Monday, 27 April 2009

Odds and ends...

The above clip is from the Kinski remake of Nosferatu the Vampyr, which naturally takes me to smeargate and unfounded rumours about Tory MPs. The splendidly named Nadine Dorries is threatening to sue over some allegation she did something or the other. The allegation is of course completely untrue. Here is the terrible truth: Dorries is 'tasked' (another loathsome neologism that ought to be banned) by Conservative Central Office with obtaining the blood of virgins to be fed to Thatcher to preserve her (Thatcher, that is and not Dorries) in her un-dead status. There was one unpleasant incident when Dorries, finding herself a bit stuck on the virgin front (the permissive society etc) offered Thatcher, by then in the advanced stages of blood withdrawal, Ann Widdecombe who though technically qualifying was not to Thatcher's liking at all. Thatcher attacked Dorries and inflicted nasty throat wounds. Since then Dorries has been careful with her choice of victim. In fact the above clip is not a re-make of Nosferatu the Vampyr at all but Dorries doing the rounds. Honest.

Random fact the rabbit didn't know until last week - Procul Harum (a popular beat combo from the rabbit's youth) was named after someone's cat.

Least surprising headline of the week: something to the effect that the Israeli Defence Forces had investigated themselves as regards any human rights abuses/war crimes while dishing out the Guernica treatment to the hapless population of Gaza. Having investigated itself, it concluded there weren't any. Well there's a surprise. Yeah. Right. Sure...

For the sake of completeness, following the comments of HHJ Gledhill (see last posting on HCA's) the relevant firm - Bullivant and Partners - have bitten back (oh dear, a lot of biting in this post) with a response

Allegedly the Judge said 'solicitor' in a funny tone of voice or something - allegedly...

Picasso's Guernica in case anyone didn't know...

Monday, 20 April 2009

Sorry to drag law into this...

The image is a combination of Hogarth's Beer Street and Gin Lane for no particular reason apart from why not?
A series of observations by His Honour Judge Gledhill QC as regards some HCAs (Higher Court Advocates) who appeared before him has come to my attention and deserves wider dissemination.


"Miss Roxborough, I will address you if I may, as during the course of this trial you are the only one of the 4 solicitors representing these defendants that I have had no cause to criticise. What I have to say therefore does not arise from your conduct of the case. Conspiracy to Defraud is on any view a most serious allegation and on conviction, on the facts of this case, merits a substantial term of imprisonment. It follows that each of the parties, including the prosecution, should be represented by an advocate, that is, a barrister or solicitor, who is experienced enough and competent enough to properly represent their respective client. Mr Fitzgerald has demonstrated that he has both those qualities essential to prosecute the case. As I made clear, during the course of the trial, I have been concerned that when prosecuting originally 5 defendants, 4 at trial, he should have had more assistance – either in the form of a junior or at least a representative of the CPS in Court. For much of the trial he has only had the help of the officer. Whilst that help has obviously been invaluable, there have been times when it has not been enough.

You will recall that during the prosecution case, I have on a number of occasions been critical of your colleagues who represent the other defendants. Basic rules, both of law and procedure, have been regularly broken. One solicitor in cross examination on 2 occasions addressed the jury directly. Another clearly had no idea what the rules of re-¬examination were. The jury were misled about one of the defendant's bad character, until it was corrected by prosecution counsel. Some of your colleagues appeared to have little or no understanding of hearsay. The list goes on and on. At one stage I was so concerned with the cross examination of a prosecution witness, that I had to rebuke your colleague in rather stark terms. I was concerned that that solicitor had neither the experience nor competence to adequately represent his client. I was also concerned that if his representation continued in a similar way, the stage would be reached when I would conclude that the defendant was not properly represented and that I would have had no alternative in those circumstances but to discharge the jury. Fortunately, that stage was not reached.

When I raised these concerns, I asked your colleague whether his client had been advised that under the rules governing the Legal Aid scheme, the defendant he had a choice of representation – either an independent barrister with sufficient experience and competence to conduct the case, or a solicitor with higher rights who had the necessary experience and competence. At first your colleague declined to answer the question. I will put that down to simply been taken by surprise at being asked the question. When I pointed out that I was not asking him to breach his client's privilege, but simply to tell me whether he or his company had fulfilled their duty, he told me that his client had been told of his right to choose the advocate who represented him in court. His reluctance to answer the question has caused me to consider asking the defendant the same question directly. In the event, I have decided not to do that.

I have also considered requiring the senior partner of your solicitors to attend and explain how and why this solicitor was selected to represent this defendant on such a serious charge. I have no doubt that that solicitor has done his best to fulfil his duties. However, his knowledge of the law, procedure and advocacy skills fall below that which is needed in this case. Of course, he did not deliberately flout the law and the rules. He simply does not have the experience necessary to conduct such a serious case. No doubt with time he can acquire those skills. I very much doubt that he had little if any say in whether he undertook this case. I suspect he was told that the case had to be kept in house and he was going to do it. Similar observations of the experience of your other colleagues could be made.

Why then was the solicitor selected to represent this defendant. Several considerations would have come into play. Firstly, the prosecution case was largely admitted and the defence was relatively straight forward and so it might have been thought that little experience of Crown Court trials was needed. With a moments thought, if that was a consideration, it was a very naïve approach – as indeed the events occurring during the trial have demonstrated. Perhaps more importantly, finances played an important role in deciding who would conduct the defence. By instructing an in-house advocate, the fee for representing the defendant at trial, the litigators fee, would be paid to the company, rather than to a barrister or INCA from without the company. The solicitors would therefore get both the preparation. fee and the litigators fee, in effect doubling. the income from the case. I am well aware that recent reductions in the rates of Legal Aid have hit solicitors particularly hard. On a practical financial level, it must be sorely tempting to keep the trial within the company. I understand that. However, if the consequence is that an accused person is not adequately represented, it is simply not acceptable — not acceptable to the defendant, and not acceptable to the public as it is not in the interests of a fair trial and therefore not in the interests of justice. In some cases, neither will it be in the interests of the solicitors company, because if a jury has to be discharged, they risk having Wasted Costs Orders been made against them.

This is not a question of a judge favouring barristers against solicitors, or one solicitor against another. It is about the principal duty of a trial judge to ensure that each of the parties have a fair trial. Every defendant who has the benefit of Legal Aid should be clearly informed of their right of choice of advocate, and that advocate, whether barrister of solicitor, should have the appropriate experience and competence to conduct the trial.

In the circumstances, I have decided not to ask the senior partner to attend court. The remarks I have made speak for themselves. I hope they are widely distributed through the criminal legal professions."
The rabbit ain't sayin' nuffin...

Thursday, 16 April 2009

Irritating words and phrases...

The pic is good, innit? It came up when I googled 'words picture'. The rabbit continues to be on the mend 23 days after accident. I can now get around on one crutch on flat surfaces and even take a few steps without a crutch at all provided there is something available to cling on to. Hopefully in a couple of weeks, I will be off crutches altogether but in the meantime I am slower and clumsier as regards anything physical but - with support - have been working since a week after the accident. the woman from the bank asked how long I was signed off for. I said I'm a self-employed barrister. We don't do signed off. Now to the main business...

There has recently been a report concerning words that are disappearing from the language. The report occasioned some minor media excitement. I have a different take on this, namely words and phrases that ought to disappear from the language. There are two rich sources of irritating gibberish: the drivel emanating from the disembodied voices that plague the public transport system and commercial newspeak. Actually, there’s a third: the mangled and excluding governmentese (I think I just invented a word that ought to disappear from the language!) spewed out by the political and bureaucratic class. Okay, there’s a fourth: sporting commentary by clunking cliché. Here’s a list of verbal rubbish for banning in no particular order of dreadfulness:

How are you spelling that? I’m not yet. The genesis of this nonsense is the bizarre belief that to ask ‘how do you spell that?’ is excessively confrontational

I won’t be a second. True, you’ll be a lot longer than that. Taken literally, the statement is preposterous. It’s usually a fob off prior to a protracted wait.

You are? This means ‘what is your name?’ I don’t know quite why, but there’s something about ‘you are?’ that makes me want to smack the questioner in the face

I can only apologise. This translates as ‘we fouled up but we’re not going to do anything about it’.

Planned engineering works. Our first railway related horror. ‘Planned engineering works’ are a device to torment anyone having the temerity to actually want to travel anywhere by train or tube on a weekend to no discernible benefit. Actually, it’s more the activity than the phrase that I want banned.

Customer. It’s not so much the word I object to but its inappropriate use by public transport systems. When I go to the corner shop I am a customer; when I get on a train I am a passenger.

Your call is important to us. This piece of commercial hypocrisy is regularly churned out when you are waiting forever on some commercial enterprise’s automated system waiting to speak to an actual person. NO IT’S NOT!!! Just my money.

This train is formed of eight carriages. What’s wrong with ‘this train has eight carriages’

Literally – or rather the misuse of literally as in ‘I was literally over the moon’. You were? Impressive trick! Football people infamously tend to be over the moon when they are not being as sick as a parrot.

This is not original – it came from an article in the Observer by the splendidly named Carole Cadwalladr: wags, camel toe (she confesses she really wishes she didn’t know what that one meant) and Croydon facelift. I agree as regards the disappearance of wags being no loss to the language but the infantile vulgarian in me rather likes camel toe and I am similarly fond of Croydon facelift. I even like Croydon, a place much patronised in journalistic cliché by people who have never been there.

Otherwise, I am resisting the temptation to make up rumours about Conservative politicians even more scurrilous and unfounded than the Smeargate ones (to the extent that we may gather what they are). I may have to give in to temptation...