Gutter Politics is OK, says Judge Eady

Partial, biased, hard-hitting electioneering, even if it merits the description "gutter politics", does not sustain an allegation of malice to found a cause of action for injurious falsehood; so held by the leading libel judge Mr Justice Eady in his judgment in the case of Quinton v Pierce, released on the internet today.

Clearly, this judgment only applies to politicians and could be justified on the basis that if you want to participate in a dirty game do not expect normal rules of civilized behaviour to apply and certainly do not expect your opponents to treat you with any civility. Lie down with dogs, get up with fleas.

To put that in latin (which we lawyers are no longer supposed to do): the defence could have been volenti non fit injuria or, going back to English, if you go into politics you are consenting to being traduced, vilified, blackguarded, having your character trailed through the gutter, your expenses questioned, your every word, act, omission etc. subjected to the utmost scrutiny, generally being booed and hissed at as if you were a pantomime villain (even, in those rare cases, where you are not) etc. etc. and you will have no right to complain because you knew what you were getting into you pathetic little moron.

Well, that is the ratio decidendi of the decision as far as I am concerned.

Do you agree?

My Daddy is a Lawyer & Other Lawyer Jokes

TWO LAWYERS

Today's joke of the day should be preserved:

My Daddy Is A Lawyer

While two families were waiting in line to see the Washington Monument, their two five-year-old boys were getting acquainted.

"My name is Joshua. What's yours?" asked the first boy.
"Adam," replied the second.
"My daddy is a doctor. What does your daddy do for a living?" asked Joshua.
Adam proudly replied, "My daddy is a lawyer."
"Honest?" asked Joshua.
"No, just the regular kind," replied Adam.

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The Godfather Lawyer

Q: What do you get when you cross the Godfather with a lawyer?
A: An offer you can't understand.

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The Truck Driver, the Priest and the Lawyers

A truck driver used to amuse himself by running over lawyers he would see walking down the side of the road. Every time he would see a lawyer walking along the road, he would swerve to hit him, and there would be a loud "THUMP" and then he would swerve back onto the road. One day, he saw a priest hitchhiking. He thought he would do a good turn and pulled the truck over.

He asked the priest, "Where are you going, Father?"

"I'm going to the church 5 miles down the road," replied the priest.

"No problem, Father! I'll give you a lift. Climb in the truck." The happy priest climbed into the passenger seat and the truck driver continued down the road.

Suddenly the truck driver saw a lawyer walking down the road and instinctively he swerved to hit him. But he remembered there was a priest in the truck with him, so at the last minute he swerved back away, narrowly missing the lawyer. However, even though he was sure he missed the lawyer, he still heard a loud "THUMP". Not understanding where the noise came from, he glanced in his mirrors and when he didn't see anything, he turned to the priest and said, "I'm sorry Father. I almost hit that lawyer."

"That's okay," replied the priest. "I got him with the door!"

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Laboratory Lawyers

Why are laboratory scientists switching from rats to lawyers for their experiments?
1. Lawyers are more plentiful than rats;
2. The lab technicians don't get as attached to the lawyers,
3. There are some things a rat just won't do, and
4. This is one area where the animal rights activists won't get worked up over.


More another day.

The Mystery of the Missing Motive: Yusuf v The Royal Pharmaceutical Society

This case (see title link) is mundane except for the fact that there is no motive for the acts that got this pharmacist struck off the register.

Yusuf was found guilty of "the consistent, one might almost say systematic, alteration of prescription forms and the forging of doctors' signatures to authenticate the alterations." The Disciplinary Committee said that "his conduct involved dishonesty, abuse of trust, loss to the NHS and the signing of FP34C forms certifying that the drugs ordered on prescriptions had been supplied to patients, when [he] must have known that that was untrue." His conduct, they added, "amounted to fundamental breaches of the Code of Ethics."

Yet the Committee also accepted that there was no evidence of any financial or other benefit to Mr Yusuf from his misconduct. He was an employed pharmacist. The benefit of his fraud can only have accrued to the pharmacy itself.

It is difficult, in the light of those findings, to understand the why? of this case.
It is not common human experience for wrongdoers to commit crimes from which they never intend to derive any benefit.

We need Inspector Morse here. There would appear to be loose ends. You may wish to play detective so I suggest you read the case.

The Garlic Defence

An amusing story from Gary Slapper of The Times concerns the abandonment of criminal trials at Bristol Crown Court because the smell of garlic was spreading around the court building. Visit the title link.

This is a particularly stupid defence to run. The best it will get you is an adjournment.

If you are exposed as the garlic deployer's friend you will cast doubt on your credibility and may destroy any other available defence you have. But then, lots of criminals are stupid. That is why they are criminals.

On the other hand, some criminals are clever and never get caught. This just supports two cardinal principles that prosecutors and governments need to keep at the forefront of their minds. They are:

(1) Probability of detection rather than harsh sentencing is the primary deterrent.

(2) Confiscation of the proceeds of crime should be the primary punishment.

Therefore, focus on better policing (more intelligent, better qualified, properly funded) and increase the penalties for failing to satisfy a confiscation order; perhaps, discounting the retributive part of the sentence and applying a percentage uplift to the criminal gain.

The really interesting thing you will find in Gary Slapper's article is the exclusion of a barrister from court for wearing perfume. OK, it was the 60's.

The Bible in English Just Like Jesus Talked

I thought P J O'Rourke made the title up but I have found it, or something so similar that it makes no difference; except, that it is written by an agnostic who wasted part of his life doing it. Go on, you believe it all now. See the title link.

Ian Tomlinson: Murder Not Manslaughter?

In English law murder does not require an intent to kill. The following will also suffice:

(a) an intent to cause grievous bodily harm; or

(b) grievous bodily harm is the virtually certain consequence of the perpetrator's act.

The news that Ian Tomlinson died from internal bleeding seems to me to mean that investigation of the unknown police officer only for manslaughter is inadequate. A murder charge should not be ruled out at this stage.

TOPIC FOR DEBATE

Manslaughter would be an example of undercharging that would not be countenanced if the offender were not a police officer.

Margaret Haywood, The Brighton Sussex Hospital and Elder Abuse

Margaret Haywood went undercover for the BBC and secretly filmed neglect/abuse of elderly patients at the Royal Sussex Hospital in Brighton, England.

After the film was broadcast, the trust responsible for the hospital admitted and apologised for "serious lapses in the quality of care".

I think we can take it that this was the most anodyne formula the trust's lawyers felt they could get away with.

The Times reports today that the Nursing and Midwifery Council has found that Ms Haywood had prioritised filming over her obligations as a nurse and had breached patient confidentiality.

In consequence, she has been struck off and cannot act as a nurse. That is, her career has been destroyed.

Oh, by the way, it is also reported that all of the patients (subsequent to the filming) waived confidentiality. I would too. If I was a vulnerable elderly person and was being maltreated but with no means of doing anything about it, I would positively want someone, anyone, to do something about it and by whatever means possible.

Ordinary mortals will find the decision to strike this nurse off the register inexplicable other than as a protective act of revenge and as a blatant attempt to discourage others from blowing the whistle on National Health Service malpractice.

She did a greater service to these patients than the hospital or any of their other doctors or nurses.

I hope Margaret Haywood takes this matter further. I am sure she has access to proper advice and I can think of many lawyers who would take this case on a no win no fee basis.

The decision of the Nursing and Midwifery Council, on the facts available in the public domain, is an utter disgrace and wholly against the public interest.

The Pot and the Kettle

Rachel Sylvester of The Times appears somewhat sinister if the title story really represents what she thinks.

Take a look!

She is doing exactly what she criticises others for doing.

Does Dr Michael Pelling Help Fathers or Children?

The notorious lay represenative of fathers in the English courts has been at it again. And this time it is not about contact with the father's children. It's about filthy lucre.

Well, I suppose Dr P is entitled to earn a crust.

The answer to the title question is: No, not a lot really. In fact, if you consider cases that he has been involved in (including his own sorry dispute with his ex-wife) he damages fathers and their relations with their children.

It is not simply that he gets up the noses of judges. He does that, however. He does it with such skill and alacrity that I sometimes think that he wants to lose.

If you are really tempted by having Dr Pelling represent you then you should first of all read the judgment in his latest debacle. You will quickly change your mind.

It is G v A and it becomes compelling reading at about paragraph 100.

For instance, would you really want your advocate to send in a written comment on the judgment as follows:

"In fairness to [the father] I would ask the reason why the cheque was stopped be stated. It was stopped on Dr Pelling's advice who drew [the father's] attention to the stated purpose of the £20000, for the mother's cost of moving, … , and pointed out that no move of the mother was on the horizon and that of course the problems of the settlement deed etc had not been resolved so the move was not going to take place in the near future. It was not reasonable to pay under those circumstances, especially as the Order made no provision for what would happen to the money if the move was not taking place, and on the mother's record there was real concern it would just be spent improperly and dissipated. It is not fair to [the father] as a businessman of probity to damn him in a judgment as a person who stops cheques when he owes money, which prima facie does not enhance reputation. [The father] cannot publicly reply to such aspersions because of the anonymisation (which does not guarantee that [he] will not become known to some people as the A in question)."

Mr Justice Munby saw that one coming:

I am content to record Dr Pelling's comments but they hardly seem to assist the father. The facts as I set them out in paragraph [6] are not disputed; nor could they be. The fact is that the father stopped the cheque in December 2006, at a time when his appeal against the District Judge's order stood dismissed, when the stay had long since been lifted and long before he made his application to the court on 15 June 2007. The fact is that when he stopped the cheque he owed the money. The fact, as now appears, that the father acted on the advice of Dr Pelling can hardly assist him; it merely throws an interesting light on Dr Pelling's approach to orders of the court.

As a lawyer, I naturally advise you to pay attention to orders of the court. If you want to take the advice of Dr Pelling then feel free to do so. If the advice, in the end, does not work out entirely costs neutral (financially or emotionally) then I am sure that Dr Pelling's insurance will cover you. Please check with him first, however.

The Date of Your Death is a Random Number

6 teachers and three students died today, I heard on the radio as I awoke this morning. I might as well have heard that a tsunami had killed tens of thousands. Or that the Rwandans had massacred another million or two.