I have been to a family law conference at the Gatwick Hilton today. This diary item is, of course, of no general public interest whatsoever. But as so often happens in my life something came up of direct relevance to a case I have in the near future: indeed, tomorrow is the adjourned final hearing. As a committed atheist these serendipitous moments so regularly occurring give me a sense of unease. Did the unsought adjournment occur because someone decided I should go to this conference first? Do I have a guardian angel?
Monday, January 29, 2007
Sunday, January 28, 2007
Lie Tests for Government Ministers
Well, there you have it, it must be right then.
Oh, alright, click here if you want the "true" story. I said "story" and I put the word true in quotation marks.
Saturday, January 27, 2007
The Mysterious Case of the Exculpatory Letter: A Sherlock Holmes' Mystery
His appeal was not successful and it is not what this post is about. He doesn't look as if he had much personal hope in the first place. Both his wife and his mistress succeeded on their appeals, however.
This case involved an international conspiracy to supply crack cocaine. There have been many arrests in various jurisdictions and the Court Of Appeal recently heard 3 appeals and numerous other applications for leave to appeal by various UK based Defendants.
Those interested in the extent of the conspiracy and the underying facts can easily find that information on the internet or try the article in The Times: "Bling Bling Gang Jailed for up to 27 Years".
I am presently more interested by the Court of Appeal's choice not to investigate the existence or otherwise of an exculpatory letter allegedly written by the gang leader in the UK to the judge asserting the innocence of one co-defendant whose conviction was quashed on appeal.
The letter is dealt with in paragraph 47:
"We should add that there was also before the court an application by Anderson for an order for disclosure of a letter written by Dundas-Jones to the trial judge. Anderson's counsel understood from what had been said by HHJ King before he heard mitigation that the letter exculpated Anderson. As we have allowed her appeal without recourse to or reliance on the letter, the disclosure application is moot for the purposes of these appeal proceedings."
Anderson had already succeeded on her appeal because a prison custody officer gave evidence at the appeal of having overheard the following exchange between her and Dundas-Jones:
"Ian Dundas-Jones: 'Are you not talking to me?'
Nekeisha Anderson: 'I have been in custody 13 months because of you, if you had told me you were going to collect drugs I would not have gone. If you were a man you would tell the truth. All you are interested in is saving your own ass.'
[D-J] 'I should have told you, I am sorry.'
[A] 'You are only sorry you got caught, don't talk to me.'"
If she did not know about the drugs it followed that she was innocent. One only pauses to note that the very last thing he should have done was to have told her anything! That would have wrecked the appeal completely.
So, the letter does not matter? Not quite. She had to appeal and spent time in custody pending the hearing.
Before allowing Anderson's appeal the court had heard and determined Dundas-Jones's wife's appeal. This had been allowed on the quite different ground that her defence had been unfairly withdrawn from the jury by the judge or undermined by him in comments he made during her counsel's closing submissions.
That, it is suggested, may indicate a prosecution bias that coloured the judge's consideration of the exculpatory letter. True enough, Anderson was Dundas-Jone's mistress. However, he made no similar attempt on behalf of his wife and would not a wholly open minded judge have made some enquiry? If he did, we will never know. If he had, would the custody officer whose conscience later troubled tim so much have come forward earlier? We will never know that either.
The gang was a vicious one and long sentences for those who were guilty were entirely justified but it may be salutary for judges to consider that, when they have a large number of defendants before them, they must treat each individual separately and not give in to the temptation to tar them all with the same brush.
R v Dundas-Jones & Others
This case involved an international conspiracy to supply crack cocaine. There have been many arrests in various jurisdictions and the Court Of Appeal recently heard 3 appeals and numerous other applications for leave to appeal by various UK based Defendants.
Those interested in the extent of the conspiracy and the underying facts can easily find that information on the internet or try the article in The Times: "Bling Bling Gang Jailed for up to 27 Years".
I am presently more interested by the Court of Appeal's choice not to investigate the existence or otherwise of an exculpatory letter allegedly written by the gang leader in the UK to the judge asserting the innocence of one co-defendant whose conviction was quashed on appeal.
The letter is dealt with in paragraph 47:
"We should add that there was also before the court an application by Anderson for an order for disclosure of a letter written by Dundas-Jones to the trial judge. Anderson's counsel understood from what had been said by HHJ King before he heard mitigation that the letter exculpated Anderson. As we have allowed her appeal without recourse to or reliance on the letter, the disclosure application is moot for the purposes of these appeal proceedings."
Anderson had already succeeded on her appeal because a prison custody officer gave evidence at the appeal of having overheard the following exchange between her and Dundas-Jones:
"Ian Dundas-Jones: 'Are you not talking to me?'
Nekeisha Anderson: 'I have been in custody 13 months because of you, if you had told me you were going to collect drugs I would not have gone. If you were a man you would tell the truth. All you are interested in is saving your own ass.'
[D-J] 'I should have told you, I am sorry.'
[A] 'You are only sorry you got caught, don't talk to me.'"
If she did not know about the drugs it followed that she was innocent. One only pauses to note that the very last thing he should have done was to have told her anything! That would have wrecked the appeal completely.
So, the letter does not matter? Not quite. She had to appeal and spent time in custody pending the hearing.
Before allowing Anderson's appeal the court had heard and determined Dundas-Jones's wife's appeal. This had been allowed on the quite different ground that her defence had been unfairly withdrawn from the jury by the judge or undermined by him in comments he made during her counsel's closing submissions.
That, it is suggested, may indicate a prosecution bias that coloured the judge's consideration of the exculpatory letter. True enough, Anderson was Dundas-Jone's mistress. However, he made no similar attempt on behalf of his wife and would not a wholly open minded judge have made some enquiry? If he did, we will never know. If he had, would the custody officer whose conscience later troubled tim so much have come forward earlier? We will never know that either.
The gang was a vicious one and long sentences for those who were guilty were entirely justified but it may be salutary for judges to consider that, when they have a large number of defendants before them, they must treat each individual separately and not give in to the temptation to tar them all with the same brush.
R v Dundas-Jones & Others
Friday, January 26, 2007
Mathematical Judges
Accountants might like this judgment. The rest of of us may remain baffled. The solution to the case was apparrently as follows:
"An = the stock at the end of week n;
Rn = the receipts during week n;
Pn = the payments during week n;
Dn = the discrepancy for week n (positive for a loss, negative for a gain);
Sn = the algebraic sum (i.e. the sum taking into account the sign, positive or negative) of the discrepancies for all relevant weeks up to and including week n;
then
Rn – Pn - (An – An-1) = Dn = Sn – Sn-1.
i.e.
Rn + An-1 + Sn-1 = Pn + An + Sn."
If you really want to study the case it is at:
Post Office v Lee
"An = the stock at the end of week n;
Rn = the receipts during week n;
Pn = the payments during week n;
Dn = the discrepancy for week n (positive for a loss, negative for a gain);
Sn = the algebraic sum (i.e. the sum taking into account the sign, positive or negative) of the discrepancies for all relevant weeks up to and including week n;
then
Rn – Pn - (An – An-1) = Dn = Sn – Sn-1.
i.e.
Rn + An-1 + Sn-1 = Pn + An + Sn."
If you really want to study the case it is at:
Post Office v Lee
Thursday, January 25, 2007
Children's Evidence
I have been told off recently (severely criticised would be another way of putting it) for trying to present a child's point of view via a letter sent by the child to me. This was in the context of a financial dispute between the parents but the child's views were highly relevant to the outcome. Who was the child going to live with and how did that impact on their respective financil needs?
I was therefore heartened to read the following case:
LM v Medway
In that case, the child was 10. Her evidence was relevant.
OK, it was care proceedings.
My "child" was 17 and her evidence was not only irrelevant but an "abuse".
I was therefore heartened to read the following case:
LM v Medway
In that case, the child was 10. Her evidence was relevant.
OK, it was care proceedings.
My "child" was 17 and her evidence was not only irrelevant but an "abuse".
Praise for a Solicitor! Wow!
Generally, solicitors are referred to in judgments in a manner that suggests that what the judge really thinks is that "if only you had instructed a barrister we might have listened to you." Preferably, a member of the judge's former chambers.
Wall LJ is therefore cited for the rarity of his sentiments:
"I pause at this point to note Mr F's determination to participate in the proceedings and to care for K, and to express my admiration for Mr F's solicitor, who in an extremely tight timescale managed to obtain public funding, master the documents and conduct Mr F's case. The same solicitor was equally proactive in making an application for permission to appeal and, although the application was out of time, we had no difficulty in extending Mr F's time for filing his appellant's notice."
The award goes to Tilley & Co although the individual solicitor is not named.
Whoever he or she is, I am sure that he or she would agree that a lot of his or her colleagues merit similar praise.
The case is:
In the matter of M-H
Wall LJ is therefore cited for the rarity of his sentiments:
"I pause at this point to note Mr F's determination to participate in the proceedings and to care for K, and to express my admiration for Mr F's solicitor, who in an extremely tight timescale managed to obtain public funding, master the documents and conduct Mr F's case. The same solicitor was equally proactive in making an application for permission to appeal and, although the application was out of time, we had no difficulty in extending Mr F's time for filing his appellant's notice."
The award goes to Tilley & Co although the individual solicitor is not named.
Whoever he or she is, I am sure that he or she would agree that a lot of his or her colleagues merit similar praise.
The case is:
In the matter of M-H
Beware the Experts' Meeting
This is a cautionary tale for civil litigators who agree an experts' meeting too early in proceedings. You may be bound by the findings even if your expert has not had adequate instructions. Since this is not a matter of wide public interest, but crucial to civil litigators, I simply provide this quotation from Smith LJ that links to the judgment:
"I observed that in my experience it was unusual for a joint statement to be ordered, as it was here, before expert reports had been exchanged. We were told that this is not an uncommon practice in the Technology and Construction Court. It seems to me that there are dangers inherent in producing a joint statement until after expert reports have been exchanged. There is a danger that one expert might express agreement with the other expert which, on taking full instructions from his client after production of his report, he wishes to resile from. It appears that that is what has happened here."
Aird v Prime Premeridian
"I observed that in my experience it was unusual for a joint statement to be ordered, as it was here, before expert reports had been exchanged. We were told that this is not an uncommon practice in the Technology and Construction Court. It seems to me that there are dangers inherent in producing a joint statement until after expert reports have been exchanged. There is a danger that one expert might express agreement with the other expert which, on taking full instructions from his client after production of his report, he wishes to resile from. It appears that that is what has happened here."
Aird v Prime Premeridian
Policeman v Police: Storm in a Teacup
"The walk down the passage was in fact recorded on CCTV and Sgt Morgan could be heard enquiring "yes" as the door was closed. There was some shouting and some seconds later the door opened and there had plainly been some altercation between the two men. The appellant alleged that Sgt Morgan had pushed him in the face and he repeated that on a number of occasions. He subsequently said that he had been grabbed by the throat. Both officers then made complaints about the incident. "
It was the tea!
"The appellant contended that it had been a racially motivated assault by Sgt Morgan. He sought to support his allegation by alleging that there had been inappropriate behaviour by the Sergeant all morning. He said that he had been treated in a contemptuous manner; for example, he had been required to make the tea, and had been required to answer the phone when in fact the Sergeant was much closer and could have answered it, and he contended that the Sergeant had been shouting and swearing at him. He was humiliated, he said, to be spoken to in this way in front of his peers when everyone was watching."
It was the tea!
"The appellant contended that it had been a racially motivated assault by Sgt Morgan. He sought to support his allegation by alleging that there had been inappropriate behaviour by the Sergeant all morning. He said that he had been treated in a contemptuous manner; for example, he had been required to make the tea, and had been required to answer the phone when in fact the Sergeant was much closer and could have answered it, and he contended that the Sergeant had been shouting and swearing at him. He was humiliated, he said, to be spoken to in this way in front of his peers when everyone was watching."
Yob v Police
I am not a criminal solicitor or, more accurately, I am not a solicitor who advises criminals. I do not even advise completely innocent people who happen to have been arrested for something they clearly did not do. I send them down the road. I stick to my last. I am a civil litigator and that is it. Expect more of me and you will be sadly disappointed.
This case did interest me, however:
G v Chief Constable of the West Yorkshire Police (Interested Parties: the Director of Public Prosecutions and the Secretary of State for the Home Department)
Gordon Bennett, you may say. With that lot involved this must be a momentous case of hugely significant public import involving fundamental questions of human liberties.
You may be wrong.
The yob (sorry, "persistent young offender") was detained for three hours at a police station. He only had "eight previous convictions, including three for violence" so naturally he complained that this was unlawful. How could they possibly suspect him of being involved in "an unpleasant incident on a bus in Leeds in which a number of youths attacked passengers"? Was it because he was on the bus? How dreadfully unjust!
You will want to read the full case (because you paid for it out of the legal aid budget funded by your taxes) but the nub of the conclusion was that the court was "entirely clear that, on any view, however one approaches it, the detention was lawful". An appeal may be being prepared now and my take on this case may be entirely wrong. I am not keen, however, on legal executives who carry around standard letters:
"Mr Conaghan informed the custody officer that in his view there was no proper basis for detaining the claimant since there was sufficient evidence to charge him and section 37 of the Police and Criminal Evidence Act required that he be released on bail or charged. Mr Conaghan produced a standard letter to that effect and it seems that that is a letter which he customarily carries with him and produces at police stations when a situation such as that which existed in this case arises."
Who wrote that letter?
IMPORTANT NOTE
No insult is intended to the current Home Secretary by the use of Mr. Blunkett's photograph on this posting. Mr. Blunkett is an emblametic Home Secretary and, anyway, the rapidity with which that particular job parcel gets passed these days means that even the internet cannot keep up. Who is the current Home Secretary?
PS: No-one has told Mr. B he's not HS anymore judging by his appearances (should that be voiceacts?) on the Today radio show.
This case did interest me, however:
G v Chief Constable of the West Yorkshire Police (Interested Parties: the Director of Public Prosecutions and the Secretary of State for the Home Department)
Gordon Bennett, you may say. With that lot involved this must be a momentous case of hugely significant public import involving fundamental questions of human liberties.
You may be wrong.
The yob (sorry, "persistent young offender") was detained for three hours at a police station. He only had "eight previous convictions, including three for violence" so naturally he complained that this was unlawful. How could they possibly suspect him of being involved in "an unpleasant incident on a bus in Leeds in which a number of youths attacked passengers"? Was it because he was on the bus? How dreadfully unjust!
You will want to read the full case (because you paid for it out of the legal aid budget funded by your taxes) but the nub of the conclusion was that the court was "entirely clear that, on any view, however one approaches it, the detention was lawful". An appeal may be being prepared now and my take on this case may be entirely wrong. I am not keen, however, on legal executives who carry around standard letters:
"Mr Conaghan informed the custody officer that in his view there was no proper basis for detaining the claimant since there was sufficient evidence to charge him and section 37 of the Police and Criminal Evidence Act required that he be released on bail or charged. Mr Conaghan produced a standard letter to that effect and it seems that that is a letter which he customarily carries with him and produces at police stations when a situation such as that which existed in this case arises."
Who wrote that letter?
IMPORTANT NOTE
No insult is intended to the current Home Secretary by the use of Mr. Blunkett's photograph on this posting. Mr. Blunkett is an emblametic Home Secretary and, anyway, the rapidity with which that particular job parcel gets passed these days means that even the internet cannot keep up. Who is the current Home Secretary?
PS: No-one has told Mr. B he's not HS anymore judging by his appearances (should that be voiceacts?) on the Today radio show.
Wednesday, January 24, 2007
The "Incredible" Allason Rides Again
The famously litigious Rupert Allason (the former MP also known as Nigel West, the spy writer) has added the adjective "incredible" to the judicially approved list of permissible descriptions of him. Unfortunately for him the word was not applied in a sense that expressed stupefaction at his might or majesty (e.g. The Incredible Hulk or, indeed, Einstein, Joyce or Lawrence). It was some of his evidence in court (under oath) that was found to be "simply incredible". See the full story here:
Polarpark v Allason
Check paragraph 9 of the above judgment before you sue me Mr Allason.
Other parts of RA's case were found to be "simply hopeless" and were not even appealed by him.
The following is mild and qualified. It is paragraph 28 of the judgment:
"In assessing the credibility or otherwise of the defendant's evidence, the Master had well in mind his conclusion (not challenged on this appeal) that the defendant's assertion that he was the beneficial owner of Croftdown was a defence put forward dishonestly and in bad faith, together with other instances of apparent dishonesty on the part of the defendant, such as his assertion (contrary to earlier correspondence) that he had not seen the Deed of Settlement, and the conclusion of the Bermudian judge hearing the divorce proceedings that the defendant had given dishonest evidence to him. The Master may also have been aware that the defendant had been criticised as a dishonest witness by Laddie J in Allason and another v Random House UK Ltd (in a judgement given on 16th October 2001) because, without naming it, he noted that the defendant had been an untruthful witness in England. Nonetheless, he made it clear in paragraph 46 of his judgment that those matters would not be sufficient to justify a conclusion that his present evidence was incredible. I consider that he was right to exercise that caution."
Polarpark v Allason
Check paragraph 9 of the above judgment before you sue me Mr Allason.
Other parts of RA's case were found to be "simply hopeless" and were not even appealed by him.
The following is mild and qualified. It is paragraph 28 of the judgment:
"In assessing the credibility or otherwise of the defendant's evidence, the Master had well in mind his conclusion (not challenged on this appeal) that the defendant's assertion that he was the beneficial owner of Croftdown was a defence put forward dishonestly and in bad faith, together with other instances of apparent dishonesty on the part of the defendant, such as his assertion (contrary to earlier correspondence) that he had not seen the Deed of Settlement, and the conclusion of the Bermudian judge hearing the divorce proceedings that the defendant had given dishonest evidence to him. The Master may also have been aware that the defendant had been criticised as a dishonest witness by Laddie J in Allason and another v Random House UK Ltd (in a judgement given on 16th October 2001) because, without naming it, he noted that the defendant had been an untruthful witness in England. Nonetheless, he made it clear in paragraph 46 of his judgment that those matters would not be sufficient to justify a conclusion that his present evidence was incredible. I consider that he was right to exercise that caution."
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