The Scots Law Student

The SLS : Life and trials of learning law in Scotland

Category: law

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.



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.


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


Blog recommendation:

There’s a fantastic book called Employment Tribunal Claims: Tactics and Precedents which I followed religiously when I acted as a lay representative during an Employment Tribunal case earlier in the year. It’s great for providing an overview of how the tribunal system works for someone just looking up at it from the bottom.

The book emerged from the collected resources and experience of a London law centre and is written from the perspective of pro bono representatives who do it a lot. The advice, from if you should claim to how you should cross examine a witness, works for everyone and it might even be worth having a read just in case if you’re an employee.

What I didn’t realise is that there is a companion site to the book at which has a regularly updated blog on employment tribunal practice. If you’re involved in employment cases I can see this being very useful to check.


The value of spam

A must read paper has been published:

Levchenko, Click Trajectories: End-to-End Analysis of the Spam Value Chain, Proceedings of 32nd annual Symposium on Security and Privacy 2011 (PDF)

It really goes without saying that someone must click on those links that come in spam emails or they wouldn’t send them. Spam isn’t a pointless annoyance; it’s a form of direct marketing. The basic technology behind spam is just vast networks of computers (often botnets) sending email and is fairly pedestrian as it goes. The only impressive thing is really the scale and a very healthy proportion of all human communication in history is spam.

The technological side of spam has been fairly well researched but spam has not really been examined from a technical-economic perspective and certainly not in an end-to-end fashion. This is what this paper does. It works out where the money goes and that’s revolutionary.

The weak link in the money chain seems to be the relatively few banks willing to handle the credit card transactions. Spam regulation, if we want to regulate it, could do worse than target these organisations.

Why wouldn’t we want to regulate spam? For me the most interesting lesson of the paper is the sheer quality of the spam based retail service. You tend to get what you ordered, it tends to be the real thing and you tend not to get your credit card ripped off at the end of it. I had pretty much assumed that even just clicking on a link in a spam email would be signing up for viruses and credit card fraud. It turns out some of these people even have pretty decent customer service set up.

H/T: Bruce Schneier Crypto-Gram 1106


Masterclass: How to keeping digging when in a hole

The police officer connected with the death of Ian Tomlinson during Operation Glencoe in 2009 has given evidence about his role in the event.

My principle reaction to Tomlinson’s death was that, regardless of what really happened that day, the authorities couldn’t have made themselves look guiltier if they tried — they seem to choose the dodgiest pathologist available to examine him, drew out investigations, refused to bring charges that were in time  and missed deadlines to bring others — and I expected the people involved to really pull out the stops in proving that there’s not a huge conspiracy involving the CPS and the Met ganging up to kill random members of the public going on here. This new evidence suggests they’re not even trying.

In particular, The Guardian reports that there was a sequence of questions designed to clarify the differences between the initial statement that the officer gave at the time and the photos and videos that emerged of the event.

Video footage and photographs shown to the jury, however, appeared to cast doubt on many aspects of Harwood’s account of the incident.

Asked whether he stood by his initial account of what had happened, Harwood appeared to struggle. The judge, Peter Thornton QC, who is an acting deputy coroner, interrupted to clarify matters.

“At the time I wrote this, I thought I fell to the floor,” said Harwood.

“At the time I wrote this, I thought I fell to the floor” ? This is a police officer who has had two years to get his story straight. That’s not acceptable for someone in a position of executive power in a first world country. He’s either lying about it for some reason[1], which we cannot have in the police, or he’s not got the brains to know when he falls over and we don’t particularly want that in the police either.

The judge seems to screw down the lid a bit more:

“Do you now accept that this is not correct?” the judge asked. “Yes,” Harwood replied.

“That you lost your baton – that is not correct?” the judge asked. “Yes,” Harwood replied.

“That you received a blow to the head – that is not correct?” the judge asked. “Yes,” Harwood replied.

“And that there were violent and dangerous confrontations – that is not correct?” the judge asked. “Yes,” Harwood replied.

When asked why he made so many errors in his account he could only manage a wimpy:

“Because at the time that is what I believed happened, from the information I had, that is what I believed happened to me.”

I frankly expect a better class of suspended-pending-investigation copper in my country. I can only wonder what the jury is making of this.

H/T: The Guardian

[1]. The next question is why did he say these “not correct” things?

4dd6465fc78a86d0987870f88dffcb9c Frivolous law suit stories, an internet comedy site that does a great line in funny articles that are well referenced and well reasoned, has published an article on the problem of frivolous law suits in the US.

Every so often, there’s a big news story about how America is drowning in an epidemic of frivolous lawsuits, and instead of going on with boring statistics and facts — which nobody wants to read — they tell sensational stories about burglars suing their victims or kids suing schools because they hurt their feelings.
The problem is that most of these stories are anywhere from half-bullshit to complete bullshit. But we want to believe them, because it feels good to believe that tons of people out there are stupider and greedier than we are, and those people are what’s wrong with this country today. Not us. We like outrageous villains that don’t hit anywhere close to home.
People like Stella Liebeck.

I really hate misreporting of court cases, my particular bugbear is human rights cases, because it means that you very often come to an entirely wrong conclusion. It’s not fair to snort at someone because his ladder slipped in manure when it actually broke.


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