Monday, 18 April 2016

“Textalysers” coming soon?

Policeman stops woman for texting but she is applying her make up
Targeting distracted drivers
I already have a great deal of experience dealing with breathalysers, maybe I’ll soon need to expand into “textalysers” if this plan from America takes off.

New York law makers are looking to introduce “Evan’s Law” that would allow police to use devices at the roadside to see whether drivers have been texting while driving.  The name comes from Evan Lieberman who was killed in a car crash when Michael Fiddle claimed he fell asleep while driving – in the UK Fiddle would likely have been guilty of causing death by dangerous driving if he made an admission like that but in New York it seems that wasn’t enough to bring a charge against him as a grand jury refused to indict him.  The parents of Mr Lieberman felt there was more to the story than Mr Fiddle falling asleep and were able to force the release of Mr Fiddle’s telephone records, which showed he had been texting sometime earlier, although a judge said that had not been a factor in the crash.

The textalyser aims to give police the ability to immediately check whether a driver has been using their telephone while driving.  If that were your phone you may well be concerned about police officers having access to the private data on your phone, such as pictures, message contents and so on.  Presumably, to have any real use the device would have to access all apps capable of acting as a messaging service not just the standard text messaging app.  That would mean it accessing your Facebook, Twitter, WhatsApp, Tinder, Instagram and so on accounts – if it can’t do that then you have to wonder what the point of the device is.  If it can do that then you should be worried about police officers having unrestricted access to all your communications on demand because in New York, the proposed law will mean that refusing to hand over your phone is an automatic one-year driving disqualification!

Supporters of Evan’s Law say that the devices will not reveal any personal information, such as the content of text messages or calls but that appears to be completely untrue with the manufacturer of this device saying it allows access to data such as, “call logs, contacts, calendar, text messages, media files and more”.  In the device brochure, the manufacturer makes clear that in addition they will allow police complete access to “app data, chats, passwords” and for all that data to be saved to the police’s device and shared with others by the police.

Jacy Good is one of the USA’s most vocal campaigners against distracted driving and said that, "[i]t is critically important that distracted driving laws [such as mobile phone use] are as strictly enforced as drink driving laws have become".

The problem with treating mobile phone use like drink driving is that the two things are nothing alike.  A person accused of drink driving will sober up relatively quickly but somebody accused of causing a fatal accident while texting on their phone can never un-send that text nor delete their mobile phone operators record of the message, so you have to wonder why police need immediate access to suspects phones at the side of the road.

These devices already exist and the manufacturer claims to have “more than 30,000 units deployed across 100 countries.”  They appear to be designed to allow police to quickly find information relevant to missing people or make quick connexions between gang members – given the brochure mentions that their device is, “… the primary choice for forensic specialists in… military [and] intelligence…” you might conclude that it’s also intended as a speedy covert data collection device for quickly and quietly taking all data from a phone without the owner being aware.

If they are used in motoring cases in the USA you can bet that they’ll make their way to the UK for deployment against British drivers.  At that point, we need to ask ourselves whether completely surrendering our right to privacy from government agencies such as the police is something we really want to be doing.  Ask yourself this, if the government gave the police the right to enter your home and demand all data from your home computer would you think that was acceptable?  When mobile phones hold the same (if not more) personal data about us, should we let police have access to that same data just because we happen to be driving a car rather than sitting in a sofa?

Wednesday, 13 April 2016

Celebrity threesome privacy injunction

Not actual footage of [CENSORED] or [CENSORED]
The hot legal news story of the past week has been the super injunction granted to [CENSORED] who is the spouse of [CENSORED], a world famous person in the entertainment industry.  The injunction revolves around claims that [CENSORED] cheated on [CENSORED] by having a threesome with two other people, one of whom is a “businessman” who would like to make a lot of money from his relationship with [CENSORED] by stabbing [CENSORED] in the back.  Presumably so he can retire early.  I don’t know, I’m just guessing here.

Understandably the newspapers want to print all the steamy news about how [CENSORED] did this, did that or did the other to his two threesome companions, all behind the back of [CENSORED] and then went on to have an affair some months later.  Meanwhile, for equally understandable reasons both [CENSORED] and [CENSORED] would like to keep the story a secret.

I have to admit that I haven’t thought much about injunctions since I left Bar School some years ago so I had to look up exactly what they are and when you can get one.  In short, an injunction either requires somebody to do something or, more commonly, prevents them from doing something.  To get one such as this celeb super injunction you must show the court that:

1.       You have a grounds to bring proceedings; and
2.       The other party is threatening to (or actually has) behaved unconscionably or is/has interfered with your equitable rights; and
3.       It is just to grant the injunction; and
4.       Damages would not be a sufficient remedy.

An injunction preventing the publication of information is a powerful weapon as we are seeing at the moment with many of us fully aware who the people involved in this case are but not able to say.  It is also increasingly an irrelevant and obsolete concept in desperate need of reform.

Because I live, work and write in England, I cannot say who is involved.  I know that publications in Scotland, the USA and, I think I’m correct in saying, New Zealand as well as at least one Irish blog have published the names, but I cannot say which publications these are because I might breach the injunction simply by pointing you in the direction of the information – obviously the High Court doesn’t know about Google – incidentally, Google points to the information if you know what to search for, how are they not in breach and being shut down?

Many of the foreign publications (yes I’m including you in that Scotland with your weird laws that you keep all to yourselves) are scared enough of the English courts that they have either refused to publish their stories online or, in one case, have blocked British internet users accessing the relevant stories.  Not the Irish one though… he does not give a crap!
Shh... don't tell the tabloids

The truth though is that if you know how to find information on the internet (and who doesn’t) then it is pretty easy to discover the identity of everyone involved, which makes a mockery of the injunction in England and Wales.  If you know how to make it appear that you are outside of the UK then you can even find the hidden stories.  The whole things reminds me of the ‘Spycatcher’ silliness where the Government of the day banned publication of Peter Wright’s book but, even in the pre-internet days, it was easily obtainable from friends holidaying abroad (including Scotland… again – what do you people have against our English injunctions eh??) who would bring sacks back to hand out.  In one go the Government turned what would have been a relatively minor and obscure autobiography into a worldwide best seller and its author into a millionaire.

Clearly there must be some balance between an individual’s desire for privacy, their right to a private and family life and the rights of the rest of us to know what’s what in the world.  I have to question whether the story of [CENSORED]’s partner, [CENSORED], fucking two other people and maybe having an affair a few months later is really in the public interest.  If the philander were a politician or some sort of campaigner for family values then I can see how it would be relevant.  But that isn’t the case.  The only thing I have seen that comes close to having any shred of public interest is that [CENSORED] is involved with a sexual health charity – but that strikes me as a very tenuous point.

It has been said that this injunction is wrong because if it’s allowed for [CENSORED] and [CENSORED] then it will allow politicians and other important people (Dominic Strauss-Khan’s name is often mentioned) to get away with anything they like.  One writer (who I cannot name for fear of letting you know where to find out the names of either [CENSORED]  or [CENSORED]  or even businessman, [CENSORED]) said, “Fear of public exposure is about the only way we can restrain wrongdoing by the rich and the powerful”.  This is true and yet wrong.  On the one hand, fear of being found out may keep many a bad man good.  But on the other hand, why should somebody be subject to a gross invasion of their private and family life just because they happen to be rich (or married to someone who is rich)?  Also, who are we to judge what counts as “wrongdoing” worthy of public condemnation when the activity is not a crime and has no bearing on the public at large? 

In a properly functioning system a judge should be capable of telling the difference between allegations against people in positions of power versus people whose sole claim to fame is that their partner’s job it is to entertain the masses.  Revelations about a politician may show the public that he is not a man of his word while maintaining the secrecy could leave him open to blackmail by those in the know.  Whereas, the public have nothing except titillation to gain from knowing that the woman on the tele in that programme about Norwegian pig farmers who solve crimes in their spare time fucked him off Emmerdale Farm one time while being watched by an elderly badger (I don’t know what celebs get up to but I assume it’s all weird).  Knowing what the politician who proclaims family values during the day while paying to be tied up, flogged and pissed on behind his wife’s back in the evenings tells us that he’s a man we shouldn’t trust.  But, what does our knowing that the partner of a celeb cheated on said celeb and no doubt caused serious damage to their relationship tell us?  I’d suggest nothing at all.

The story shows us two things.  First, national privacy injunctions aren’t really worth the effort – had the Sun published this story last week it would have blown over by now with most people shrugging and saying “who cares”.  Even the “new” revelation they held back for the weekday edition that [CENSORED] had an affair five months after the threesome would have attracted little attention.  But, because of the injunction it’s now been international news for a week and will continue to receive a huge amount of media attention until either the injunction is removed, which is probably will be, or until everybody in the country finds out anyway by a process of drip-feeding. 
None of these men is [CENSORED] or [CENSORED]
Secondly, if we are going to have privacy injunctions, and I think we should, they need to be seriously beefed up to allow enforcement internationally.  This sort of thing requires standardising of laws across numerous jurisdictions (something I know the #Brexiters hate) and a robust system allowing breaches to be punished wherever they occur.  This is a problem because Americans love their freedom of speech more than we love tea and are often very unhappy at anything that waters down that right.  While many European nations have even stricter privacy laws than us in the UK.  For it to work privacy and free speech laws would need to be standardised across the globe… good luck negotiating that.

In conclusion, is this story a damning indictment of the British courts?  No.
Does keeping the story out of the public domain hurt the public interest in anyway? No.
Is it simply a story being manufactured by the press to get their own way and sell more papers? Yes.

More importantly, it shows us that the concept of national law focusing solely on what happens within national boarders is something we will have to let go of in the future to make way for a well-designed and robust international legal system that can operate seamlessly across a variety of different jurisdictions.

Friday, 8 April 2016

Panama leak: What has David Cameron done wrong?

David Cameron

You may (or may not) be surprised to hear that I don’t think David Cameron did anything wrong by benefiting from the Panama-based offshore trust that his father set up.  In my opinion, if a person can legitimately reduce their tax liability then they should be able to do so.  I said the same back in 2012 when Mr Cameron described comedian Jimmy Carr as “morallywrong” to put his money into the K2 tax avoidance scheme

That said, a number of people are now saying that the fund with which Cameron was involved actually increased the tax liabilities of the Cameron’s rather than reducing them.  The rationale behind this claim is that being based in Panama may lead to high returns to off-set the higher tax.  This seem reasonable, but if that is the case I am confused why the Prime Minister hasn’t simply said so from the beginning and I’m even more confused why he felt the need to off-load this investment before becoming Prime Minister and saying he would crack down on tax avoidance.

So then what did Cameron do wrong?  Two things I think.  First, he misled the British public (and for once we should take a stand against politicians doing that); and secondly, he has been shown to be a hypocrite of the highest order.  You may say “well they’re all hypocrites” but that’s no reason to put up with it.  If all police officers were corrupt you wouldn’t argue there’s no point doing anything; well, I hope you wouldn’t anyway.

Mr Cameron has in the past few days told us that his tax affairs are “private”.  The same thing he said about Conservative MP and current London Mayoral candidate Zac Goldsmithwhen he was reported to have lodged much of his £200M fortune in the Cayman Islands.  After saying it’s all my own business and none of yours, Downing Street spokesmen, presumably on the instructions of Mr Cameron issued some more statements.  The second statement said Mr Cameron had “no shares, no offshore trusts, no offshore funds”.  Later clarifying that, “the prime minister, his wife and their children do not benefit from any offshore funds”.  A further statement told us that the Cameron family would not benefit from any offshore funds in the future.  To the casual observer this might look like a denial of any benefit from offshore funds.

The Prime Minister has subsequently confessed that he did in fact benefit from money kept in Blairmore Investment Trust, the Panama-based fund created by Ian Cameron, the PM’s dad.  He said that he sold “everything – shares, all the rest of it – so I can be transparent.”  If transparency is his thing, then you might wonder what all the stonewalling was about in the first four statements to the press!  You might also be curious to know what “all the rest of it” includes.

At this point, I’m going to ask again why, if Mr Cameron is not making any tax savings from these investments has he not said so?  He just kept issuing misleading statements about “offshore funds”. When interviewed by Robert Peston the Prime Minister did say that he had paid all his taxes, which is nice.  But, then why did he go three days talking about offshore investments rather than just telling us from the beginning, "yes I had some money abroad, I paid all my tax on it, thank you very much."

If the arrangement worked as Mr Cameron describes and he paid all his taxes then the sale of the assets that took place just before he became PM will show up in his Parliamentary declarations, won't they?  Well, what needs to be declared?  According to,

"MPs and Members of the Lords must declare certain financial interests.

The purpose is to provide information on any financial or non-financial benefit received by a MP or Member of the Lords which might reasonably be thought by others to influence their actions, speeches or votes in Parliament or influence their actions taken in their capacity as a Member."

Is the fact you've recently been invested in an offshore fund and are now proposing a crackdown on similar funds that help tax avoidance something that "might reasonable be thought by others to influence [and MP's] actions, speeches or votes in Parliament"?  I'd say it is, so it's surprising Mr Cameron neglected to declare this income.

Something about the PM’s claims strikes me as unbelievable at first glance – he says that he paid UK tax on the money he had put in Panama.  As somebody else said on Twitter, putting your cash in an offshore investment fund and then paying tax on it is a bit like smoking cannabis but not inhaling!  Jo Maugham QC is an expert tax barrister who has this to say about Panama:

“For the purposes of UK tax law, most tax havens are the same. There is no magic effective in UK tax terms that can only be performed in Panama. Moreover, Panama is not next door. It is not a British tax haven with the comforting familiarity such brings. It does not enjoy an especial reputation for trust and solidity.

People think of these things when they are choosing where to put their money. They are big disadvantages for Panama.

So there has to be a reason why you go there.

What Panama has offered – its USPs in the competitive world of tax havenry – is an especially strict form of secrecy, a type of opacity of ownership, and (if the reports of backdating are correct) a class of wealth management professionals some of whom have especially compromised ethics.

You go to Panama, in short, because, despite its profound disadvantages, you value these things.

And the question you should be asking is, what is it about this Mr X or that Mrs Y and his or her financial affairs that causes them to prioritise secrecy or opacity or (if the reports are correct) ethically compromised professionals above all else?”

Let’s imagine for a moment that these are not press releases issued by a spokesman but answers given by the PM in a court of law – how would they be treated?  If I were cross-examining him he would face some pretty strong questions on why he couldn’t have simply answered the questions on day one, day two or day three.  I’d also be attacking him for his past statements on tax-avoidance, particularly where Jimmy Carr, Zac Goldsmith and others are concerned to highlight his hypocrisy.  How would the judge act in summing up the case to the jury?  I’d expect him to have some guidance for the jury about how much faith can be placed upon the answers of a man who has repeatedly tried to dodge the question and has repeatedly given what the jury may consider to be misleading answers before them.

So, over to you ladies and gentlemen of the British public – are you content with a Prime Minister who calls others “morally wrong” but neglects to mention his own, very similar, investments?  Are you content with a Prime Minister who when caught out tries to wriggle out of it and mislead you?  Can you trust such a man to lead you and to take decisions in your best interest rather than in his own?

It’s your decision.

Wednesday, 6 April 2016

Mitigation: the art of not putting your foot in it

Judge hearing a plea in mitigation
"What the actual feck did you just say, Mr Diable?"

One thing all advocates need to learn is how to put mitigation in the best possible light.  A very common mistake, one I see happening all the time, is advocates who blame a client’s misfortunes on their conviction, e.g. any sentence that begins “As a result of this conviction Mr X cannot…” is usually going to go wrong.

Before I move on I am going to make clear that I am not criticising any individual mentioned in this post and that I was not in court for the events described so I am relying wholly on press reports.  There are many reasons why an advocate may approach a case in a given way and people on the outside will not be aware of those reasons.  The facts reported by the press are probably not a perfect reflection of how mitigation was handled and it may well be that they completely distort the undoubtedly wise words of Counsel; however, the reports do reflect advocacy that I see on a daily basis so I am going to treat them as if they are accurate.

In the recent Tulisa drink driving case, the advocate (a very experienced QC who probably doesn’t appear in the magistrates’ drink driving cases very often) is reported to have told the court that her client had already been punished after news of the incident leaked to the press.  The press also reported the advocate saying that Tulisa’s acting career is on hold because of the court case:

“She is a talent. She has been signed up by an agent in Hollywood and is due to start an acting career there.

“Everything has been put on hold because of this. She has been unable to work until this is resolved.

“The conviction will cause her difficulties not only entering the US but also working.”

Evoking a sense of sympathy in the magistrates’ minds for the defendant is a good plan that does work, so why is the reported approach wrong?  For me it comes across as an attempt to say “I shouldn’t get such a harsh punishment because I’ve suffered as a result of this”.  Well if you lost a leg then maybe, but in most cases it is just asking for a furious judge to point out that the reason Tulisa (or whoever the defendant may be) has suffered is because she committed a crime and she should have thought about the consequences before she did it – in a flash any sympathy for the defendant is gone.  I have seen this happen.

The statement also appears to contain elements that are difficult to believe – if I were a judge and didn’t believe the mitigation I’d not be very lenient.  A pending court case does not prevent you leaving the country unless there is a specific bail condition, so I have no idea why should could not have travelled to the US and returned to the UK for the hearing.  I have had clients accused of drink driving who have nonetheless gone on to begin careers in the USA both during and after the life of the court case.  Yes, it causes some problems but nothing that requires a career to be put on hold.  In any event, we come back to the reaction of any sane judge who should be demanding to know “so what?”  A reasonable judge should be asking, “well if Tulisa knew this would cause her so many problems then why is she crying to me about it?  Why didn’t she think about that before she drove?”  A very angry or cheeky judge might even add, “Why didn’t she simply take a cab – she can obviously afford it if she can afford to hire a QC to come along to court today?”

The advocate went on to say that the court should take into account Tulisa’s “celebrity status” and the “humiliation” that came with the publicity.  Asking a court for special treatment because you are famous makes me want to weep – I can’t imagine how that could possibly sound good.  Again, any reasonable court should be saying that these are things she brought on herself.  In any event the humiliation is no different to that suffered by anybody who’s conviction is reported in the local papers – true it may not be reported worldwide but everybody that person knows could well read about it, I think that will seem just as humiliating to anybody else.

When you are mitigating you often want to express your client’s remorse and the big problem with all of these approaches is that they paint a picture of somebody who is upset about their arrest and conviction because of the effect it is having on them; i.e. it is not genuine remorse.

I don’t know what Tulisa paid for her QC, but £2,000+ wouldn’t surprise me.  I’ve certainly had clients insist on instructing senior juniors who have charged £1,500 for a similar short hearing at the same court.  I expect she instructed solicitors, who will have charged her a similar fee to the QC, if not more (there are certainly firms who ask for £8,000 up front when you contact them).

The press reports a reading of 54mg in 100ml breath so what sentence would Tulisa expect for that?  The sentencing guidelines indicate a starting point of 12 to 16 months disqualification and a fine.  Tulisa was banned for 15 months and fined.  This is at the higher end of the sentencing range and suggests the bench were not impressed by the mitigation put forward.  On the facts reported, I would have expected this sentence to be imposed on an unrepresented defendant.

What would be a better approach for an advocate to take?  I also ways pick one or two themes to talk about in mitigation and then craft my words around those.  Based on the reports, I’d be looking at themes of remorse and change.

First, I would get rid of anything that suggests this person deserves special treatment because of who they are – they don’t and it undermines both of my themes. 

I’d begin with remorse – not just say it but show it by taking the court through how their actions have affected them and others around them.  I would want to include character references at this point to show the client’s normal personality and tactfully seek to cut out their offending behaviour from their normal everyday persona.  

The we move on to change, I would want to show the court that something has changed since the offence – not just oh I can’t go to America and make millions quite so easily but rather go through how the impact of their arrest, the fact of their offending and the humiliation that the conviction brings has brought about a change in the way the client approaches decisions and thus why they are unlikely to make a similar decision again.

I would definitely mention the difficulties that the conviction will cause to the defendant but I wouldn’t linger on them and I would emphasise that these are nobody’s fault but the defendants – there some sympathy is evoked and no judicial wrath has befallen us.

There are circumstances where I would linger on the impact to the defendant because there are circumstances where there is authority that such things should reduce the disqualification, but this is not one of them.

The offence is aggravated by the crash, but it is not a serious one and no injuries were suffered – it’s important to address the aggravating factors and mitigate them.  I would probably stick this in at the beginning as it will flow well from the prosecutors opening of the facts plus if you put it at the beginning you don’t finish by talking about crashes.  First impressions are nothing; last impressions are everything (well nearly).

I’d also be looking to bring in a discussion of the law.  I would want to convince the court that the disqualification period should be reduced to the minimum ban possibleto reflect the defendant’s early guilty plea.

Does this work?  Yes it does!  Recently, I had a lady client of similar age to Tulisa who blew 75mg in 100ml breath.  The Sentencing Guidelines say a 17 to 22 month ban.  She got a 12 month ban plus a three month reduction for completing the drink drivers rehabilitation course!  In another case, my client, Mrs B, blew 50 and received a 12 month ban, again reduced to 9 months following completion of the course – in that case the district judge said that, “I have a great deal of sympathy for Mrs B… I do not enjoy [imposing the driving ban] because Mrs B is ordinarily a totally law abiding person.”

On a side note, I do wonder if Tulisa was treated a little more harshly because of her celebrity.  It is very rare for somebody accused of drink driving to be interviewed and kept in custody for 22 hours.  Also, I think the court was unreasonable in requiring her to state her address in open court.  I have had situations in the past where courts have accepted a written answer to the question – I don’t see any reason why they couldn’t have done so in this case.

Tuesday, 5 April 2016

Fixed fees v hourly rates

Judge examining a very reasonable bill from London Drink Driving Solicitor
"Are you sure you're not undercharging, Mr Diable?"

The Legal Services Board (they oversee the legal services regulators – they’re the bosses bosses boss) has published research showing that firms charging fixed fees are likely to be cheaper than those charging hourly rates.  This is something most of us in the legal services industry already knew.

At London Drink Driving Solicitor, we think that we should be providing an excellent service for a reasonable price.  That doesn’t mean the cheapest - you can get cheaper and with some of those firms you will get a worse service, trust me I’ve reviewed some of their files for unhappy clients.  But what it does mean is that when you instruct a solicitor like me who is working on a fixed fee you know what you are going to pay.

Let me give you an example, I currently have a civil law solicitor doing some very simple debt work for me.  He originally estimated £500 for the entirety of the case.  So far I have paid him £1,825 and the case hasn’t even got a court hearing yet!  Unsurprisingly he’s charging me by the hour.  That’s great for firms because they can estimate a fee and then if they decide case is "more complex" than they expect the fee can go up.  They don’t run any risk because if you as a client don’t like it and refuse to pay they’ll stop working on your case!

Whereas, if I say to a client “I will charge you £X” then I know I have to get the fee correct first time because there is no option to raise the price later.  This is easier for me because I have specialised in drink driving law for years now and am very good at spotting the issues in cases so I rarely get it wrong.  But, from a client point of view it doesn’t matter if I get it wrong because I still have to provide them with the service so if I were to undercharge them they get an even better deal.

Let’s take a typical case I conducted recently.  The client, was accused of failing to provide a specimen of blood for analysis.  In preparing that case, I held consultations with the client and his witnesses, I prepared witness statements, reviewed evidence and prepared for two trials (two because the court treble booked the first trial; this is quite normal sadly).  I’m looking at the claim for payment I submitted to the government agency that refunds legal costs and I can see that preparation took a total of 31 hours!  There was 6 hours and 30 minutes of travel, no waiting, 20 letters and about five hours of advocacy. 

At an hourly rate that fee would total £7,525.  Looking at my total invoices to that client he was charged a total of £3,600 for over 42 hours’ of expert legal work by a specialist solicitor that resulted in an acquittal.  By the way, that's 53% less than if the client paid by the hour!  

Although, an innocent defendant can claim their legal costs back from the government it makes no difference to how much you get back whether you pay £7,525 or £3,600 because the government has put a cap on what you can claim.

So, should you be paying solicitors by the hour or on a fixed fee basis?  That’s a decision for you, but it pays to speak with an expert who knows what work is needed on a case and who can keep costs down.

If you do need a solicitor who charges reasonable fixed fees you can reach me on 020 8242 4440 – just saying.