The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Should a jury know what “balance of probabilities” means?

Robertson v HMA was a criminal appeal in April following a conviction of having a knife in a public place without reasonable excuse or lawful authority which centred on the direction of juries.

I think this case is a fantastic example of just saying too much to the police:

[3] The appellant was detained by the police officers in a car park in Musselburgh at the rear of the premises of a veterinary surgeon. At that time the appellant was standing in the car park smoking a cigarette. He had a carrier bag in which there was a golf club.

[4] When the police officers asked the appellant to empty his pockets, he produced from the inside pocket of his jacket a double-edged serrated knife.

[5] The appellant told the officers that he had borrowed the knife from his mother when he had moved house some weeks before, and was now on his way to her house to return it. After leaving his home he had interrupted his journey for some golf practice. He had his dog with him. Then he had gone to the vet for advice about his dog. He had tethered the dog outside. When he came back from the bet, the dog had gone.

The section involved (section 49 Criminal Law (Consolidation) (Scotland) Act 1995) says:

(4) It shall be a defence for a person charged with an offence under subsection (1) above to show that the person had a reasonable excuse or lawful authority for having the article with him in the public place.

and the standard of proof for showing that is the balance of probabilities. Some fantastically colourful reasonable excuses have been tried in Scottish courts since this defence was created.

My feeling on this one is that had he stopped after “on his way to her house to return it” that would be a perfectly reasonable excuse for carrying a knife. Going on to say he stopped to play golf and go to the vet (and why didn’t he take the dog into the vet?) starts to stretch credulity. Given the sketchy story I suspect the jury might well have got it right.

The main legal point is that Agar v HMA (2000) is very, very strong HCJ authority that “the balance of probabilities” is a phrase containing “plain English words” which juries don’t need special direction to understand. In the face of that there’s not much room for debate as a ground of appeal and that’s what happens to this case.

I don’t think it’s as straight forward as that, though, and I think lay people might well appreciate a quick “more likely than not” nod to help them there. Balance of probabilities is a very familar legal term for lawyers but it is a term of art and, to add to the confusion, is used differently in other fields. For one, in genetics it involves combining mathematical probabilties to come up with a numerical probability.


Silk returns

I have been rightly guilted out of my quiet period by a reminder of the wider law blogging community from Law Actually for which I can only apologise and blame the Diploma. I’ve been letting this blog wither a little (even letting the domain lapse as I have finished the formal student part of my legal career and would now like the start the career part – if anyone has a spare traineeship lying around they only have to ask).

And now for some top quality British legal drama.

There’s something about Maxime Peake’s portrayal of women that kind of worries me sometimes. I remember storing up and watching all of the second series of Criminal Justice in a 5 hour marathon session and ended up desperately needing to hug someone by the end of it. I’ve found Silk much more watchable as Martha is a much stronger character, but it still had definite moments of kicking her while she was down.

The second season has just aired on BBC and it looks promising. It involves Martha in her first days as a QC – which sadly seems not to have been an entirely good thing for her, a majorly evil baddie and a clear recurring plot through the rest of the series. I’m looking forward to seeing more. The pupils are gone this season with Natalie Dormer, who played Niamh, turning up as a queen in Game of Thrones.

There was a point where the judge is called His Honour, though, which I don’t think is right.

H/T: iPlayer


Support BAILII

If you’re a law student, lawyer or someone not in those groups who has read a case in the past 10 years, BAILII (British and Irish Legal Information Institute) needs no introduction. If you’re not though, BAILII is the charity law students, practitioners and lots of the general public rely on just about every day for easy online access to court decisions and non Scottish statutes (boo). I realised how much I relied on it today when I was filling in the user survey for them (BAILII needs to seek out sponsors to function but doesn’t record details of its users without consent) and had to answer this question:

The important thing to remember is that BAILII, just like Wikipedia, is a charity and relies on donations to continue to provide its crucial service. It’s certainly the most useful thing I can think of that’s been done to promote open access to court decisions, including recent ones, and well worth a donation.

Tesco price checking

It’s hard to overstate how important good information is in business and this applies equally to why Masters of the Universe are tempted to go in for insider trading as it does why we have Go Compare adverts.

This is not here for its musical chops

The competition for supermarkets in Britain is pretty limited and customers have a particular disadvantage here.

The only solution to this is to sit down and try to address the information disadvantage. There’s various ways of doing this and one way is to do primary research. Unfortunately, canvassing all products in all supermarkets in a reasonable amount of time is a massive task and, being give-up-your-day-job labour intensive, it won’t save you much money. It has only just become practical to do it this way because the internet, of course, has made it practical to crowdsource supermarket comparison shopping. Suddenly everyone can share small samples of prices that they found while going about their lives and combine them together into a database.

Supermarkets, as rational actors, do not like this. So much so that they have taken some big steps to stomping it out. People writing in notepads or taking pictures of shelves have been asked to leave stores because it’s against the law.

The Guardian comments come to our aid here:

Just for the avoidance of doubt, in legal terms this is what is technically known as ABSOLUTE BALLS.

The interesting thing is the Tesco staff quoted in the article’s approach to this. They explicitly say that you are allowed to track the prices of things you buy but not things still in the store. This is naturally a fantastic option for Tesco.

H/T: The Guardian


Soulver T&Cs

I am a big fan of a program called Soulver for Mac (I’ve never used it but Lifehacker says that OpalCalc is a good copy for Windows).

Soulver is basically a notepad application that lets you write out what calculations you’re doing and then does the computation next to it. I like it because my fundamental failing in maths is keeping track of what I’ve done, what I’m doing now and where I go from there. Soulver lets you type out a document, with variables and dependent answers if you want, that neatly sets out your working. It means that you don’t feed numbers into a calculator and, on going back, wonder “where did that 50p come from?”. It’s also great used as a more regular text editor to take notes where numbers are involved.

Calculating a company's dividend, line by line

For example, the above is a question I worked out in a tax tutorial (by the way, if you rely on my figures here to calculate the dividend in your own company you’re literally crazy). I typed out the numbers again but I could also have dragged and dropped from the right hand side into the text window on the left. That has the advantage of putting in pointers which can change as the calculations they rely on change, just like a spreadsheet formula.

Soulver costs $24.95 (about £15) and, as standard for a piece of software in this is price range, tries to back away from as much liability as possible. I think this is only sensible — I found Soulver as a Mac Switcher through a recommendation from David Sparks (MacSparky), a California trial attorney who, as far as I understand, uses it at work. The Terms of Use put a $2 limit on total company liability.

Two provisions from the Terms of Use say:

The developer makes no claims for Soulver’s accuracy, reliability or correctness. You should always check the accuracy of the results, and not rely on them being correct.

Soulver should not be used in cases where errors or inaccuracies in a result would lead to death, personal injury, financial and economic losses, losses, damage to property, or any other form of damage.

I suspect that whoever wrote that had the Mars Climate Orbiter in mind when doing so. The MCO crashed because of a communication error between multiple teams — one team did their work in metric units, another team used imperial ones. The resulting disparity meant that the spacecraft crashed. Similarly, my own example of using Soulver to calculate company tax creates opportunities for some crazy liabilities. Soulver’s killer feature here, every calculation is neatly written down and stored line by line, means that there is a paper trial built up for exactly where the error happened; that’s not the same as blaming Casio when your tax return gets audited.

I think this makes a dramatic contrast to the “use at your own risk” EULA found by Michael @ Law Actually.


On catgate and outrageousness

The Guardian is making very ominous sounds about Ken Clarke’s future career in the wake of “catgate” which, if true, is possibly the saddest political coup in history.

I suspect most people have heard about Catgate by now — one of Theresa May’s researchers has found a immigration case in which a cat was mentioned and has either cynically misrepresented it or catastrophically misunderstood it to the extent it was headlined in a Party conference speech as an outrageous “yuman rites” story.

Ken Clarke, echoing many of us in all walks of life who are a bit sick of our area of expertise being done very badly in public, pulled a face when May said that the central legal issue in the case was immigrants having a cat. That sounds like a ridiculous reason to let someone stay in Britain, right?

Spoiler: it totally is.


The notable thing about outrageous stories is that they’re unexpected — that makes it stand out. You see it regularly in health reporting to the extent that if a new study reveals unexpected results it’s probably wrong. There’s a lot science doesn’t know yet but it wasn’t born yesterday either.

Your gut has a reasonable sense of how the world should (and nearly always does) work. If you see a car rolling uphill that stands out as not expected. This is why gravity hills are interesting:

If you gut says “that doesn’t sound right” it’s worth checking if it is. That’s what Ken Clarke did with Catgate, and it so happens that he was perfectly right. It turned out that the cat was mentioned in passing by a witness as an example of how he had cemented a family relationship with other humans.

Unexpected anecdotes are also an extremely poor way to make policy. We should not abolish the Human Rights Act because an aide at the Home Office found a story about a cat.

Frankly, it’s outrageous to think otherwise.


Kindle update

I have waxed lyrical about my love for the Amazon Kindle before so I’m naturally interested in Amazon’s revamp.

Regular readers will remember that my only complaints about the Kindle were its annotation features (particularly export) and the keyboard. Therefore, I’m quite happy to see what they’ve done now:

Kindle Touch

Kindle Touch

  • faster hardware
  • slightly smaller
  • lower price
  • eInk display
  • touch screen
  • that awful keyboard is gone

I’m focusing on the eInk device still because I think it suits my purposes better. I just want to read a large number of documents on the bus without having to kill someone’s printer.

The Kindle Touch is not available in the UK yet but it’s surely a matter of time. I think the new touch screen should make the annotation feature more friendly than it used to be. The iPad’s great advantage for marking up documents is that you can swipe your finger across the text you want to highlight. This is a bit of a half way solution as it’s still necessary to get your highlights off the Kindle unless you want to type it out manually and I haven’t heard anything about that. I’m not sure that I’ll ever justify an upgrade to a touch screen device just for easier highlighting.

I also think I’d some how miss having a button to press to change pages when reading. I’m not convinced about swiping between pages.

Kindle Fire

Kindle Touch
The Kindle Fire seems like an interesting device but it’s very different from the Kindle Touch. It’s an Android based device with an LCD touch display. I suspect it’s going to be fantastic for media use. It’s fundamentally a Kindle with a colour screen but I don’t think it’ll be as good at living in your bag overnight. The Kindle Fire will need charged much more often than an eInk Kindle.

However, if you need more power and any sort of colour graphics in your Kindle this is the only option.


Kindle Touch

My recommendation though, based on what I know of the Kindle 3 and what I don’t like about it, is the Kindle. It’s essentially a slightly smaller, faster, cheaper Wifi Kindle 3 without the rubbish keyboard (it has a probably much, much worse virtual keyboard instead).

The new low end model, the Kindle, is now keyboard-less and operated by a small 5-way control and 4 buttons (I assume Home, Menu, Back, and Text) with a virtual keyboard available. is selling it for £89 and that’s a tempting price. The photocopy metric on that is “only” 1780 pages. I think that’s the the one to go for if you’re buying a new Kindle today.


Campaign for Real Ale to not support lager?

In a remarkable sign of how big it now is the Campaign for Real Ale (CAMRA), a group intended to support the once endangered breed of cask ales in Britain, is being pressured to support other kinds of beer. There was a Camden based brewer on Channel 4 news tonight rhetorically asking why they don’t support all brewers of all kinds of beer, in fact, he asks, “why not lager?” (Cynically, I suspect he doesn’t really want CAMRA to support all brewers, because CAMRA approval would then be worth less, but he does want them to support his beer in particular).

It seems reasonable that CAMRA, given its name, shouldn’t have to plug someone’s drink if it’s not ale — you might as well expect them to endorse your brand of orange juice — but they should be proud to see how significant they have become for a group based on reviving a dying type of old-man beer.

I suspect it’s time for a Campaign for Microbreweries to take up the role that the Camden brewer clearly expects CAMRA to perform but there’s a definite irony in expecting CAMRA to change what it does based on what is now fashionable in the British beer scene. This is a group of people trying to sell ale to a nation of lager drinkers, after all.


We don’t own the footprints

“The great irony is we don’t own the surface of the moon, so in a sense we don’t own the footprints” left by Apollo astronauts

In developments rather outside of my jurisdiction, NASA is seeking consensus with private space exploration companies (this alone proves we are in the future) over guidelines to preserve the historical artefacts they put on the moon during the previous century.

Google’s Lunar X prize includes a $20m award for landing a robot that can move 500 metres and send back images from the moon but with a $4m bonus “heritage prize” for landing near one of the Apollo missions. This means that about a dozen teams are actively aiming rockets at some of the most significant, and most fragile, relics of human progress ever.

Interestingly the law here comes from the Outer Space Treaty 1967, which is one of these UN treaties which you notice in footnotes when you’re a student and think is just a cool bit of Cold War trivia. The treaty means means that, because the surface of the moon has no owner, there is no authority which can tell private bodies to leave Apollo 11 alone.

Science mentions the experience of anthropologist Beth O’Leary who approached the US National Park Service trying sort out preservation guidelines and was told that the agency “did not have the jurisdiction to work on such guidelines.”. She provided the quote at the top in 2000. I suspect the change of heart must have something to do with Google putting up the ton of money.

There is likely to be a great deal of money in actual lunar artifacts — I hesitate to imagine how much someone would pay for the Apollo 11 lander module — but they remain extremely important relics for our species.

In the 20 July guidelines, NASA proposes that the Apollo 11 and 17 sites remain off-limits, with ground-travel buffers of 75 meters and 225 meters from each respective lunar lander. Furthermore, NASA simulations and footage from previous lunar missions led Kelso to conclude that 2-kilometer-radius no- fly zones over each site would prevent rocket exhaust from contaminating artifacts. NASA, however, would condone limited activities among the artifacts of other sites, according to the document.

H/T: Science, 2 September 2011, 1207-8


Juries are crazy, sometimes

In the shadow of the Neil Lennon look-we-have-a-video-it-happened-on-TV Not Proven verdict Scott Greenfield writes about a law review article across the pond about how the exclusionary rule — one of the central procedural concepts in all litigation that’s ever heard of England articulating the principle that, for various reasons, some evidence is simply too unfair to be shown to a jury — is back firing on criminal defendants.

Greenfield’s primary criticism of the article is fundamentally that it’s a case of throwing the baby out with the bath water and I find him as persuasive as ever on this. The problem is jurors’ imaginations running amok rather than the ability to exclude, for example, torture confessions.

The problem is sort of a reverse CSI-effect where instead of juries assuming that, if the accused actually did it, there would be DNA and fingerprints; they assume that the accused did do it and there’s something horribly incriminating that their sleazy defence lawyer got buried. The jury then takes it on themselves to imagine what that non-existent evidence is and convicts accordingly. I don’t know how common this is and the rules on jury interviews in the UK makes it tricky to find out but it’s potentially a very serious problem, not least for what it does to the presumption of innocence.

I imagine this comes straight from police dramas where the sleazy defence lawyer is always getting stuff buried. It’s looking increasingly like your odds of conviction in solemn trials depends more than it should on if your jury prefers CSI to Law and Order.

The lesson seems to be that juries sometimes do unpredictable things, whether that’s returning unexpected verdicts, assuming evidence is normally definitive or that it even exists in the first place. We still have to be careful about constitutional safeguards, especially in jurisdictions where the constitution is as flexible as ours.

H/T: Simple Justice