Archive for July, 2013

E P Thompson on law

EP Thompson
Thompson was a leading English historian, writer and peace campaigner. His leading work is generally recognised to be The Making of the English Working Class (1963). A former member of the Communist Party, he left the Party in 1956 following the Soviet invasion of Hungary.
In Thompson’s opinion, there is a difference between arbitrary power and the rule of law. We ought to expose the shams and inequities which may be concealed beneath this law. But his view was that the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, is an unqualified human good. To deny or to belittle this good is, in this dangerous century when the resources and pretensions of power continue to enlarge, a desperate error of intellectual abstraction. More than this, it is a self-fulfilling error, which encourages us to give up the struggle against bad laws and class-bound procedures, and to disarm ourselves before power. It is to throw away a whole inheritance of struggle about law, and within the forms of law, whose continuity can never be fractured without bringing men and women into immediate danger.
It is difficult to believe all this today (1979), argued Thompson, when the nation is being co-opted firmly to conservative ideology, when the “rule of law” passes silently to the “rule of existent capitalist law”, when politicians and some lawyers are continually thinking of new ways to law us all into subordination. The temptation grows for us to react by unmasking all law and to speak of abolishing it, of exposing the rule of law.
Thompson’s view was that, in this country, the successive constitutional and legal rights of the citizen, from habeas corpus and the jury system onwards, rights of the press and of speech, rights of trade union organisation, cannot be seen as the products of bourgeois cunning, but as the products of successive struggles. The jury system originated when the bourgeoisie was not yet a glint in feudalism’s eye!
Thompson stated that law matters. He commented that much law is now a very nasty business, in the service of money and property, and that some of the best-paid lawyers in London were in effect paid for finding out ways of breaking the law, finding loopholes for money to run through.
Law, Thompson wrote, matters very much to a historian. The struggle to change class-bound laws and corrupt or class-bound procedures, and to preserve and extend the real gains of the practical struggles of the past, and to defend not only the trade union and labour movement but also the individual from the new pretensions and resources of state power, remains on the daily agenda.

Thompson, Writing by Candlelight
Thompson commented further as follows:
• Under the common law an Englishman is to be tried by his peers. These peers are to be selected at random, without respect to their beliefs or opinions, and to be subject to no influence of state.
• When jurors enter the box, they enter also upon a role which has certain inherited expectations, and these expectations are inherited as much from our culture and our history as from books of law. There have been occasions in our history when that anonymous Gang of Twelve has withstood the whole awful pressure of both court and Crown.
• The jury is the last place in our institutions where the people take a hand in administering themselves.
• In the old days the profession of the law attracted many members of an uppish middle class. Lawyers might have Whiggish propensities, as advocates of the people against the Crown. Or they might have propensities which, while Tory, were profoundly paternalist, in which they could posture as fathers and protectors of the poor.
• All this has long gone away (1980). There have been in this century, and there still are, outstanding and liberal-minded advocates. But this minority, for the purposes of promotion, put themselves out of court. A few have been permitted to pupate, but scarcely a single one to blow in ermine as a judge.
Thompson referred to lawyers employed in the service of those who are working out means of avoiding tax and estate duties, setting up evasive trusts, engineering property-development and outwitting planning officers, promoting and merging companies in dubious ways, scrutinising complex legislation to find the pin-hole of unsealed logic through which money can make its leaky way.
Law today, commented Thompson, can be a profoundly corrupting profession.
In Thompson’s view, the rule of law is an unqualified human good. The rule of law must always be historically, culturally and, in general, nationally specific. It concerns the conduct of social life, and the regulation of conflicts, according to rules of law which are exactly defined and have palpable and material evidences – which rules attain towards consensual assent and are subject to interrogation and reform. That this itself is an ideal definition, which takes little account of social and ideological determinants of property and class, and which has never been matched by social reality, does not mean that the aspiration towards that state is not a human good.

No win no fee

“No win no fee”
“No win no fee”, in reality, is a grotesque over-simplification which reflects the naïve innocence of clients. It has developed into an impenetrable jungle of regulations and procedures, mostly concerned with insurance premiums and payments. There is also a significant body of case law dealing with CFAs and their insurance implications.
In outline, a solicitor assesses the chance of success in a case and decides on a success fee to be paid on top of normal fees if the claim succeeds.
This includes the cost of an insurance policy to cover costs if the claim fails.
The introduction of CFAs is another example of the commercialisation of legal practice. CFAs make it less likely that poor claimants with cases which are not overwhelmingly likely to succeed will be able to find professional representation.
Claims with a significant risk of failure are not taken on.
In 2009 a study by Oxford University concluded that the use of CFAs in defamation cases (essentially, libel) made such cases 140 times more expensive in England and Wales than in other European countries. Defendants who lost defamation cases faced a doubling of reasonable costs against them. Media outlets were being forced to settle claims because of the financial risks of fighting such cases. CFAs in defamation cases enabled lawyers to charge up to twice their normal fees of up to £800 an hour. The study made the point that media companies were being forced to self-censor because they had no economic incentive to defend defamation claims. Where the claimant had the benefit of a CFA, there was no longer any incentive to control the amount of work being done. This distorted the normal costs control mechanism and potentially breached Article 6 of the European Convention on Human Rights (the right of access to justice) and Article 10 (freedom of speech).
Compensation in libel cases assesses a person’s reputation as if this was a commodity.
The valuation of a person’s reputation in money risks undermining the very thing which the law seeks to restore, namely the intangible good name of the injured person. The law of defamation is fundamentally geared towards financial compensation.
English law imposes a monetary value on injuries. Although there are a number of non-money remedies available in the employment tribunal, they are rarely ordered. Employment tribunal claims, like the vast majority of civil claims, are mainly about money.
What is the client’s ultimate aim? If it is financial compensation, then the system functions. If it is otherwise, for example to “obtain justice” or to “have a day in court”, the procedural aspects of the case become highly problematic.

The Bar Council’s guidance on public access work for barristers makes the following points about CFAs:
• While in principle there is nothing to prevent barristers undertaking work on a conditional fee basis, there are likely to be considerable problems with their doing so in public access work.
• Barristers should consider the question of payment. Payment in advance or on completion of a particular piece of work would not be possible since, by definition, no fee is payable until success has been achieved.
• Any money paid in advance would be the client’s money and barristers are not permitted to hold this.

Claims management services
Since the introduction of conditional fee agreements (“no win no fee”) in England, many claims management companies, formed to profit from such agreements, have been heavily criticised for high-pressure sales techniques and the high cost of their services, which can significantly reduce the amount of compensation received by claimants.
In 1995 English lawyers were allowed to take on cases on the basis that, if they lost, they would not charge. If they won, they would charge a success fee calculated as a percentage of costs to recompense them for the risk of not being paid.
In April 2000 personal injury cases were taken out of the legal aid scheme and replaced with conditional fee agreements.
Between 2000 and 2004 there were, reportedly, 130,000 references to the Citizens’ Advice Bureau related to rogue claims management companies and poor legal advice.
Part 2 of the Compensation Act 2006 responded to these criticisms by introducing strict regulation of the claims management industry.
The Act states that all claims management companies must be registered. They are obliged to comply with detailed rules which are designed to protect consumers. For example, the Act makes it unlawful for representatives of such companies to visit accident victims in hospital to encourage them to make claims.
In August 2009 the Ministry of Justice reported that 100 claims management companies had lost their authorisation to provide services since the Act of 2006 came into force. The reasons for the disqualifications included:
• Criminal convictions for fraud.
• Misleading marketing.
• Some companies targeted consumers who were in debt.
• There was a trend towards high pressure cold calling from call centres, including making unsubstantiated claims and encouraging people to hand over fees on the spot.
Claims management companies are now prohibited from advertising in hospitals and doctors’ surgeries.
These companies can be seen as an example of the parasitism encouraged by the rich financial rewards of the law. They are a clear example of commercial enterprises calculating and making profit from the misfortunes of others.

Police death fines

Police death: firearms officer and police force fined
Health and Safety Executive v Greater Manchester Police and another (2013) Manchester Crown Court, July 12.
Greater Manchester Police and a firearms officer have been fined after a police constable was shot dead during training.
Significant points of the case
• In June 2008 PC Ian Terry was engaged in a firearms training session at a disused warehouse in Manchester. He was role playing an armed criminal. The training session involved practising to apprehend armed criminals from a car. Terry was killed by a colleague using a shotgun. He suffered severe fatal chest injuries.
• The officer responsible for the course, referred to as F to protect his identity, ran a course with a lethal combination of factors including the use of live ammunition in an aggressive scenario.
• Greater Manchester Police pleaded guilty to failing to adequately monitor the training courses which were run by its firearms unit.
Greater Manchester Police was fined £166,666 plus £90,000 costs for a breach of section 2 of the Health and Safety at Work, etc., Act 1974, for failing to ensure the health and safety of employees.
F was fined £2000 plus £500 costs under section 7 of the 1974 Act for failing to take reasonable care for the health and safety of other persons who might be affected by his acts or omissions at work.
A spokesperson for the Health and Safety Executive is reported to have commented after the case that F had been found guilty of failing to protect his colleague by introducing dangerous and reckless elements into a training exercise.
The HSE has commented that the provisions of the Contempt of Court Act apply to this matter and a court order protecting the identity of F.

New Squatting Law

New Squatting Law
Squatting is generally defined as entering land or a building as a trespasser and living there, or intending to live there. English law has generally never labelled squatting as a criminal offence. The main remedy available to a premises manager whose property has been occupied has, until 2012, been an action in the civil courts. There is also the remedy of re-entry, which enables a person entitled to possession to re-enter property provided that no more force than necessary is used to remove a squatter. This right was modified by the Criminal Law Act 1977, which, in summary, made it a criminal offence for anyone, other than a displaced residential occupier, to use or threaten violence for the purposes of securing entry to any premises occupied by another.
The Act of 1977 also stated that where a displaced residential occupier or a protected intending occupier told squatters to leave, the squatters committed an offence by remaining on the property. A “displaced residential occupier” is a person who has occupied the property as a residence but has been excluded by squatters. A “protected residential occupier” is someone who intends to occupy a property as a residence, has written evidence of that intention, and is prevented from moving in by squatters.
The legal position has been significantly changed by section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which states, in summary, that a person commits an offence if he/she is in a residential building as a trespasser having entered it as a trespasser, and ought to know that he/she is a trespasser, and is living in the building or intends to live there for any period. This appears to be a clear and general criminalisation of squatting, and transfers enforcement from the civil courts to the criminal courts. But there are definitional issues with the new offence which remain to be interpreted by the courts.
“Building” is defined as any structure or part of a structure, including a temporary or moveable structure. A building is “residential” if it is designed or adapted, before the time of entry, for use as a place to live. A trespasser who modifies a non-residential building by, for example, placing bedding in it, will not be committing an offence because the building had not been “adapted” before he or she entered it.
Section 144 does not define “trespasser”. Trespass is an ancient common law concept, essentially amounting to an unjustifiable interference with the possession of land. Trespass to land normally takes the form of entering it without permission. It is no defence to show that the trespass was innocent, for example that the person entering honestly believed that the land belonged to him. Trespass to land is not normally a crime. The traditional sign which states that trespassers will be prosecuted as been described as the “wooden lie”. Any intentional, reckless or negligent entry will amount to a trespass.
The phrase “living or intending to live” in the property may be problematic. Its aim is to exclude people who are in the property momentarily or have no intention to live there. The Crown Prosecution Service gives the example of a person who enters the porch or hall of a home to deliver junk mail. That person is a trespasser but will not be covered by the new offence.
The new offence does not apply to previous or current tenants who have not paid their rent or who have not stayed on after the end of a tenancy. In this connection, landlords will not be able to use the new law to evict tenants who have habitually failed to pay rent or to vacate premises. The distinction between a tenant and a squatter may not always be clear.
Where the offence applies, the police have power to enter and search premises to make an arrest where they have reasonable grounds for believing that an offence has been committed. Anyone found guilty of the offence can be sentenced to a maximum of 6 months imprisonment or a £5000 fine, or both.
The Crown Prosecution Service has stated that a prosecution under the Act of 2012 must always be both necessary and appropriate. Public interest considerations in deciding whetehr or not to prosecute include the following:
• Whether entry was forced
• Whether damage has been caused
• Whether there has been use of gas, electricity or water
• Whether other options were available to the squatter
• The mental health of the supect.
The first reported prosecution under section 144 was that of three squatters at a property in Pimlico owned by London & Quadrant, a housing association managing homes throughout Greater London and the southeast. The property became vacant in August 2012. The association’s staff was showing people around the property when they discovered that three squatters were on the premises. London and Quadrant started civil proceedings to remove the squatters. The police arrested one of the squatters for an unrelated matter. He took them to the property and all three were arrested and charged with offences under section 144. The arrests were made on September 2, the day after the section came into force. Alex Haigh, one of the squatters was sentenced to 12 weeks imprisonment. The others were fined.
London and Quadrant is reported to have stated after the case that after it had begun its own action to seek the removal of the squatters under previous legislation, the police informed the association that they had arrested the people concerned.
A spokesperson for the local authority is reported to have stated that the new powers had helped to speed up the process of removing squatters who illegally occupy homes and enable social housing providers to make properties available again for people on housing lists more quickly than was previously possible. The authority supported the police action and the fact that the house was now made available to someone genuinely in need who was waiting for a home.
The borderline between residential and non-residential property may not always be clear. The question of the application of the new law to properties of mixed use remains to be resolved. But where a property is definitely non-residential (that is, commercial), other offences may be involved, for example:
• Causing criminal damage when entering or occupying the premises
• Failing to comply with a court order to leave
• Theft
• Unauthorised use of utilities.
Premises managers of commercial properties can apply to a court for an interim possession order (IPO) as a matter of urgency. Squatters who fail comply with an IPO within 24 hours are committing a criminal offence. An IPO cannot be issued if a claim for compensation is also being made, if more than 28 days have passed since the landowner knew about the squatters, or against former tenants, subtenants or licensees.
A spokesperson for the British Property Federation is reported to have commented that the increased threat of squatting in commercial properties would leave some landowners with no choice but to demolish their buildings.

Nazi law and class justice

Nazi law: extreme class justice
The National Socialist theory of law in Hitler’s Germany included the following:
• The “leadership principle”. The state is a group and a group has no strength or unity without a leader. The leader is the mystical personification of national unity. Law and the state mean the same thing. Since the leader is the embodiment of the state, law is what the leader commands. Therefore, unquestioning obedience is demanded; the law serves political ends; nothing must stand in the way of implementing the will of the leader.
• The “racial principle”. Law is inherited by blood. It should serve the ends of the state and its policies. It should help to preserve racial purity. The German Code of 1900 was based on Justinian’s version of Roman law. It was therefore “Jewish” in origin. The only international system which could be tolerated was a Nordic one. Every state has a natural privilege and power to prevail over other states and to take their land as room for its people. Any treaty which attempted to restrict this privilege could be ignored.
Nazi law was not central to the exercise of power by the National Socialist party, but it formed part of a system which brought unimaginable suffering to millions.

Legal practice in Cuba

The following aspects of legal practice in Cuba have been reported:
* After the revolution which displaced the Batista regime, the prestige of lawyers declined and many left the country. Fidel Castro advised young Cubans to study medicine, science and engineering rather than the law. This resulted in a dramatic decline in the number of lawyers, who were disparaged as corrupt and useless vestiges of the capitalist class.
* Independent legal practice is not permitted.
* Lawyers work in Bufetes Colectivos. These are collective law offices. They were established by the Ministrty of Justice following the abolition of the private practice of law. Bufetos Colectivos are controlled by the National Organisation of Bufetos Colectivos (ONBC). This body is responsible for professional conduct and ethics.
* In 2009 there were estimated to be 2000 lawyers in practice in 250 bufetos. They are reported to have large caseloads and to work in difficult conditions.
* Lawyers are expected to uphold the principles of socilaist legality.
* Cuban law reflects the country’s history. Influences on Cuban law include Spanish Codes, American law and Soviet bloc principles.
In this context, consider the following statement by the treasurer of the Inner Temple in 2012:
Great Britain is a state with open, unbiased and transparent justice, where contracts are enforced according to their terms, property rights are upheld, and where criminal justice is administered efficently and fsirly. Corruption is not tolerated and there is no elite which can operate above the law.