If you're a woman, you need to read this. If you're not, if you have a family member who's a woman, you need to read it too!
The Walk for One Million takes place on Sunday 7th October 2012 at Knebworth Park. It's all about Ovarian Cancer (OC). OC kills over 6,500 women in the UK each year. The survival rate is just 36% after five years. To put that into perspective, the five year survival rate for breast cancer is 85%, and quite rightly, the breast cancer charities aren't resting on their laurels! As is so often the case, the key is early diagnosis and this is where there has been a big problem with OC.
In 2005, my mother and my younger sister both died of OC, within seven weeks of each other. My mother survived eight years after her diagnosis. She didn't go through all the available treatments - by the time her cancer became resurgent, it just wasn't appropriate. By contrast, my sister survived just about two years, despite accessing all the mainstream treatments and at least one experimental one too. The difference, at least in part, was that my mother's GP was appreciably quicker to recognise the symptoms she was suffering and made an urgent referral to a consultant of the correct discipline, whereas my sister was less fortunate. She was eventually referred to a gastro-enterologist, but without the urgency. It was this consultant who realised who she needed to see and the disease was already well advanced.
This needs to change. The purpose of the Walk is to raise awareness of the disease and its symptoms with the public and with the medical profession. If women and those who treat them know the warning signs, there is a much better chance that sufferers will diagnosed quickly and receive life saving treatment. Please take the time to read about it at this link and visit the links in the text:
Diagnosing and treating ovarian cancer
Can you help this link to go viral? Think about tweeting, posting on facebook, linkedin, your own blog or anywhere else.
We shall also be raising funds for the continuing work of the charity in supporting sufferers and their families, raising awareness and researching treatments. I shall be walking as part of the fifteen strong Team Sarah, remembering my sister, who died almost exactly seven years ago. Please feel free to donate by visiting this link:
Donate to Target Ovarian Cancer
The popular press is getting a huge amount of flak these days for the misbehaviour of journalists. It's only fair, therefore, to give credit where it's due. The Daily Mail, in its Femail section, has been reporting regularly on the disease, it's symptoms and how it is dealt with. I can't recommend it highly enough for its single minded determination to make a difference - why not make the time to read some of the articles they have produced?
The Daily Mail on Ovarian Cancer
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Monday, 3 September 2012
Friday, 31 August 2012
Revenge is, well, undignified actually
There's been something of a minor surge in stories of people taking revenge on the ending of their marriages lately (it is the notorious silly season, after all). First there was the man who destroyed his wife's collection of designer handbags (plus shoes and clothes, of course) when she left him for a man she met while on holiday:
The handbags
Now there's the tale the husband scattering his wife's underwear along the public highway:
The underwear
Intimate information is another quite common tactic, such as intimate photos of your formerly loved one:
The compromising photo
And there's always a constant diet of cases of cutting furniture and household effects in half because "that's fair". Another favourite is publishing intimate photographs and videos of the person you see as having betrayed you.
I always wonder though, do these perpetrators really feel better as a result? More to the point, do they look better to their friends and families? For myself, it really speaks of immaturity. However hurt you feel, lashing out to cause suffering and for no other reason, is just about as undignified and humiliating as it gets. You show yourself as out of control and spiteful. Sure, I understand why Mr. Plews, the handbag husband, is annoyed. There must have been some relatively serious spending going during the marriage and on the face of it, there was a distinct lack of frankness from his wife about the new man in her life. Nevertheless, there is no dignity in revenge. Mr. Plews and these others come across as people unable to control themselves and the essence of living in a civilised society is exercising self control, especially with people who offend, hurt and annoy you.
It's probably worth noting that the underwear scatterer, Mr. Klutch, had just been served with a protection from abuse order by the court, to protect his wife. This rather suggests that the problems between them had been of a pretty significant nature event before then and that Mr. Klutch had been operating outside the normal boundaries even of hurt and upset husbands.
It's clear from these tales that courts are intolerant of this type of behaviour, and so they ought to be. English courts are just as capable of punishing this abuse as American ones, and of making orders intended to prevent it. Abusive behaviour takes an almost endless variety of forms, only limited by human ingenuity. The law is astute to be over prescriptive. If property is damaged or spouses and partners put in fear or distress, there are orders available to prevent future repetitions and penalties for those who perpetrate those acts.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
The handbags
Now there's the tale the husband scattering his wife's underwear along the public highway:
The underwear
Intimate information is another quite common tactic, such as intimate photos of your formerly loved one:
The compromising photo
And there's always a constant diet of cases of cutting furniture and household effects in half because "that's fair". Another favourite is publishing intimate photographs and videos of the person you see as having betrayed you.
I always wonder though, do these perpetrators really feel better as a result? More to the point, do they look better to their friends and families? For myself, it really speaks of immaturity. However hurt you feel, lashing out to cause suffering and for no other reason, is just about as undignified and humiliating as it gets. You show yourself as out of control and spiteful. Sure, I understand why Mr. Plews, the handbag husband, is annoyed. There must have been some relatively serious spending going during the marriage and on the face of it, there was a distinct lack of frankness from his wife about the new man in her life. Nevertheless, there is no dignity in revenge. Mr. Plews and these others come across as people unable to control themselves and the essence of living in a civilised society is exercising self control, especially with people who offend, hurt and annoy you.
It's probably worth noting that the underwear scatterer, Mr. Klutch, had just been served with a protection from abuse order by the court, to protect his wife. This rather suggests that the problems between them had been of a pretty significant nature event before then and that Mr. Klutch had been operating outside the normal boundaries even of hurt and upset husbands.
It's clear from these tales that courts are intolerant of this type of behaviour, and so they ought to be. English courts are just as capable of punishing this abuse as American ones, and of making orders intended to prevent it. Abusive behaviour takes an almost endless variety of forms, only limited by human ingenuity. The law is astute to be over prescriptive. If property is damaged or spouses and partners put in fear or distress, there are orders available to prevent future repetitions and penalties for those who perpetrate those acts.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Tuesday, 31 July 2012
Where does a profession end and a trade begin?
A colleague of mine drew my attention to an article last week in the Law Society Gazette. He was frankly perturbed and shocked by what he had read and I was disgusted. It's about referral fees and you would have thought that an accident lawyer like my colleague would have been able to take it in his stride, but not a bit of it! You can read the article here:
Solicitors demand a kickback from barristers
It seems that the referral fee culture has extended the range of its corruption right into the solicitors' profession. Solicitors requiring barristers to hand over a proportion of their fees for work done, or else they don't get the job. It all sounds a bit supermarket, doesn't it? You know, we want to run a special offer on crisps, so the crisp supplier has to drop his price by 50%? Mind, at least the consumer gets cheap crisps that way, unlike the solicitor's client!
Why is it that solicitors refer work to barristers anyway? There are two main reasons - to gain the benefit of the barrister's specialism for their client and to save their client cost. If a solicitor starts selecting a barrister on the basis of how much the barrister will pay the solicitor to get the work, this is all going to go horribly wrong. Let me explain why.
1. Expertise. When I am managing a client's case, there are often times when I need an in depth view of the law on a specific issue. I pride myself on being a broad spectrum practitioner. Specialism has its own dangers. It has been defined as knowing more and more about less and less. Or as I sometimes see it, as expanding one's ignorance at least as quickly as one's knowledge.
As a broad based lawyer, I can often see interactions which a specialist might miss - the interaction of divorce finances and insolvency, for example. However, there are frequently times when my client needs someone who has total mastery in depth of an area of law - cue the barrister. So my selection criteria are simple. Who is it that has that specialist knowledge? Put it another way, who is it that knows a lot better than I do? Furthermore, having good counsel available throughout the country means that I can act for clients regardless of location. The modern world of email and teleconferencing means that I am available to clients up and down the country and even abroad. Any court hearings can be attended by independent counsel. So expertise, both of solicitor and counsel, now become far more available to clients who are no longer restricted to using whichever firms are located near to them.
Now add to that a new selection criterion, who will give me a substantial kick back? Immediately I cut out of the equation a set of experts who would otherwise be well placed to assist my client - i.e. the ones who refuse. My client's available choice has been cut back sharply so that I can make money without working for it. What's more, the most highly regarded and in-demand barristers are the ones who are likely to have the least incentive to say yes. They have well established reputations and are not going to have to pay to secure work. This almost certainly means that refusing work to barristers who refuse to pay for it will mean the client gets the lesser experienced and able barristers and not the best available expertise. In short, the client loses out so the solicitor can cream off an additional profit.
2. Saving cost. I select the right level of barrister for a particular job. Not every case justifies using the most highly rated QC. In fact most of them don't. I'm looking for the right level of experience and expertise which can be bought at the right sort of price. Family finance cases are about money, pure straight and simple. Expend too much in legal fees and the whole exercise becomes self defeating. On the other hand, you can spoil a ship for a ha'porth of tar, so spending wisely on good representation can more than pay for itself. Using the right barrister can often be more economic than dealing with a hearing myself, even setting aside the issue of expertise. Frequently they can charge a lower fee than my time would demand.
Now add into the mix the idea that I'm going to demand of the barrister that s/he pay me 20% of his/her fee. What will happen to fees? Will the barrister meekly settle for a 20% income cut? Of course not - prices are bound to shoot up to compensate. And who will be paying those increased fees? Some remote insurance company, as in accident claims? No, it's going to be my client. So by demanding a cut of counsel's fees, I would have significantly increased the cost of the case to my client - the person whose interests I am supposed to be protecting. And what added value has my client received from me? Well, zip all, naturally.
Let me make myself clear - I already consider that my profession has gone to the dogs. Practices have grown up already which I find obnoxious. Solicitors are shamelessly trying to overcharge in contentious matters, from what I can see. If this practice becomes widespread, then it will simply show how utterly careless of their clients' interests solicitors have become. No, there is no way I will ever be persuaded to join in. My clients can have the benefit of counsel at a proper price. I shall do my work and charge for it - I shall leave counsel to charge at a proper rate for theirs.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Solicitors demand a kickback from barristers
It seems that the referral fee culture has extended the range of its corruption right into the solicitors' profession. Solicitors requiring barristers to hand over a proportion of their fees for work done, or else they don't get the job. It all sounds a bit supermarket, doesn't it? You know, we want to run a special offer on crisps, so the crisp supplier has to drop his price by 50%? Mind, at least the consumer gets cheap crisps that way, unlike the solicitor's client!
Why is it that solicitors refer work to barristers anyway? There are two main reasons - to gain the benefit of the barrister's specialism for their client and to save their client cost. If a solicitor starts selecting a barrister on the basis of how much the barrister will pay the solicitor to get the work, this is all going to go horribly wrong. Let me explain why.
1. Expertise. When I am managing a client's case, there are often times when I need an in depth view of the law on a specific issue. I pride myself on being a broad spectrum practitioner. Specialism has its own dangers. It has been defined as knowing more and more about less and less. Or as I sometimes see it, as expanding one's ignorance at least as quickly as one's knowledge.
As a broad based lawyer, I can often see interactions which a specialist might miss - the interaction of divorce finances and insolvency, for example. However, there are frequently times when my client needs someone who has total mastery in depth of an area of law - cue the barrister. So my selection criteria are simple. Who is it that has that specialist knowledge? Put it another way, who is it that knows a lot better than I do? Furthermore, having good counsel available throughout the country means that I can act for clients regardless of location. The modern world of email and teleconferencing means that I am available to clients up and down the country and even abroad. Any court hearings can be attended by independent counsel. So expertise, both of solicitor and counsel, now become far more available to clients who are no longer restricted to using whichever firms are located near to them.
Now add to that a new selection criterion, who will give me a substantial kick back? Immediately I cut out of the equation a set of experts who would otherwise be well placed to assist my client - i.e. the ones who refuse. My client's available choice has been cut back sharply so that I can make money without working for it. What's more, the most highly regarded and in-demand barristers are the ones who are likely to have the least incentive to say yes. They have well established reputations and are not going to have to pay to secure work. This almost certainly means that refusing work to barristers who refuse to pay for it will mean the client gets the lesser experienced and able barristers and not the best available expertise. In short, the client loses out so the solicitor can cream off an additional profit.
2. Saving cost. I select the right level of barrister for a particular job. Not every case justifies using the most highly rated QC. In fact most of them don't. I'm looking for the right level of experience and expertise which can be bought at the right sort of price. Family finance cases are about money, pure straight and simple. Expend too much in legal fees and the whole exercise becomes self defeating. On the other hand, you can spoil a ship for a ha'porth of tar, so spending wisely on good representation can more than pay for itself. Using the right barrister can often be more economic than dealing with a hearing myself, even setting aside the issue of expertise. Frequently they can charge a lower fee than my time would demand.
Now add into the mix the idea that I'm going to demand of the barrister that s/he pay me 20% of his/her fee. What will happen to fees? Will the barrister meekly settle for a 20% income cut? Of course not - prices are bound to shoot up to compensate. And who will be paying those increased fees? Some remote insurance company, as in accident claims? No, it's going to be my client. So by demanding a cut of counsel's fees, I would have significantly increased the cost of the case to my client - the person whose interests I am supposed to be protecting. And what added value has my client received from me? Well, zip all, naturally.
Let me make myself clear - I already consider that my profession has gone to the dogs. Practices have grown up already which I find obnoxious. Solicitors are shamelessly trying to overcharge in contentious matters, from what I can see. If this practice becomes widespread, then it will simply show how utterly careless of their clients' interests solicitors have become. No, there is no way I will ever be persuaded to join in. My clients can have the benefit of counsel at a proper price. I shall do my work and charge for it - I shall leave counsel to charge at a proper rate for theirs.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Tuesday, 24 July 2012
Pay peanuts, employ......?
I have
to say that it was with complete incredulity that I read an advert in the Law
Society Gazette last week. I recognise
that I am a little unusual in that I take the time to read the magazine. So many lawyers I know seem to take a
particular pride in not having the time even to remove the wrapper. Unfortunately, that risks meaning that the recipient
also doesn’t have the time to keep up on changes in the law and practice, which
is bad news for their clients.
Anyway,
there was this job ad. I wasn’t really
looking for a job, so I guess that I just stumbled across it. It was placed by a company called CrimeDirect
Ltd. It’s situated in North Shields in
the North East, so I did wonder just what direct crime it was in the business
of providing. Actually they serve
criminals rather than supplying crime, directly or otherwise. And, I hasten to add, those who are merely
suspects and who may be, and often are, entirely innocent. Specifically, they have the contract to
advise persons arrested and being held at a police station. The advice is provided over the phone rather
than face to face.
It’s
clearly a demanding job. They want duty
solicitors and accredited police station representatives to apply. As I used to have the dubious distinction
many years ago of doing just that myself, I read on. The applicants will work three shifts per
week. Each shift lasts a full 12
hours! Presumably there will be meal and
comfort breaks, though this isn’t specified.
Shifts run from 9 am to 9 pm and from 9 pm to 9 am and you have to be
prepared to work both – you can’t just opt for one or the other. The service has to run 365 days of the year,
so you have to be prepared to work on any bank holidays, including Christmas,
if that’s when you’re rostered.
All this
is, just as I say, very demanding. As a
solicitor or accredited representative you will have certain educational
qualifications. A solicitor will have a
degree. A representative will have
passed what I rather hope is a rigorous written examination and practical
assessments. If you a degree, presumably
you have student debt. So what can you
expect for this demanding job, supported by your previous studies and
qualifications?
£15,000
per annum. That equates to 8 quid an
hour. For enormously unsocial hours and
conditions. The national minimum wage, I
would remind you, dear reader, is just over £6 per hour.
The candidates
will be expected to advise suspects on matters related to their freedom from
imprisonment, so that’s a huge responsibility.
If a suspect exercises his/her right to remain silent after taking their
advice, that advice could potentially be picked over at length in court.
I don’t
know which is worse – that someone actually advertises this salary, presumably in
the belief that it constitutes fair remuneration – or that they may actually
find staff prepared to work on these terms.
Just what will they be getting for this money?
Back in the early 1990's, there was the Royal Commission on Criminal Justice. It was instituted after a number of prominent miscarriages of justice. It identified various common features of these - a failure by the prosecuting authorities to give proper disclosure, a lack of legal advice in custody, forced or false confessions. So the government of the day responded by limiting the obligation on the prosecution to provide disclosure and reducing access to legal advice. Oh, and altering the right to remain silent by qualifying it.
And now, without enacting anything, the legal advice to be given may be by an underpaid member of staff at the end of a 12 hour day, having worked all through the night. Perhaps even after a switch between an early shift and a late shift, with whatever effects that has on mental alertness and functioning.
I gave up criminal law and legal aid work over 10 years ago - why? Well, for one thing because my family had to put up with the disruption to family life of my being on call and being called out at all hours of the day and night, and the money just didn't make it worth it. But that doesn't mean that I stopped caring about justice, and there'll be even less of that around if this proves to be a "success"!
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Thursday, 19 July 2012
The referee's decision is final - even for the referee
Judges aren't allowed to dither. Judges have to decide. And once they've decided, that's it. They can't change their minds a few weeks later and turn back the clock. If they've got it wrong, the most they can do is give permission to one party or the other to appeal it.
L-B children
This case took a turn which must have come as a total shock to all the lawyers involved. It was a serious children case. On 15th December, following quite a long hearing, spread over several months, a circuit judge gave a very short judgment about how a child had acquired some serious injuries. In plain and simple terms, the decision was that it was the father who had done it and the mother had not been involved. Not only was the decision clear, it was obviously very important indeed.
The local authority prepared a care plan for the two children of the family. They were both to stay for the time being with their mother's parents. There would be a final hearing in February to decide what the best long term arrangement would be. Less than a week before the hearing, however, the judge issued what was described as a perfected judgment - I suspect that some of the participants might have had a rather different term for it though.
In what the Court of Appeal described as a bombshell, the judge changed her mind about the facts of the case. She now decided, on reflection, that it was not possible to say from the evidence which she had heard, just how the child had been injured. So there was no longer a finding that the father had been responsible at all. Even the lawyers were thrown by this, to the extent that although they could see that something was seriously amiss, they struggled to find the right way of dealing with it. The appeal which was filed was effectively a request for further explanation of the change of mind from the judge. When the Court of Appeal got hold of it, though, they invited the mother's team to change it to an appeal on the basis that the judge, having given a judgment in December, was bound by it and couldn't at a later stage just change it completely.
The judgment goes in some length through the question of whether, in procedural terms, it was open to the judge to do that. It goes over the difference between a judge giving clarification of reasons for reaching a decision and actually changing the substance of it. The fact is, the Court of Appeal would rather a judge changed a wrong decision to a right decision than the whole thing come up for appeal. But there has to be finality at some point. Once the decision has been turned into an order of the court, it can't be revisited, it can only be appealed.
In fact, this case now, sadly, will go to further appeal by the look of it. The father will now seek to appeal the original findings of fact and will doubtless say that if even the trial judge didn't have confidence in her own decision, no other court could either. The effect of the decision, which in itself seems perfectly sensible, is that the judge now has to decide on the children's future care, based on a fact which she herself is no longer convinced of. A judge's lot, I'm sure, is never easy, and this judge's lot seems especially difficult now.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
L-B children
This case took a turn which must have come as a total shock to all the lawyers involved. It was a serious children case. On 15th December, following quite a long hearing, spread over several months, a circuit judge gave a very short judgment about how a child had acquired some serious injuries. In plain and simple terms, the decision was that it was the father who had done it and the mother had not been involved. Not only was the decision clear, it was obviously very important indeed.
The local authority prepared a care plan for the two children of the family. They were both to stay for the time being with their mother's parents. There would be a final hearing in February to decide what the best long term arrangement would be. Less than a week before the hearing, however, the judge issued what was described as a perfected judgment - I suspect that some of the participants might have had a rather different term for it though.
In what the Court of Appeal described as a bombshell, the judge changed her mind about the facts of the case. She now decided, on reflection, that it was not possible to say from the evidence which she had heard, just how the child had been injured. So there was no longer a finding that the father had been responsible at all. Even the lawyers were thrown by this, to the extent that although they could see that something was seriously amiss, they struggled to find the right way of dealing with it. The appeal which was filed was effectively a request for further explanation of the change of mind from the judge. When the Court of Appeal got hold of it, though, they invited the mother's team to change it to an appeal on the basis that the judge, having given a judgment in December, was bound by it and couldn't at a later stage just change it completely.
The judgment goes in some length through the question of whether, in procedural terms, it was open to the judge to do that. It goes over the difference between a judge giving clarification of reasons for reaching a decision and actually changing the substance of it. The fact is, the Court of Appeal would rather a judge changed a wrong decision to a right decision than the whole thing come up for appeal. But there has to be finality at some point. Once the decision has been turned into an order of the court, it can't be revisited, it can only be appealed.
In fact, this case now, sadly, will go to further appeal by the look of it. The father will now seek to appeal the original findings of fact and will doubtless say that if even the trial judge didn't have confidence in her own decision, no other court could either. The effect of the decision, which in itself seems perfectly sensible, is that the judge now has to decide on the children's future care, based on a fact which she herself is no longer convinced of. A judge's lot, I'm sure, is never easy, and this judge's lot seems especially difficult now.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Wednesday, 18 July 2012
What do the National Secular Society and the Christian Institute wholeheartedly agree on?
Poles apart, you'd say, wouldn't you? Well, they, together with noted campaigner, Peter Tatchell, want to see section 5 of the Public Order Act amended to remove the word 'insulting'. This has all suddenly gained added topicality with the recent John Terry prosecution. You can read the judgment here:
John Terry
Section 5 creates an offence of using threatening, abusive or insulting words or behaviour
likely to cause harassment, alarm or distress. With John Terry, he admitted calling Anton Ferdinand "f...ing black c..." or perhaps "f...ing k......d". I don't know that anyone could realistically say that this was anything other than insulting. As the District Judge pointed out, whether or not JT is a racist was irrelevant. True, he was charged with the racially aggravated form of the offence, but the offence can stand whether or not it takes a racially aggravated form.
The case fell because there was an element of doubt over JT's motive for using this sort of language, surprising as that may seem. That detail was important to JT, but would not be to the NSS or the CI. What they are concerned about is the use of the term 'insulting behaviour' to limit freedom of expression. I guess the question here is, should JT's use of bad language be the sort of thing the criminal law calls to account or not? The view being expressed by the footballing world seems to be that what goes on on the pitch should be left alone. To put it another way, should swearing constitute a crime?
There's more than one way to control unacceptable behaviour - a whole range of sanctions in fact. At the basic level, society disapproves of certain acts, like the exchange of language between Anton and John that fateful afternoon. One would hope that a child using that sort of language could expect a firm challenge from its parents or its school teacher. Continuous repetition of that challenge should cause an alteration to the behaviour. Well, that's the theory anyway.
Civil sanctions can be introduced, enabling an affected party to institute proceedings in the civil courts against the offender. An example is the law of libel. This exists to deter people from making defamatory and false statements against others. The criminal law simply doesn't intervene in this area and never has. No one suggests that it should. Spreading false and damaging stories about another person is a matter of legitimate private interest, but not public interest. Hence one can institute a private action in the civil courts for damages, as a deterrent to this sort of miscommunication, and for an injunction to prevent any repetition.
Of course it's not JT's language which bothers campaigning groups. It's the uneasy thought that plenty of people all too easily take offence at their campaigning. Apparently the mere expression of a contrary opinion is enough to cause distress, and distress by another person's speech can constitute an offence in the terms of the Act!
In fact, the campaigners have set up a separate website on the topic here:
Reform section 5
I particularly recommend a viewing of the victims page - some of them really do beggar belief.
The key statement of the right to free expression is set out in Redmond-Bate v. DPP. You can read it here:
Redmond-Bate
The central sentiment and statement of principle comes late in the judgment. It's one of the great legal expositions of human rights and how they should be honoured.
" Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy."
It's troubling to read that the UN of all bodies has in the past adopted an anti free speech policy, the defamation of religion resolution. Fortunately that has now been replaced but I begin to wonder whether the right to freedom of expression is too circumscribed. The truth is that when organisations as disparate as the NSS and the CI can agree that a law needs to be changed, it's hard to see how it can be anything other than objectionable. If it means that footballers see it as a green light to deploy nothing but expletives on the pitch, that seems to me to be a price worth paying. After all, we could still show them a red card as an alternative.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
John Terry
Section 5 creates an offence of using threatening, abusive or insulting words or behaviour
likely to cause harassment, alarm or distress. With John Terry, he admitted calling Anton Ferdinand "f...ing black c..." or perhaps "f...ing k......d". I don't know that anyone could realistically say that this was anything other than insulting. As the District Judge pointed out, whether or not JT is a racist was irrelevant. True, he was charged with the racially aggravated form of the offence, but the offence can stand whether or not it takes a racially aggravated form.
The case fell because there was an element of doubt over JT's motive for using this sort of language, surprising as that may seem. That detail was important to JT, but would not be to the NSS or the CI. What they are concerned about is the use of the term 'insulting behaviour' to limit freedom of expression. I guess the question here is, should JT's use of bad language be the sort of thing the criminal law calls to account or not? The view being expressed by the footballing world seems to be that what goes on on the pitch should be left alone. To put it another way, should swearing constitute a crime?
There's more than one way to control unacceptable behaviour - a whole range of sanctions in fact. At the basic level, society disapproves of certain acts, like the exchange of language between Anton and John that fateful afternoon. One would hope that a child using that sort of language could expect a firm challenge from its parents or its school teacher. Continuous repetition of that challenge should cause an alteration to the behaviour. Well, that's the theory anyway.
Civil sanctions can be introduced, enabling an affected party to institute proceedings in the civil courts against the offender. An example is the law of libel. This exists to deter people from making defamatory and false statements against others. The criminal law simply doesn't intervene in this area and never has. No one suggests that it should. Spreading false and damaging stories about another person is a matter of legitimate private interest, but not public interest. Hence one can institute a private action in the civil courts for damages, as a deterrent to this sort of miscommunication, and for an injunction to prevent any repetition.
Of course it's not JT's language which bothers campaigning groups. It's the uneasy thought that plenty of people all too easily take offence at their campaigning. Apparently the mere expression of a contrary opinion is enough to cause distress, and distress by another person's speech can constitute an offence in the terms of the Act!
In fact, the campaigners have set up a separate website on the topic here:
Reform section 5
I particularly recommend a viewing of the victims page - some of them really do beggar belief.
The key statement of the right to free expression is set out in Redmond-Bate v. DPP. You can read it here:
Redmond-Bate
The central sentiment and statement of principle comes late in the judgment. It's one of the great legal expositions of human rights and how they should be honoured.
" Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy."
It's troubling to read that the UN of all bodies has in the past adopted an anti free speech policy, the defamation of religion resolution. Fortunately that has now been replaced but I begin to wonder whether the right to freedom of expression is too circumscribed. The truth is that when organisations as disparate as the NSS and the CI can agree that a law needs to be changed, it's hard to see how it can be anything other than objectionable. If it means that footballers see it as a green light to deploy nothing but expletives on the pitch, that seems to me to be a price worth paying. After all, we could still show them a red card as an alternative.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
Friday, 13 July 2012
Vicky Haigh - an update
Just to update my earlier post about the Mail article on Vicky Haigh, it seems that my surmise was correct - new life in an earlier and dormant case came about because of a partially successful appeal by Ms. Haigh against sentence.
No judgment has been made public but this report appeared in the Worksop Guardian.
Vicky Haigh Appeal
So there was some reduction in the sentence but it what remained was very substantial. I'm not going to pontificate as to the wrongs and rights of this - I wasn't at the hearing so I just don't know. I'm starting to think that the only proper place to criticise a judge's decision is in the Notice and Grounds of Appeal. Commentators should perhaps limit themselves to calling for law reform or supporting further appeals, if warranted. Attacking a judge's decision in a specific case outside the court's procedures is fraught with danger and it's all too easy to become hostage to the partial truths and partisanship of those close to one party or the other.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
No judgment has been made public but this report appeared in the Worksop Guardian.
Vicky Haigh Appeal
So there was some reduction in the sentence but it what remained was very substantial. I'm not going to pontificate as to the wrongs and rights of this - I wasn't at the hearing so I just don't know. I'm starting to think that the only proper place to criticise a judge's decision is in the Notice and Grounds of Appeal. Commentators should perhaps limit themselves to calling for law reform or supporting further appeals, if warranted. Attacking a judge's decision in a specific case outside the court's procedures is fraught with danger and it's all too easy to become hostage to the partial truths and partisanship of those close to one party or the other.
Blog Disclaimer: Nothing in www.austinkempfamilylaw.blogspot.com blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should instruct a solicitor. Any links to other blogs or web sites are provided for convenience only and Austin Kemp Solicitors cannot accept any responsibility for the contents of such linked blogs/sites.
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