The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Month: March, 2011

Running out of words

In the beginning there was the injunction but first, some patriotism.

The writ of the High Court is fairly powerful even in the place where we call them “interdicts” but it is an English court. However we also have the principle of there being some things you can’t say because a judge told you not to and because a lot of our news is effectively cross border anyway High Court injunctions do have an effect in Scotland. Your Glasgow office can’t really ignore your London head office very often.

Injunctions are not all bad and there are times that information is usefully concealed from public view (look at all the complaints about Wikileaks and apparently putting lives at risk), however they get a bad press because it doesn’t always work out like that. An injunction is good to have because other people can’t say what the bad thing is, so the privacy is preserved, but it lets people tap their nose and hint heavily that this injunction you got is because you’re up to no good, so you still suffer a loss of reputation because you spent time and money hiding something, even if we can’t say what that something is.

The loophole in an injunction is that you can paint around the edges of what the injunction covers to show that a person is a) deliberately hiding something and b) here is (roughly) what we can’t tell you.

So we got the super-injunction, which is where the fact of the injunction is also covered. These are controversial

The loophole in superinjunction seems to be taking advantage of Parliamentary privilege — you get an MP to raise the matter as Parliamentary business and the MP can’t be sued for breaking the court order and the matter is distinctly public record so you can report on it. This is fine as long as you have a friendly MP hanging around who knows about the superinjunction.

So, enter the hyper-injunction. This is a major step up again where a fact is prohibited from publication, the fact of the injunction is prohibited from publication and you, as an embargoed party, are prohibited from telling an MP about the injunction. An MP who doesn’t know can’t raise it as an issue.

There will be a work-around of some sort to this, I can’t think of one off hand but I’m only little, worked out in the future but it seems like an incredibly thorough way of blocking issues from public view.

H/T: CharonQC



Fighting the last big thing’s battle

I know that a lot of people are not as interested in computers and computer law as I am, however this following post does not require a lot of background knowledge and I’m happy to announce that the only background information you need is that Google was started in January 1996 and it is currently the Year of Our Lord 2011.

A common complaint of security commentators is that the authorities are “fighting the last battle”, reacting to threats which have already happened, and this is why you can’t wear shoes and underwear on planes anymore. If you think about it it’s quite hard to do it any other way but just because you had chickenpox last year doesn’t mean you need to spend hundreds of billions of dollars preparing for it this year.

David Cameron recently made a speech that complained that our repressive IP regime would have prevented Google from starting up in the UK. Which is fine because we do have slightly anachronistic rules about making not-for-distribution copies due to the bundle of exclusive rights — the long standing issue on format-shifting being the most publicised one, the difficulty about copying software into RAM so you can run it is probably another.

So far the main criticism of the speech I’ve read is that it’s interesting that a Prime Minister who wants to relax IP law to make it easier for Google has the spouse of Google EU’s Head of Communications on his staff but that appearance of impropriety is his business. My concern is that this is absolutely fighting not just the last battle but battles the UK lost over 15 years ago. We didn’t invent Google and it doesn’t matter how easy and nice we make our legal system for search engines now, Google has already been invented somewhere else. It’s not useful to talk about reforming the law to make it possible to start Google in the UK in 2011 because we need something different.

I was once discussing internet innovation over lunch with some friends and we were talking about “the next big thing” and one of us pointed out the financial benefit of inventing the next big thing and the conversation paused for a minute as we realised that there was a business case to giving this a bit of thought. We never came up with anything. It’s not easy to come up with something new and big and David Cameron has his work cut out for him if he’s going to legislatively pre-empt it.

IP law in Britain does need some changes, for starters I’d like to be able to convert music on CDs to mp3 without doing something wrong, but the way to go about it is not to work out what would let us create US tech companies from the mid-90s. That boat has sailed a while ago and we should be talking about what is coming in the future.

H/T: The Guardian


Adult or child

Criminal Law is a touchy area of law. It’s the part that makes the news and appears in drama —watchers of the BBC’s newest legal drama, Silk, will have noticed that she is still to handle a breach of contract case.

It’s the part of law that regular people have the most opinion about and that’s not always a good thing.

The Guardian today reports that a 12-year-old boy in the US is accused of the murder of his parents. The particular facts are typically nasty (two victims shot dead with two survivors: one stabbed and also shot and the other slashed) but the unusual question of law is how he should be tried: as an adult or a child.

He’s twelve. It really should be very easy to work this one out. The question is a bizarre legal fiction that I’ve never understood — it turns out you can define people, inherently counterfactually, as older than they actually are so that you can do things to them.

The problem (however it is presented) is the difference in sanction that the legal system gives to the two groups. Adult criminals get harsher penalties than child criminals and as a species we don’t particularly like to see criminals facing reduced penalties — you only have to look at the persistent calls for hanging to brought back to the UK to see that. Of course at this point in the process we don’t even know if he did it yet so it’s not appropriate to measure his cell anyway.

However there is no benefit in drawing a distinction between children and adults in the legal system if we get to choose to bend reality and choose which one they are. Prosecutorial discretion should not stretch that far. The reality is that the accused in this case is twelve years old. He’s a kid and there’s nothing we can do to change that.

What more is there to decide?

H/T: The Guardian