life Assurance Society v Hyman [2000] 3 All ER 961 - a classic Chancery Division dispute, but one upon which many thousands of ordinary people's savings turned. I do not see any compelling reason why the Supreme Court should not continue to hear such cases. In fact I would maintain the opposite: public confidence in the outcome of important cases will be much higher if they are resolved by thorough examination from the highest court in the land.

Accordingly, rather than seeking to confine itself to public law cases (either formally by a statutory restriction on its jurisdiction or informally by the exercise of its discretion to grant permission to appeal), the Supreme Court should continue as a general court of appeal. Or, to invoke one of the Court of Appeal's stock phrases, their lordships should dine a la carte rather than from a set menu. In considering whether to grant permission to appeal, the court should take a broad - that is to say, commercially aware - view of what constitutes public importance.

* As an aside, I would note that the importance of the Admiralty and Commercial Court renders it something of an embarrassment to the nation that for so many years it has had to be housed in such inadequate facilities as St Dunstan's House on Fetter Lane. A new building is under construction, which sensibly will also house the Technology and Construction Court (also lumped in St Dunstan's at present) and the Chancery Division (presently housed in the not much superior Thomas More Building within the Royal Courts of Justice on the Strand). This new building, Rolls House, will have much superior facilities, although it will still lack any character. During the Admiralty Court's ceremony marking the 200th anniversary of Trafalgar, it was noted that if the French had won then at least the anniversary event would be taking place in a decent venue. I wonder if it is too much to hope an edifice of suitable gravitas might be built in time for the 300th anniversary. At any rate, the absence of suitable premises for the Commercial Court was another reason why it was folly to be spending £30m on the Supreme Court building first, though obviously that argument along with the money has long been spent.

Bulworth (1998) Directed by Warren Beatty

In 1966 Bob Dylan was on acid, tired and forever touring. He gave an interview to Robert Shelton and spouted adorably arrogant and poignant "truths" about everything and nothing. It's entertaining stuff. Luckily, Uncut magazine published the interview in their latest issue to honor Bob's 70th birthday. In 1966 Bob Dylan had lost the need to please someone or to care for what others thought of him – or so he said. Not caring what others think of you is one of the most dangerous social weapons we have, because usually that feeling is accompanied by a need to get one's own perspectives out there. A rambling follows.

In Bulworth an aging democratic senator begins to tell the truth about his own ineffectiveness as a politician. He talks these truths on TV and rallies where he is supposed to campaign for re-election. He breaks the facades carefully constructed by his aids and financial supporters. He begins to see the extent in which racism persists on every aspect of American society. He adopts a new way of dressing, he begins to rap his political speeches, he falls in love with Halle Berry... Bulworth is entertaining. It is also infuriatingly simplistic, while at the same time a little too cynical. Warren Beatty is preaching his politics, the stuff he thought would be too radical if he actually did involve himself in real-life US politics. So, Beatty stayed where he has power, in Hollywood, and commented with this film in an overly ironic way. At times I feel embarrassed watching his "mad white politician".

Much earlier in 1966, Bob Dylan said to Shelton: "Why, I don't even want to talk about college. It's just an extension of time. I hung around college, but it's a cop-out, you know, from life, from experience. A lot of people started out to be lawyers, but I venture to say that 100 per cent of the really groovy lawyers haven't gotten through school the way they ought to. They've always been freaks in their school, and have always had a hard time making it; So many lawyers just take people for what they are worth." Thanks Bob. The enigmatic silences that followed are a much more effective way to handle a public image. Warren knows this too.

It's tempting to offer a view that Bulworth has been dated inexplicably by the course of history. US politics and its treatment of racial minorities (or nowadays majorities) has been well documented outside of cinema and partially within. Now we have an African-American in the White House, is the message of Bulworth relevant? Does mainstream US politics still serve a sweet line of bullshit to gain votes from the racial underclass and then fail to deliver? Obviously yes, despite some of us all wanting Obama to succeed, it's obvious the call of big corporations still carries the loudest. And even a man like Barack Obama is unable to counter corporate dominance of American policy. These things take time I guess.

It's not the rather cliched political message that Bulworth carries, that politicians lie and corruption is rife in mainstream politics, why this film works. What's impressive is watching a former A-lister make a movie where he lets it all hang out so honestly. The usual accusations of vanity are wasted on Beatty with Bulworth. As liberal LA Senator Bulworth, Beatty orders his own assassination on the eve of his re-election campaign. After a visit to an impoverished black area on his campaign trail, Bulworth decides to adopt a bluntly honest tone and tell it like it is. Not only this, he decides to do so using hip-hop rhymes and black culture to get his no BS message across. So yes, Beatty raps. Not only this, it's embarrassing and ridiculous.

And that's the point. It's to highlight the whole stupidity of the political process that we buy into and we allow to shape our lives. As a film, Bullworth is a mess, full of racial stereotypes and clichés. But it gets away with its message because its heart is in the right place and it is a genuinely original and  bizarre film. Bulworth is similar in many ways to Beatty's hippy sexual comedy Shampoo.  Like Shampoo, Bulworth feels like it's all over the place, while slyly making political points and being cohesive at its core. I'm not sure if it's a very good film, but Bulworth is brave and at times a funny curiosity which takes risks with conventionality.

Two dresses

Just like I said, I made two dresses - in tandem, from the same pattern, McCalls 5974.  Luckily, I could use navy blue thread for both.  If I had really tried I could probably have finished them in a day.  I took my time and finished them on a rainy weekend, between household chores.

Without further ado, here's version 1 (view B, but with 3/4 length sleeves).  This is my Chicago rayon-lycra jersey.  It's very soft.

The front has an inset midriff band, the bottom edge of which is slightly above the waist.  The bodice and skirt are each pleated into the band.  There isn't too much bulk.

The back, however, is totally plain.  I think I would like the back view better with the midriff band.  If I was going to make this again (I probably won't) I'd consider modifying the back.  Coffin clothes.  Harumph.

I can't complain about the fit.  I cut a straight size 10.  Palmer & Pletsch wrote all kinds of detailed instructions for fitting this pattern but really?  It's a knit dress.  Knits are pretty forgiving.  I liked the side seam insurance they built into the pattern, however - 1" side seam allowances.  I dutifully basted and tried it on - then sewed the seams permanently exactly as drafted.

BTW I used my sewing machine to do the construction.  I like using a tiny (1.5mm x 1.5mm) zig zag stitch.  The seams press open nice and flat, and there is a lot of built in stretch.  I used my cover hem stitch on my serger to finish the neck, using that great Jalie no-elastic self-fabric binding technique.  Here's a close up view of the scoop neck.  It adds just the right amount of stability to the neckline.  I cut the binding 85% of the length of the neck edge; with this soft fabric I could have cinched it in some more, but it's ok as is.

And here is View C which I prefer.  The waist ties give it more interest, and cover up the plain back.

The front midriff band is completely hidden by the ties, which are constructed in a strange way.  Here I am before wrapping...  Those ties are long enough to go around twice.

The tie is a long tapered piece sewn in the side seams single-layer, but then folded over on itself to create a finished tie.

I haven't decided which one to wear first, but I'll have to wait.  It's way too cold this week for little knit dresses!

Saturday, May 14, 2011

Throwing caution to the wind?

When I was in Chicago, I was lucky enough to spend time with the fabulous Ann of Gorgeous Things and Gorgeous Fabric and, of course, see her wearing several of her gorgeous creations, including this dress.  The pattern, McCalls 5974, was the absolute best pattern of 2010 (according to the collected wisdom of the reviewers at the PatternReview site).  Well, I didn't own it.  In fact, for some reason McCalls is probably the brand of (readily-available) pattern I own the fewest of.  And I have a quite extensive pattern collection.  

However, I do have a healthy respect for the collective wisdom of the reviewers at PatternReview, and for Palmer & Pletsch, but most of all for Ann, so I decided to go out on a hopefully-pretty-solid limb and buy it.  It certainly didn't hurt that McCalls patterns were on sale for $0.99 at Joanne's when I made a hurried tourist pilgrimage to one of the Chicago outlets of that venerable chain while en route to the airport to fly home.  In fact I do believe that all 3 of the sewers who were in the car and took the detour to Joanne's also bought it on the strength of Ann's recommendation.

I also bought some rayon/lycra jersey while in Chicago.  (Surprise!)  I had mentally set it aside for the faux wrap version that Ann was wearing, but sadly there is not enough since those ties are fabric hogs!  So I cut out the other version, which is equally highly endorsed not only by Ann but also by the PR folks.

But I really wanted that faux wrap version in my closet too, so I went digging in stash, where I found a sufficient length of another jersey print, purchased at last year's Montreal PR Weekend.  (By cosmic coincidence, this year's event is taking place right now, in Chicago and the participants were at the site of my purchase, although they won't have found any more of this print since we bought it all in April.)

So I'm cutting out the wrap version too.

Notice I haven't said anything about sewing up version 1 in my Chicago jersey.

Yes.  I am cutting two garments out at once from an untested pattern from a brand I barely have any familiarity with.  What a risk taker I am!  What could go wrong???

I've got a family event coming up next weekend in Montreal for which it will be quite nice to have a new dress.  Stay tuned...

Wednesday, May 11, 2011

Supreme Court appointments again

Published in Halsbury's Law Exchange here.

Last month I wrote about the controversy concerning the appointment of Jonathan Sumption QC to the Supreme Court. Since then Daniel Finkelstein in the Times has argued that the appointments process needs a fundamental alteration. He argues that since judges now inevitably involve themselves in political law making, they need greater democratic legitimacy. He advocates a version of the United States’ confirmation hearings, under which candidates nominated by the President undergo a searching examination in front of the Senate to elicit their political and personal opinions.

No one in modern times buys the old line about judges applying but never making law. Jonathan Swift did not even buy it in 1726. It is inevitable that judges are in the business of making and shaping the rules which govern us, as they have always and inevitably done.

Of course, they do not have an entirely free hand; the more outlandish claims of the "realist" school of jurisprudence are just as unrealistic as the old formalist myth about the law always being predetermined.

What has changed in recent times (that is, since the Second World War) is the extent to which the courts have been supervising the executive (administrative law) and, particularly since the Human Rights Act 1998 came into force, the extent to which they will entertain new causes of action against the state. That greater involvement in the business of government seems to underpin most calls for more democratic legitimacy for the bench.

In response I would argue that it is still not correct to say that the judges have assumed the role of unelected politicians. Even where a case raises questions of policy, the court is not in a position of a political party attempting to implement a manifesto, but rather assessing the particular policy against the legal parameters of Wednesbury review and the European Convention, taking account of its own case law and that of Strasbourg.

Finkelstein gives the example of privacy laws. These, he observes, have largely been developed by the judges and therefore Sumption should be examined to elicit his views on them. It is not clear why this should be so. If Parliament does not like judicially developed privacy law then it should legislate to change it, not appoint judges who it hopes will have different views. The latter course would be impracticable in any event, since Parliament might find candidates with whom it agrees on privacy law but disagrees on other important issues. It would also be inefficient: since only one or two vacancies tend to arise at the same time, it could be years before the majority of the bench is reconstituted according to Parliament’s sympathies (and years more before a case is appealed on any particular issue to the Supreme Court). During that time a new government might be elected which thinks the opposite to its predecessor. Would the “democratic legitimacy” of the court then be undermined? Moreover, judges might change their views after being appointed, as indeed American Supreme Court justices have been known to do.

One other problem with the US model is that the expectation about political leanings occasionally detracts from the court’s appearance of objectivity. The most striking example in recent times was when the court had to decide issues concerning the outcome of the Presidential election in 2000, and it did so by a decision split precisely on party lines.

All that said, I would not argue that Parliament should have no involvement whatever in the appointments process. The appearance of legitimacy needs to be preserved. Or, to put it another way, justice needs to be seen to be done. The old system of secret soundings followed by the Lord Chancellor’s announcement was the antithesis of public justice, however well it actually worked in practice. The leg work for choosing suitable candidates should be that of the profession and the executive, but the last say between those candidates should be that of Parliament.

Rather than “Borking” Supreme Court candidates in the American style to elicit their views on contentious political and moral issues, the preferable system would be for a cross-party committee (CPC), chaired by the Lord Chancellor, to approve candidates nominated by the judicial appointments committee. The CPC should include the opposition spokesperson on justice, with perhaps the balance to be nominated on a proportionate basis by all represented parties. It might include non-lawyers, provided some legal experts were guaranteed to be present. It would be entitled to interview candidates and its discretion would not be fettered, though in practice one would not expect probing of personal philosophies in the manner of the US.

As the candidates would already have gone through a rigorous selection process one might expect that the CPC would rarely expose any as being unsuitable. The process would however be a worthwhile means of protecting the court’s independence and legitimacy. Parliament would be seen as having the final say over appointments, but the non-partisan composition of the committee would preclude any appointee being seen as a governmental lackey.

The process advocated above bears some similarity to that followed recently in Canada with respect to Marshall Rothstein. It is also broadly similar to that suggested by Alexander Horne in a paper of much greater length than this post. I would recommend the paper and its bibliography as the appropriate starting point for further reading on the subject.

Tuesday, May 10, 2011

Necessity as a defence to murder

Published in Criminal Law and Justice Weekly, Vol. 175, 7 May 2011, p 270

Two media stories in 2010 of great human interest but with tragically different outcomes were those of the trapped miners in Chile and in New Zealand.  No insensitivity to the familes of the New Zealand mining disaster victims is intended hereby, but the possibility of men trapped in such a manner raises one of the classic problems of criminal law and jurisprudence, namely how far the rules of civilised society can apply in wholly exceptional circumstances. 

Suppose a group of people were trapped and could not be reached in time to prevent starvation without them resorting to cannibalism. That was the scenario envisaged by Lon Fuller in his classic essay “The Case of the Speluncean Explorers” (Harvard Law Review, Vol. 62, No. 4, p 616). Fuller's inspiration was, of course, one of the most infamous cases in English law, R v Dudley and Stephens [1881-85] All ER Rep 61, the case of the shipwrecked sailors killing and eating the luckless cabin boy.

In a recent review of the case (“Death on the High Seas” in Cases that Changed Our Lives, LexisNexis 2010), David Perry QC laments the modest standard of the legal reasoning in the case, which makes it surprising that it still remains authority for the principle that necessity is no defence to murder.  It is therefore worth questioning whether the principle is justifiable.

Mr Perry QC recounts the following hypothetical problem, like the case itself a ubiquitous feature of law and moral philosophy tutorials.  Suppose you are in charge of a set of railway points.  A train is coming down the line which is going to hit five people.  There is no time to stop the train or warn the people. The only option is to switch the points and send the train onto another line, where there is only one person.  Should you intervene and cause the death of the one in order to save the five?  Suppose the one is a woman and the five are all men. Does one invoke the “Birkenhead rule” and refuse to intervene?  What if the one is a child and the five all adults?

Or suppose you are a surgeon with five patients, each of whom requires a different organ transplant. No organs will be available in time.  But there is another patient who requires minor surgery of a different sort.  Do you take each of the necessary organs out of the one patient and thereby save the five?

Straw polls I have conducted always favour flicking the switch of the railway points, but never intervening as a surgeon.  And yet it is hard to see a moral distinction.

Both are distinct from the trapped miner/shipwrecked sailor dilemma, however, in that the trapped people all face death, rather than being in control of the lives of others.  How do they decide who lives?  Perhaps those with the lowest chance of survival should be sacrificed, but it would be perilous for the law to place a greater value on one life than another.  About the fairest solution would seem be to draw lots. 

It would be rare indeed for facts to be as cut and dried as in a tutorial (how could one ever prove the draw was conducted fairly?), although the law regularly has to deal with cases with no independent evidence, and the difficulty applies equally whether the defence of necessity is available or not. 

Should, therefore, the law regarding necessity be abolished, thus enabling one innocent person to kill another innocent person, if the alternative is both of them dying?  

With some diffidence, I suggest that it should not.  The present law might be imperfect, but there are still four safeguards against injustice.  The first is the Attorney-General’s discretion not to bring prosecutions even where there is strong prima facie evidence of an offence having been committed.  That is a fundamental principle of the criminal law.

The second is the admittedly rough sort of protection in the form of the jury system.  Someone attracting overwhelming public sympathy might expect that to be reflected in the jury’s decision. 

The third is what was actually employed in Dudley and Stephens, namely the flexibility in sentencing – though that is greatly reduced when the charge is one of murder. 

The fourth is the very rarely used Royal Prerogative of Mercy. 

It is true that in the case of a person considered morally innocent all but the first method might leave a lingering sense of injustice, but on the other hand for obvious reasons extending the categories of acceptable murder – which is what a defence of necessity amounts to – has to be a step taken with the utmost reluctance.  Ultimately, the injustice of a wrongful conviction can be at least partially redeemed, but the injustice of wrongfully permitting murder cannot.