Barclays Tax Avoidance Horse Bolts, Then Judge Shuts Stable Door

NO HORSE HERE

Mr Justice Blake thinks that the documents Barclays does not want you to see are still sufficiently difficult to find that they have not yet lost all confidentiality. Well, I'm a slow typist and it took less than 60 seconds. Mind you, when you start trying to read them you wish you had not found them. They use an especially effective cryptogram. They are written in mind numbingly boring jargon so that only the most dedicated investigative reporters will stay awake long enough to penetrate to the heart of any wrongdoing the documents may reveal. I have not the patience. Of course, Barclays say that there is no wrongdoing to be found. Well, that explains why they woke the first judge at 2:30 am in the morning to try to suppress publication then.

4% of Universe Known; No-one At The Times Watches Star Trek Then

If you’re wondering what the LHC might do for you, how’s this: it might just find a whole quarter of the universe. The collider is hoping to create some particles of what physicists call “dark matter”, an enigma that is thought to make up roughly 25 per cent of the universe. Then there is the “dark energy”, a mysterious force that seems to be ripping space and time apart. In total, a whopping 96 per cent of the universe has gone AWOL. Unless, that is, we’ve got our maths all wrong. Watch this space.

So Michael Brooks of The Times writes. How silly. He probably borrowed it from a physics site such as top ten physics problems for stupid and lazy journalists but failed to register that no-one can tell us what percentage of the unknown we do not know.

Margaet Thatcher as Coriolanus

She would not do the tea rooms. The BBC's drama makes it clear that her downfall equated to the tragedy of Coriolanus.

Gail Trimble, Knowledge, Intelligence and Memory

Gail Trimble seems very nice to me.

The internet abuse seems to be subsiding and being topped on search engines by more favourable posts. This is as it should be.

Even so, some of these "good" posts fundamentally confuse analytical intelligence with mere recollection of facts quickly. In fact, Trimble is in ample possession of both faculties but the distinction still needs to be maintained.

Savants can remember huge sequences of numbers but may not always be able to put that ability to any analytical use.

Trimble can do both. One faculty is helpful to an intelligent person but not necessary. The other is essential.

Some of the questions on University Challenge test only the ability to recollect facts but others did test Trimble's analytic intelligence as well. For instance, the questions on the periodic table and the questions on Roman numbers.

So she entirely deserves the accolade of being probably amongst the most intelligent people to appear on University Challenge but not simply because she has a good memory. That simply diminishes her fantastic achievement.

Fools And Their Money

Been fooled by a ponzi scam? A 419 advance fee fraud? Bought anything at all from Mr Madoff? Could you be? Have you? Would you?

Take the test.

You will have seen a link that says:

You are the 988,744,113th visitor to this site. You are guaranteed a prize. Click here.

Did you click?

Now you know the answers to the last three questions without needing any help from Einstein.

NB: If you said yes, immediately check all your bank accounts. Also, develop some wisdom (particularly concerning impossibly - not just improbably - high numbers of claimed hits).

An Illusion

Above is a picture. Below is the same picture. Your task is to explain how that can be so.

Compare the MeerKat

This is my new TV advertisement. It seem some people still visit this site for cheap car insurance deal, so this time I have make absolute clear difference. Only mongoose could not understand.

This is not an advert for anyone except those who created my favourite advert in years. It is incidental that their client gets more free exposure.

They even set up a real (advert laden, of course) meerkat site and it is all hilarious or, at the very least, chucklesome.

Petition Thought For The Day

Thought for the Day on Radio 4 is a time honoured institution.

But the believers should not have it all one way so I have signed the petition to have secular presenters. I did put in a word for an alternative solution. We could have Rabbi Lionel Blue every day. He has a consistently human (and therefore humanist) approach. He is also, without question, the wittiest presenter.

If you want to sign go to the title link.

Oh, yes, that is Dawkins above. I am happy to publish cartoons ridiculing people I respect. When can I expect religious bigots to reciprocate or, at the least, not to threaten to kill other people who do?

PD Oscar is Innocent!

THE REAL OSCAR WINNER

Mr Walker (a retired solicitor's clerk) drank 10 pints of beer and half a bottle of wine. He was found in charge of a car which he had been driving. He ran away. PD Oscar gave pursuit. In the course of securing the arrest of Mr Harris he bit him. Mr Harris sued the Chief Constable for damages for personal injury. A PD is a police dog.

You might think that chasing criminals and assisting in their arrest is what PDs are for and how they earn their cookies and other treats. In fact, you might think that it is a PD's public and contractual duty to chase criminals and sometimes they may have to bite them. No arrests, no cookies and treats.

Of course, they must (as with all officers of the law) use no more than reasonable force to secure an arrest. This may not in a lot of circumstances involve biting. Most people when confronted by a PD will heed his handler's warning to stand still. In that event, a properly trained PD will simply circle you and bark at you a bit.

So did PD Oscar exceed the bounds of his authority? Well, that must depend on what Mr Walker did in order to resist arrest. With 10 pints and half a bottle of wine inside whilst trying to drive a car Mr Harris could hardly say that PD Oscar did not have good grounds to arrest him.

Now it must be emphasised that the following is an agreed factual account of what happened. Agreed, that is, by Mr Harris. When you read it you are going to wonder what possessed him to bring his case to the Court of Appeal or who (if anyone did) advised him that he should. There is a twist in the tail. See further below.

On the admitted facts Mr Harris did a lot more than run away:

"PC Harris ... saw that there were two white males in the car and he thought that they were aged about 50 or so. He tapped on the window but got no response. He tapped again more loudly. He got no response again, so he opened the door and asked the two inside if they were all right. PC Harris noticed that inside the car it smelt strongly of alcoholic liquor. PC Harris concluded that Mr Roberts had been drinking, as indeed he had. He asked Mr Roberts if he had been drinking and Mr Roberts replied "no". At that stage the car's engine was running. PC Harris asked Mr Roberts to turn off the engine. Mr Roberts would not do so, so PC Harris lent over and took out the ignition key.

PC Harris then asked Mr Roberts to get out of the car and join him at the rear of the vehicle; that is, between his car and the police van. Mr Roberts refused. PC Harris wanted to give Mr Roberts a breath test as he thought that Mr Roberts had been driving whilst over the legal limit. PC Harris told Mr Roberts he wished to give him a breath test.

Eventually Mr Roberts got out of the car and went to the rear of it. PC Harris said that he could smell alcoholic liquor on Mr Roberts' breath at that stage. PC Harris asked Mr Roberts to take a breath test and asked him to wait there whilst he fetched the test kit from the police van. As PC Harris reached into the van, he saw Mr Roberts running away past his car and along the fence towards the compound gates. PC Harris concluded that Mr Roberts did not wish to be breathalysed and was trying to escape. PC Harris shouted to Mr Roberts to stop. He did not. PC Harris shouted to him again to stop. He said that if Mr Roberts did not stop he would send the police dog. Mr Roberts did not stop. At that stage PD Oscar was taken out of his cage in the van.

PD Oscar did not have a collar on him nor did he have a leash. The judge found that at first PC Harris held the dog by the scruff of his neck. PC Harris called to Mr Roberts again to stop and said that he would otherwise let the dog on him. Mr Roberts did not stop but ran towards the compound gates. PC Harris then shouted "Stop him" to the dog, which is the dog's order to go and seize a man who is running away.
...
When the dog was let go, Mr Roberts was trying to climb the compound fence. It was accepted at the time that the dog was a well-trained police dog and that PC Harris was a well-trained police dog handler. The dog was trained to look for someone running and then to try and stop that person. The dog would try to grab the person's right arm to achieve this object. If the person stopped running, the dog would circle the person or stand back and bark.

PD Oscar ran towards Mr Roberts and barked at him. Mr Roberts failed to climb over the fence and dropped to the ground. At that point the dog did not bite Mr Roberts. PC Harris, who had a torch, was trying to get in radio contact with other police officers to assist him and he was also trying to catch up with Mr Roberts. As he did this, Mr Roberts was saying to the dog "Get off, stupid dog" or words to that effect. He was also raising his arms so that the dog could not get them and he was batting and pushing the dog off.

PC Harris saw PD Oscar bite Mr Roberts' right arm as Mr Roberts was running along the fence, which was on Mr Roberts' left side. This slowed Mr Roberts down and he tried to kick the dog, who held on to Mr Roberts' arm. At this point PC Harris caught up with Mr Roberts and the dog but PC Harris was then hit across the throat by one of Mr Roberts' arms. PC Harris continued to tell Mr Roberts to stand still but he got no response. He asked Mr Roberts to stop and give himself up, but Mr Roberts ran towards his car, saying at some stage "Get lost."

At this point PC Harris had hold of PD Oscar. PC Harris warned Mr Roberts again that if he continued to move he would send in the dog. PC Harris did not want Mr Roberts to get back to his car as he did not know what might happen then. PC Harris warned Mr Roberts again but he took no notice.

PC Harris released PD Oscar to stop Mr Roberts and then PC Harris ran with the dog towards Mr Roberts. PC Harris grabbed some of Mr Roberts' clothes whilst Mr Roberts was kicking and moving his arms. PC Harris heard the dog yelp. PC Harris was hit on the right side of his face by Mr Roberts at some stage whilst PC Harris was trying to restrain Mr Roberts and get him onto the ground. There was a struggle between the two men and they fell to the ground together. At this stage PD Oscar was biting Mr Roberts, but PC Harris did not know where. A police dog is trained to bite a person who is fighting a police officer and who is not complying with an order from the police officer and who is on the ground. Moreover if the dog is punched or kicked the dog is trained to fight back.

PC Harris then called off the dog."

OK: If you read that, which Mr Harris agreed for the purpose of his appeal was accurate, you, if you are like me, do not understand what chance of success Mr Harris had in the Court of Appeal.

This is the core of the appeal:

Mr Roberts was a 57- or a 58-year-old man who had drunk considerable amounts of alcohol, as PC Harris believed he had. Mr Roberts could not therefore be guaranteed to react sensibly if the dog was released on him. His reaction was unpredictable. Moreover PC Harris knew that there was a range of reactions that a person who was drunk might have to a dog released to stop him.

Thus, even though being old and drunk would not be a defence to the offences Mr Harris committed those facts did entitle him to damages for the manner of his arrest.

Wow! The legal profession hits a new low?

Oh, PD Oscar seems to be an excellent cop, now sadly dead. Here is what his handler said about him:

PC Harris said that Oscar's death had come as a bitter blow: "He was very special and excelled as a police dog, a pet and a very good mate."

Be ashamed Mr Walker. Be very ashamed.

An eye for an eye will make us all blind

I previously posted this as my Christmas message but you really should watch it.

Sportsmanship: Could it happen today?

The "tie" in the 1981 London Marathon

A Happy Ending: Coventry City Council Forced To Pay For Voluntary Care Provided By Good Samaritan

ANTONY EDWARDS-STUART QC
A WISE JUDGE

A child, kicked out of his home by his step-mother, was taken in by Elizabeth Casey.

Terry (the child) had had a lot of bad luck: his mother had died, his eldest brother had died, his other older brother had moved in with Ms Casey.

He had one piece of good luck. Ms Casey took him in when his step-mother, with at least the acquiescence of his father, kicked him out of the family home.

Ms Casey was given the impression by the local Council that she would receive financial assistance.

They reneged on an untrue technicality.

No surprise there.

Mr Antony Edwards-Stuart QC sitting as a Deputy High Court Judge has ordered them to pay. Read the case.

There is a lot of technical legal analysis of the law in the judgment but you can read that for yourself if you wish. The only part I will quote here is this:

"Terry has remained with Ms Casey, with whom he has been very happy. She has cared for and supported him ever since, almost entirely at her own expense. He is now 17 and attending a carpentry course at a City College in Coventry. Ms Casey's kindness to Terry reflects enormous credit on her and her care has been beyond reproach."

Result = Good judge. Very nice lady. Justice served.

The wriggling silly Council was Coventry City Council. May they live in infamy.

It Is Wrong To Bite Ears off Mentally Ill People: Landmark Legal Decision!

FB had an ear bitten off in the course of a dispute over a card game. The accused HR admitted there had been a "silly quarrel" in the course of a card game but denied biting FB's ear off. There were others present and one of them might have done it. He simply had not noticed who. To his great credit "HR made it clear that he was not suggesting that FB's ear might have been bitten off by a passer by". He accepted that it must have happened inside.

HR accompanied FB (with others) to hospital. FB said:

"...before they left he saw HR take from his mouth the piece of FB's ear which had been bitten off but then put it back in his mouth. On the way to hospital HR threatened violence to FB's family and himself if he were to report the matter to the police. The others joined in telling him to keep his mouth shut. At the hospital two police officers were called. FB initially told them untruthfully that he had lost his ear in an incident on Camden High Street, because one of the others was still present with him and he was scared about the threats which had been made".

With HR's creditable admission that this was not a passer by attack this seems to me a credible account and easily capable of belief by a jury.

However, the Director of Public Prosecutions through counsel instructed by the Crown Prosecution Service decided on the day of trial to offer no evidence against the accused. Two barristers concurred in this decision. It was reached as a result of a report by a Dr C that said that "FB had a history of psychotic illness in which he at times held paranoid beliefs about certain people and also suffered auditory and visual hallucinations".

This was an atrocious decision. The barristers have been given anonymity too, however.

It was also the case that FB had never held paranoid beliefs about HR, held no hostility towards him and had insight into his condition.

The barristers misread Dr C's report.

There was a case to be put before a jury.

Luckily, the application for judicial review of the barristers' decision succeeded. Lord Justice Toulson concluded that "the decision to terminate the prosecution was unlawful".

Unluckily, "because it was immediately followed by the prosecution offering no evidence, it was also irreversible".

So, HR will never face trial and FB will receive £8,000 in "just satisfaction" from the DPP.

Is that just satisfaction? A trial would have been but then I am not a criminal lawyer. If FB was not to have that then my non criminal lawyer opinion is that £8,000 is paltry recompense. I doubt, however, whether HR is worth powder and shot in a civil action. It might be nice if FB's legal advisers would launch one anyway. Just to show the bastard.

One last quotation from the detective constable involved when she told FB of the decision not to prosecute:

"The claimant was upset; I could see tears in his eyes. He kept on asking me if he could leave - he didn't want to sit and discuss the matter further. I asked him if he was ok to travel and he left the court building".

Trent Health Authority Guilty of Abuse of Power but No Redress for Victims: A Monstrous Injustice?

I am conscious of the need for a sub-editor to work on a title such as the above but read this...

Trent Strategic Health Authority* has been held guilty by the House of Lords of ruining Mr and Mrs Jain's nursing home business and causing them "serious economic harm" on the basis of a "without notice application that ought never to have been made".

[*Note: Trent's liability arises as successor to the Nottingham Health Authority, as is made clear in the judgments. But "they inherit any liability incurred by their predecessors". ]

Yet, Mr and Mrs Jain have no redress under English domestic law and will receive no compensation.

All of the law lords expressed great sympathy for the Jains and reached this second conclusion "with regret" for their "undeserved fate".

Many will be be of the view that where a government established body causes financial ruin to those subject to its authority AND is found to have behaved wholly improperly BUT its victims have no remedy THEN it follows that:

(a) something has gone badly wrong with the law; and

(b) a serious injustice has been allowed by the law to happen.

This is simply a logical proposition based on underlying assumptions concerning morality and justice. The assumptions are shared by most who live in democratic societies (of whatever religion or none). Such people may struggle to understand this decision but only if they are not also lawyers. We lot are used to the discordance between the law on one hand and justice on the other. It's one of the things that get us a bad name.

You should read the judgments by following the title link if you want to see how this discordance occurs.

Let us look at what Trent did (this is paragraphs 6-9 of the judgment of Lord Scott of Foscote):

"6. Mr and Mrs Jain's only recourse was to appeal to a Registered Homes Tribunal. This they did. But there was no procedure available for an expedited appeal and no procedure enabling a stay of the magistrate's order pending an appeal to be obtained. We were told that the procedures under which appeals to a Registered Homes Tribunal can be made lead to a minimum delay of six weeks before an appeal can be heard. In the event, Mr and Mrs Jain's appeal was not heard until February 1999, over four months after the order had been made, and, not surprisingly, by the time the appeal was heard irrevocable damage had already been done to their nursing home business, with an adverse knock-on effect on other assets that they owned.

7. The appeal, heard by the Tribunal on 8 and 9 February 1999, was a resounding success. But the success came too late to afford them more than the satisfaction of vindication. The Tribunal, having heard evidence from the Authority in purported justification for the action they had taken, did not call for any evidence from the Jains in response and were scathing in their criticism of the Authority. In the Tribunal's nineteen page Reasons For Decision one reads of the inclusion of irrelevant and prejudicial information in the statutory statement that had been placed by the Authority before the magistrate, of insinuations by the Authority of abuse of residents notwithstanding the absence of evidence sufficient to justify any charges of abuse, and of untrue suggestions by the Authority of failure by the Jains to comply with various statutory regulations. Some of the complaints made in the statutory statement about the running of the nursing home did, in the view of the Tribunal, have some substance but, commented the Tribunal, "none warranted the immediate closure of the home". They said that "there was no reason for supposing that the residents could not properly have been protected by proper monitoring by the inspectors and the provision of advice where necessary". The statutory statement had complained that building works of improvement being carried out at Ash Lea Court had produced an unsatisfactory physical environment for the residents, but the Tribunal noted that there was no evidence that the dust from the building works "posed any risk to the life or health of the residents" and concluded that the conditions at Ash Lea Court had not justified an application for an order under section 30 :

"… the respondents have wholly failed to persuade us that an application for an order cancelling registration under section 30 was an appropriate way of meeting [the Authority's concerns about the running of the nursing home]"

8. The Tribunal was particularly scathing about the Authority's decision to make their application ex parte and without notice to the Jains. While accepting that there had been "no bad faith" on the part of the officials who, on behalf of the Authority, had been responsible for making the application, the Tribunal said that they could see

"… no justification whatever for the failure to warn [the Jains] that the application was to be made"

So the Tribunal allowed the appeal, set aside the magistrate's order of 1 October 1998 and expressed, as a coda, their regret that they had no power to order the Authority to pay Mr and Mrs Jain's costs: cold comfort, no doubt, for the Jains.

9. The upshot of this sad story is that Mr and Mrs Jain's nursing home business had been ruined and serious economic harm had been inflicted on them by an ex parte without notice application that ought never to have been made".

Well, there you go Mr and Mrs Jaine. Trent are wholly discredited, have abused their powers, you have been ruined and all you get is "vindication". Oh, you can try your luck in Europe if you like. You will need to finance it if you can or get funding from the LSC.

You might also sympathise with the Jaines in respect of the finding of no bad faith. Read all of the judgments. I do.

An American Litigant in London

The case is Barclay v British Airways.

I wonder how this case would have been decided in the USA. Perhaps, someone will enlighten me.

Similar fact cases could be litigated in any country that is party to the Montreal Convention 1999. There was no dispute as to the facts of the case and everything turned on the construction of Article 17.1 of the Convention:

[British Airways] is liable for damage sustained in case of death or bodily injury of [Beverley Anne Barclay] upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

So there was only one question: Did the agreed facts constitute an "accident"?

The Agreed Facts

I summarise the key agreed facts as follows:

1. The aircraft was in normal working condition and all applicable aviation regulations had been complied with.

2. As she lowered herself into her seat, with her body weight towards the right, Ms Barclay's right foot suddenly slipped on a strip embedded in the floor of the aircraft and went to the left.

3. Ms Barclay suffered injury in consequence of 2 above.

4. Ms Barclay had no remedy in contract or negligence but only under the Convention and only if she had suffered an accident.

This is only a brief summary and you should refer to the report for fuller details.

No Win No Fee?

You may by now have formed the opinion that this was a "brave" claim. But it went to the Court of Appeal and I, at least, would not have taken it on a no win no fee basis. Of course, Ms Barclay may be that rare litigant who is rich enough to fund speculative litigation regardless of advice because she is determined to have her day in court as a matter of principle.

Well, someone got it badly wrong.

This is Part 1 of a 2 part post. Look tomorrow for Part 2: The Decision.