The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Month: December, 2010

Sounds exhausting

A scrupulous writer in every sentence that he writes, will ask himself at least four questions thus: What am I trying to say? What words will express it? What image or idiom will make it clearer? Is this image fresh enough to have an effect? And he will probably ask himself two more: Could I put it more shortly? Have I said anything that is avoidably ugly

– George Orwell, Politics and the English Language

That sounds difficult, are there any shortcuts?

But you are not obliged to go to all this trouble. You can shirk it by simply throwing your mind open and letting the ready made phrases come crowding in. They will construct your sentences for you — even think your thoughts for you, to a certain extent — and at need they will perform the important service of partially concealing your meaning even from yourself.

Ah, that’s not good.

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Reblog: Some (Non-Mainstream) Thoughts on the Crib Recall (via FreeRangeKids)

I strongly disagree with the idea of legislating to assuage guilt. One example that particularly got me was a ban against cords on blinds (they now have to be break away models). This was due to some highly effective lobbying by the parents of a baby who had died by being strangled by a blind cord in a freak accident.

Fundamentally, if you can call it a freak accident legislation is not necessary to deal with it.

Free Range Kids has posted about the ban on drop-side cribs. Firstly it’s a ridiculous ban, you can’t sell, re-sell or manufacture a drop sided crib in the USA. Secondly it’s because 32 children have died in the past nine years. Each one is a major tragedy for the family involved but lying in bed remains one of the safest things a human being can do.

Some (Non-Mainstream) Thoughts on the Crib Recall Hi Readers — I'm going to be blunt: The ban on the sale, resale and manufacture of all drop-side cribs does not make sense. Here's why: Over the past nine years, 32 children have died in these cribs. That is tragic. My heart sinks thinking about it.  But — and yes, there IS a but, and this "but" does not make me a heartless bean counter, or a crazed Free-Ranger who laughs in the face of danger (I am, at base, a nervous mom) — we are talking ab … Read More

via FreeRangeKids

Too discriminatory to stop

How do we know self-regulation of the media is an ineffectual farce?

This guy

The Palestinians are the pikeys of the Middle East. If they must have a homeland, give them part of Saudi Arabia, because the Egyptians, the Syrians, the Jordanians and the Lebanese don’t want them either”.… “No more hand-wringing. It’s time for neck-wringing”.

There is a lot of debate about if Richard Littlejohn is a

  1. professional troll,
  2. horrible bigot,
  3. free speech campaigner,
  4. genuinely unaware of what he’s saying.

I propose another option. Richard Littlejohn is trying to destroy the Press Complaints Commission (PCC) from the inside.

When I went to Sunday school, a million years ago, we were taught to love our neighbour.

I don’t recall ever being told that we should take an ‘eye for an eye’ literally. Or that the punishment for homosexuality was death.

Aged six, we didn’t even know what homosexuality was, even though we’d been warned to steer clear of that chap who was always hanging round the swimming pool.

A little while ago (the guy is prolific) he managed to imply that homosexuals abuse children. As a result quite a few people complained to the PCC. The PCC did not claim that what he said didn’t discriminate against homosexuals but that it merely discriminated against all homosexuals and that’s apparently ok.

The complainants were concerned that the article implied that homosexual individuals were paedophiles.

The Commission acknowledged the complainants’ concerns that the columnist had equated homosexuality with paedophilia. However, while the terms of Clause 12 (Discrimination) prevent newspapers from making prejudicial or pejorative reference to an individual’s sexual orientation, it does not cover generalised remarks about groups or categories of people. Given that the complainants were concerned that the article discriminated against homosexual individuals in general, the Commission could not establish a breach of Clause 12 (Discrimination) of the Editors’ Code of Practice on these grounds.

Basically, it’s starting to look like no matter what Littlejohn writes the PCC won’t do anything. Staggeringly Richard Littlejohn is showing us that something is rotten in the state of Denmark.

Why do we need the PCC again?

H/T: Tabloid Watch
Enemies of Reason

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This is what your licence fee pays for

It almost sounds like a Chris Morris bit- “But you were wheeling towards the police in a menacing fashion….?

I think I have a reasonable amount of chutzpah and brass neck but even I have never quite worked out how to justify dragging cerebral palsy sufferers from their wheelchairs.

I especially never quite worked out how to blame the cerebral palsy sufferer for it. But that is obviously why I don’t work for the BBC.

Seriously, you’ve likely never had a better reason to write to OfCom and the PCC than this sound investment of licence fee money:

Opinions vary widely, even on YouTube which is remarkably good at not having crazy racist comments this time, about whether this is ridiculous or not. I’m firmly in the this is ridiculous camp. Look at it, it just is.

This is 20 year old Jody “Revolutionary” McIntyre being interviewed by Ben Brown of the BBC. They show him being taken from his wheelchair by a decent sized (I’d feel pretty special with that level of attention) group of riot police and made to lie on the ground. It’s not immediately clear why they’re doing that — was he running about or something?

He is, jaw droppingly, accused of “rolling towards the police in his wheelchair” and, apparently, this being the reason that he was yanked out of the dangerous vehicle. Please God make that not be true.

It’s clearly nonsense because the guy can’t move his own wheelchair — he’s got cerebral palsy. He can’t make it roll towards anything. He’s then asked if he was throwing any bricks towards the police, which was awesome to hear from a serious journalist questioning someone with a serious disability. Does the BBC have a disability awareness policy? What happened to it?

I’m impressed that the guy never said “wait, what?” when these questions were asked and having, to reiterate that there was a bad thing that was done to him by the authorities. That is not how it usually works. When’s the last time any person complaining about mistreatment was expected to defend comments on their blog? The blog’s irrelevant; riot police don’t pull you from wheelchairs because of your blog.

A lot, an awful lot, is made of him “being a revolutionary” which was the weirdest thing of all. I really don’t think he’s a terrorist BBC, but thanks for being vigilant.

There is a perhaps unkind stereotype of police officers picking on vulnerable people because genuinely scary people are genuinely scary and it’s much safer and easier to pick on the elderly, disabled, young, foreign or some other group. I doubt it’s true on the whole (you get bad eggs sometimes) but, pro tip, this does not help shift the stereotype one bit. There were people setting fire to cars and “poking” the Duchess of Cornwall with a stick and what looks like half a dozen riot police lying a disabled 20 year old down on the pavement for “rolling towards them in his wheelchair”.

Nice try lads. Now how about catching some real criminals?

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Shoplifting contractors

Shoplifting is a big problem for shops and no one can really agree on the proper way to deal with it. There is a policy in some stores in the US of contractual private sector bag and receipt searches. This is pretty controversial but the idea is that the 4th amendment only restricts governmental searches and if you do it nicely enough you can get everyone to show that they’re paying for everything they’re taking out of the store and nothing gets stolen. I think it puts a weird burden on your customers to provide evidence that they aren’t robbing you. That seems like a business strategy that Alan Sugar shouts at you for on the Apprentice.

Self help

As a matter of theory there is a difficulty in that shoplifting is a crime and therefore it’s not something that you sue over. Many people who have asked the police for help have likely heard the words “it’s a civil matter”, and well, conversely crimes are a police matter.

Complicating this is the lack of eagerness in the police to deal with what is, fundamentally, not that a big deal in the grand scheme of things. Prosecuting shoplifting is not exactly chasing international criminals and it’s natural that officers, particularly the talented and ambitious ones, will want to deal with “proper” criminals. Another problem is the issue of being able to get their stuff back from the police quickly so that they can then re-sell it — for example, perishable food is often stolen.

To get around this some companies have adopted a self help measure by employing private “security firms” to “levy” “fines” to people they “catch” “shoplifting”. I’ve been liberal with the quotes in that last sentence because this is a hugely informal arrangement working on suspicion rather than proof. It seems that they have employed the Child Catcher (one in four cases involve teenagers, mostly under 17) to leap out whenever the gates beep and demand money. It seems incredibly lucrative work.

Are they right?

Probably the poster case for the issue with these searches is Kim Molloy. Molloy is hardly a classic stereotypical shoplifter in that she is a police chief inspector. I can tell you that she, in “an act of forgetfulness rather than dishonesty”, accidentally took a pot of foundation worth £12.72 from a branch of Tesco Express. I am able to say that because that is what the judge said when she was cleared in a criminal trial. The security firm wanted £137.50 from her.

The Guardian does some good coverage of the statistics involved with this practice:

  • In 67% of 300 cases analysed, the goods were worth less than £20, and
  • in 79% of cases they were recovered in store for resale – but
  • the average demand was £147.69 including the costs of “dealing with the incident” as well as the goods stolen.

I’ve already discussed this practice in relation to file-sharing claims and these claims are pretty similar in many ways. These offers are great and even standard opening procedure if you are a hard bitten practising lawyer who can look at threatening claims and not blink. If you are absolutely anyone else they are suitably terrifying. Remember, we are dealing with a situation where there is an average demand about 10x the usual actual loss (and the actual loss is recovered immediately in most cases). That means the main winner looks to be the company that hassles people outside the shop — those “dealing with the incident” fees add up quickly.

Does that sound familiar?

H/T: The Guardian

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Brr…

Any non-Scottish readers will not understand just how bad the weather has been up here but here is a handy visual aid:

Scotland from space

That used to be Scotland

The snow has, thankfully, recently stopped killing Scotland’s transport network. This is good. It was previously extremely difficult: there was a monumental amount of snow lying on the roads. I have been stuck in the delays and I have caught myself shouting at the TV when the (now ex-) transport minister comes on TV.

Thankfully the temperature has now snuck over freezing and that is to be praised. What we need now is no more snow and an Indian summer. I don’t care if it’s December.

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A bad day for ACS:Law (Update)

My days and nights have recently been taken up by trying to teach myself how to argue employment tribunals. My advice on that matter is to disregard anything you were told in legal process — from this end tribunals don’t look any simpler and less formal than courts. They’re still really, really hard. My biggest worry when I’m preparing for hearings is that I’m going to be so terribly bad that the client gets let down.

However it is reassuring to see that, no matter how poor my performance at tribunals is, someone else has done a scary job of missing several open goals at once.

Default judgements

I’m not going to be teaching many people who read this something new by saying that a default judgement is where the other side simply doesn’t respond. It’s just the claimant and the judge having a chat. This is why I don’t like secret trials for terrorism offences where the accused doesn’t get to defend themselves. The purpose of the defence is to make it hard for the prosecution because we know it’s easy to win if no one else is there. I consider it too easy to win a criminal trial if there is no defence, it will endanger the innocent and therefore we simply shouldn’t do it. I’m more pragmatic about default judgements in civil trials basically because no one goes to jail and you can, technically, take part if you want to.

ACS:Law

Yup, it’s these folks again.

ACS:Law has been widely criticised for just sending threatening letters to people and taking the easy ones where the people just reply by return with a cheque. They always said that they would be happy to go to court over what they allege but they never actually did. This has now changed.

ACS:Law, acting on behalf of Media C.A.T, sought default judgements against 8 people who had failed to defend the claim. This is the nearest that litigation gets to shooting fish in barrels.

So, 8 for 8?

Eh, no. Anything but. The judge really made the claimant work for their judgement and pointed out several pretty fatal flaws (the claimant wasn’t actually the copyright owner, they wanted a novel interpretation of the statute that isn’t supported by authority, a number of civil procedure rules not complied with etc etc).

Particularly notable is this point of statutory interpretation: the court did not accept that Parliament meant to make people liable for unauthorised use of their WiFI under the 1988 act. The language is “authorises another to do” rather than “doesn’t do everything they can to stop it”. This is a first instance case but for what it’s worth unencrypted WiFi, as I think we pretty much all thought, doesn’t seem like a legal liability… yet.

All in all the wonderful news is, as long as the judiciary are vigilant, it appears to remain difficult to be lumped with a copyright infringement judgement on the basis of file-sharing allegations. Long may that continue.

H/T: Torrent Freak

Edit: The whole judgement is available on Bailii here.

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Dear Mr Diplomat

Sally said that you called me fat

You may have heard that Wikileaks published some (secret) diplomatic cables recently and apparently this is the biggest thing to ever happen. It might just be my youth talking but to me it looks a lot like when the two popular girls in school have a fall out and one girl tells the class all the mean things that the other person has been saying and the first girl hits back by saying that the other girl’s a slut. I’m not even going to bother talking about if we should kill Julian Assange or if Wikileaks is doing Al Qaeda’s work. All I’m going to say about that is I like my privacy as much as anyone but if you think people should be assassinated for revealing your interoffice mail you think far too much of yourself.

I’m saying it looks really stupid from where I’m sitting. This is really not a big deal in grown up terms. Slap some sense into your stupid diplomats (eg. the ones examining Canadian TV for anti-American propaganda) about the sort of thing you should put in memos and get on with your lives. Don’t you know there’s a war on? Soldiers are risking their lives while our diplomats run about complaining about their privacy and getting websites shut down. Frankly, get some perspective here.

Tips for the future

I’m going to reveal some super secret advice here. I’m not a lawyer, and I may not ever be a lawyer but I like to think I have a reasonable head on my shoulders and I’m repeating a statement I’ve heard from practicing lawyers, my mum (if you can’t say anything nice…), friends, civil society and various other human beings quite often.

Don’t write anything down that you would not be comfortable having read out in public

That’s it. It’s so obvious and simple. We should have learned this in primary school — if you write a note about someone it’s not inconceivable that they might, somehow, eventually get to see the note. The sensible thing, if you are (for example) employed by your country to represent and defend your national interests overseas, is to not write down every little remark that comes into your head. Mr Diplomat, how exactly is reporting that Kim Jon Il is a “flabby old chap” supposed to help you do your job?

I don’t ask a lot of my diplomatic staff — you can eat and drink heavily at public expense, abuse diplomatic immunity and do just enough work to get your pension if you really want to. I really only draw the line at repeating insults aimed at the leader of an aggressive nuclear power in official communiqués simply because you don’t think anyone else will read it.

Get over yourselves; you’re only diplomats. Don’t you have a job to do?

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The truth about “treason”

Re: Wikileaks- In a free society, we are supposed to know the truth. In a society where truth becomes treason, we are in big trouble.

It is that simple.

Book review: Typography for Lawyers – Matthew Butterick

What is the ugly truth about why typography is so important for lawyers? :

I believe that most readers are looking for reasons to stop reading… [o]nce the reader’s attention expires, you have no chance to persuade

– Matthew Butterick, Typography for Lawyers: Essential Tools for Polished and Persuasive Documents, Jones McClure Publishing

I was very kindly sent a review copy of the new legal typography book this week and I’ve really been enjoying it. I’ve written about the website which spawned this book before because it gives a useful introduction to the principles of typography, how it relates to legal writing and why it matters at all (hint – it’s important to make your writing inviting and easily readable because of that quote at the top). The book continues that mission with examples, tips and rules written by a professional typographer turned professional lawyer. Just about every section comes with point by point instructions for implementing it in Word 2003; Word 2007 and 2010; WordPerfect and Pages — a broad range of the most common word processors that you might reasonably expect someone to use. Even then, the advice is universal and you don’t even need those programs to benefit from it. Inside the front cover is a useful list of special characters along with a list of 28 key rules for quick reference. It is a very useful working handbook which is worth keeping close to your desk.

There’s always a worry in my mind that when a popular website publishes a book based on the website they will just stick two covers around what the original website said and not a word more. That’s not the case here and the author has unquestionably given value for money with his new book. There’s a lot of extra material written just for the book and it also avoids some of the limitations of a website format. There’s an inherent catch 22 in presenting typography tips on a website as, for example it’s hard to demonstrate the benefits of high-resolution print-optimised fonts on a website — after all, on page 82 you find out that a monitor has less than 3% of the resolution that a laser printer does. In a book you can immediately point out the little details (and make no mistake – each individual element is a fine detail) that are brushed out to make it easier for screen display. Suddenly “this font is better than this font” discussions make much more sense. The issues of subtlety and fine detail come up a lot – you are encouraged to adjust the size of text by 144ths of an inch at a time to see what works best. The changes are subtle, you can instantly see they’re right after you’ve done it and the worst thing is that you would never even know to do to it without being told first (use invisible “optional hyphens” to tell the computer the best place to split words between lines?). This book tells you how.

The best advice Butterick gives about typography is that it is not an exercise in artistic skill or taste but intent. The purpose of someone studying typography for legal writing is not to turn their case or essay into solid gold by changing the font but to polish it to more clearly show the merits. Studies testing marking styles show that an essay written in bad handwriting will score less than the same essay copied out in good handwriting. People like things to look good and people like things that look good. This is particularly true when people are dealing with piles of broadly similar documents. A judge or marker or supervisor or any professional reader probably does not want to read your document all that much but they have to because it’s their job. The best thing you can do for someone in that unenviable situation is to make it a) easy and b) pleasant for them. Content is king but the medium should not be forgotten.

Typography for Lawyers is on sale now for $25 which, thanks to our global village and affordable shipping, is just £16.07 in real money. Consider it recommended to anyone who writes about law because it’s a crucial element of the process explained very well.

But…

For the next edition it would be good to get some more international information. Your reader isn’t going to want to see different things from American ones so the advice travels well but the book is written from an American point of view – The Bluebook is referred to extensively along with The Chicago Manual of Style, the 7th Circuit’s style guide, the Californian Style Manual and others. In an ideal world I’d like to see about the Court of Session too.

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