Friday, 31 August 2012

Apple v Samsung round 2

I have just read an interview on the BBC news website that makes me think an appeal could be coming from Samsung against the jury finding that they infringed Apple's patent.

In England and Wales, we do not have juries for patent disputes any more.  Nowadays juries are used only in criminal and coroners courts.  When a jury does sit in a criminal court it is illegal for the press to report on the deliberations of the jury.  In fact nobody should even be asking any jury member what was discussed in the retiring room let alone reporting it.  Now, I know things are different abroad, which is interesting because you get to hear how juries reached their conclusions and that is helpful to British lawyers, like me, who may want to adapt particular elements of their presentation where a trend appears to present itself.

In this country, juries take the law from the trial judge especially where a jury member has a different opinion on the law!  Lawyers, including judges, are now allowed to sit on juries in English criminal trials.  In one case, a judge of the Court of Appeal (Criminal Division) found himself sitting on a jury in a criminal trial.  I'm sure the trial judge was a bit nervous!  But, the appeal judge promised that he would take the law from the trial judge and would not give his legal opinion to other members of the jury.

In the Apple v Samsung case, the jury foreman says that because he works in the tech industry in California (co-incidentally where Apple is based) he has a good knowledge of US patent law.  At one point, he states that had he not been on the jury with his specialist knowledge then the jury may have reached a different conclusion! 

In another portion of the interview, the foreman suggests that while in the jury room he analyised and fully considered the source code provided by Samsung for it's pre-iPhone and post-iPhone telephones.  He says:
"... when we looked at the source code - I was able to read source code - I showed the jurors that the two methods in software were not the same, nor could they be interchangeable because the hardware that was involved between the old processor and the new processor - you couldn't load the new software methodology in the old system and expect that it was going to work, and the converse of that was true."
The important part to my mind is that he appears to be saying that he read the source code and, effectively, provided evidence to the rest of the jury about why Samsung's case was wrong.  It's worth remembering that this may well be what the American's call BS.  They were only deliberating for 21-hours and had 700 questions to decide upon so he can't have spent all that long pouring over code.  It may well be a man trying to big himself up.

In this country a jury must decide the case on the evidence before them, they should not be seeking outside evidence or generating their own evidence.  I don't know if that rule is different in Californian civil courts.  If the rule is the same in California then this could be a good ground of appeal.  In the British courts we had a jury producing their own evidence by smuggling a Ouija Board in to the jury room and attempting to contact a murder victim to ask if the defendant was guilty or innocent.

These are just a couple of points that occur to me from reading the foreman's interview transcript, I'm sure a patent lawyer with all the evidence could find more appeal points.

Big American companies are famously litigious... let's find out whether Big South Korean ones are too.

Friday, 24 August 2012

Tactics

I was in the Crown Court yesterday for a case.  My client has two co-defendants.  The best I can say about the charges they face is that the prosecution lawyer who drew them up was being very imaginative at the time.  It seems to me that the Crown have no hope of succeeding as the indictment stands.

There is another charge that could be brought in place of the current very imaginative one.  If the Crown were to change charges then the defendants would suddenly struggle to win their trial; they still have a chance but its a much more close run thing.

My learned friends have also noticed this deficiency.  Much to my frustration, they have chosen to handle it by listing the case for a dismissal argument.  This is basically where you tell a judge that the prosecution case is hopeless and ask him to throw the case out of court without a trial.

A dismissal argument is all well and good, but all they have done is highlighted the problems with the current charge to the prosecutor and thus made it far more likely that the Crown will amend the indictment to solve the problem.

Had they done it my way, we'd all have saved ourselves the effort of drafting a dismissal argument, there would have been a much better prospect of the Crown failing to amend the indictment and we could have argued the case out at half time.

As it stands, the prosecutor is already talking about amending the indictment on the next occasion.

It's all well and good showing off that you've spotted a problem in the other sides case, but I fear this will be a Pyrrhic victory.

Friday, 17 August 2012

Pussy Riot

Let us for a moment imagine a scenario where a group of balaclava wearing individuals burst into St Paul's Cathedral and staged an impromptu foul mouthed protest against the British government in which the protesters sung (having seen the protest video I must say I use the word "sung" very loosely) an expletive filled re-write of the Lord's Prayer.

Would Pussy Riot have committed a criminal offence in the UK?  Yes, it is highly likely that they would be committing an offence under s. 4A of the Public Order Act 1986, which makes it an offence to intentionally "cause a person harassment, alarm or distress", by using "threatening, abusive or insulting words or behaviour or disorderly behaviour".

Is storming a church and offending the people therein sufficient to make out the offence?  I don't know what the lyrics were, but the reports indicate that they were highly offensive.  Would that cause a group of nuns and priests distress?  Quite possibly.  Certainly, in Russia they all gave evidence that it did.  Would the storming of the church alarm those inside?  Again, the evidence seems to suggest that it did.

Because of the expletive filled version of the Lord's Prayer it is likely that they would be guilty of the more serious offence of religiously aggravated causing harassment, alarm or distress.

The basic offence carries a maximum sentence of six-months imprisonment.  The religiously aggravated form of the offence carries a maximum sentence of two-years imprisonment.  Both can come with a fine additional to the prison sentence.

If Pussy Riot had carried out their actions in the UK they would have been committing a criminal offence just as they were in Russia.  I seriously doubt that a defence of lawful protest would have succeeded in this country any more than it did in Russia because of the aggressive behaviour and lyrics seem to indicate that the whole point of the protest was to be as offensive as possible and thus garner as much publicity as possible.

I think a lot of people should get off of their high horses about the convictions, because they would have committed an offence in this country and quite probably would have gone to prison for it... anybody remember the idiot boy swinging from the flags on the Cenotaph?

The real issue, which seems to have only received marginal attention amid all the hype about the three defendants and the glamorous stars who have supported them in their plight, is the antecedents of the court and judge.  While I think that an English or Welsh court would also have convicted, I did not that this judge has now acquitted just one defendant in the last 140-odd to have come before her... that's a worse record than our magistrates courts!  Also, why is there no jury?  I've not heard that question asked at all.  We do have lay magistrates and DJs who sit sans jury here, but they can only dole out relatively short prison sentences.

That is, in my opinion, the scandal.  The press seem to have largely over-looked the real problems that this trial highlights while focusing on the women and their new celebrity supporters.

On a final point, it's also worth addressing the issue that this case has only been brought due to Vladimir Putin's dislike of being criticised.  Maybe, but it must have been obvious to such an experienced politician that he could have minimised the effect of this protest by ignoring it.  If he has them prosecuted to stop their message being spread then it's been a singularly unsuccessful effort on his part.

Bully Boy Tactics

The TV and press are reporting that Ian Brady's lawyer has been arrested for preventing a lawful burial by not revealing the whereabouts of Keith Bennett, Brady and Myra Hindley's last undiscovered victim.

First, it would seem that the lady who has been arrested is not in fact a lawyer so I'm not going to harp on about breach of legal privilege etc.  Instead I wanted to tell a short story about a client I represented a few years ago.

There was a rugby match at Twickenham and I ended up representing every single fan who was arrested that day... all five of them.  They were picked up on a Public Order Act offence, the details of which are not relevant.  Four of the men were released but one was further arrested for murder and kept in police custody.

I met the murder squad detectives and was given disclosure along the lines of: There was a murder in 1995 [I can't recall the year, but it was a while ago].  We know your man didn't do it and wasn't involved, but we think he can tell us who did do it.  Why haven't you asked him before, I enquired.  Oh we have, Sir.  We've arrested him four times now to ask about this.  I don't expect he'll be any more helpful this time but we've got to keep trying.

Speaking to the client he took the view that it was just Bob, the policeman, playing his games and an arrest for murder was nothing to worry about.  Client wasn't even interested in taking action for what would appear to have been a completely unlawful arrest. 

Unsurprisingly, the client was released without charge, although it did take a long while for that to happen.

The point is this: sometimes some police officers use bully tactics, like this blatently unlawful arrest of a potential witness for a crime they knew he did not commit in order to force the detained person to give information that the officer wants.

I would love to give chapter and verse on the law of preventing a burial without lawful excuse, but it isn't covered by any of the law books I have at home.  I have to say that I doubt that what the arrested woman has done amounts to the offence, although I could be wrong.  I do wonder therefore whether the arrest is in the same vane as that of the man I represented.

Friday, 3 August 2012

Cycle safety

This morning I have been reading some extraordinary rubbish in The Times about the wearing of helmets by cyclists.

It is suggested that making helmets compulsory would reduce the number of people cycling.  This claim is based on evidence from Australia where there was about a 30% decrease in cycling when helmets were made compulsory.

But, let's think about it for a minute.  I am currently looking to buy a bicycle and while you can get some pretty rubbish bikes for around £100, anything remotely decent seems to start at around the £399 mark.  You can buy a helmet, which, should you fall off, will substantially increase your chances of survival, for just £9.99 from Halfords.  Whether you're spending £100 or £1,000 on a bike (and incidentally one of my local shops has a lot of bikes at over £5,000 each!) an extra £9.99 is not going to break the bank.  In any event, you'd imagine that if cycle shops were concerned about a serious loss of trade they'd start running promotions that include a bike and helmet for a combined price.

So, cost isn't really a reason not to wear a helmet.

Another argument is that wearing a helmet causes cyclists to be more reckless... personally I find it difficult to believe that some cyclists could be more reckless than they already are, but the majority are as careful as any other road user.  This isn't a new argument, it has been used for many years in respect of safety devices on cars.  But, the fact still remains that if you wear a helmet while riding your bike you are more likely to survive an accident.

There seems to be an attitude among many cyclists that it is the responsibility of others to be careful of cyclists.  This is correct.  But, that doesn't mean that cyclists should not take care of themselves.  Car drivers have long been advised to drive defensively, which really means drive like everyone else is an idiot and out to hit you.  If you learn to ride a motorbike that's pretty much the training you'll receive and when you undertake advanced rider training you'll find it's all about how to make yourself safe and reduce the chances of you being hit and others hitting you.

The argument that requiring people to wear a helmet on a push bike will reduce cycling misses the point completely.  It's not about cost, because helmets are actually very cheap.  Nor, is it about cyclists choosing to ride recklessly if they wear a helmet - some of the worst motorcycle riders you'll see are the guys in shorts, t-shirts and trainers on very powerful sportsbikes, not the rider wearing all the safety gear (come off a motorbike at speed without the proper gear and you'll have no skin and there's a reasonable chance your feet could be ripped off!).  The question is whether personal freedom not to take care of yourself is more important than reducing deaths on the roads?

If you think that the right to make your own decision on taking care of yourself is more important then I presume you also think that you should not be required to wear a car seat belt or a helmet while riding a motorbike?  If not, then I don't really understand your position.

There have been calls recently to change the law to presume that the driver of a motorised vehicle is to blame where there is a collision between a peddle cycle and the motor vehicle.  I don't think you can have it both ways, either you take all reasonable safety precautions or you accept that you are at risk of being killed if there is an accident.  I hope that no such law is introduced, but if one is then I would hope that not wearing a helmet is taken as a presumption that the cyclist was not acting responsibly.

I am not in favour of cycling helmets being made compulsory, although people should be encouraged to wear them.  At the end of the day, if you don't wear a helmet then you're the one who will end up dead.  If you don't mind doing that to yourself and your family then it's a decision for you.