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Archive for October, 2015

Alternative legal practice

Alternative practice

The practice of law in an alternative way attempts to address the fact that the poor are denied justice and to resist the fact that law is used by many lawyers as a means of making large sums of money – in some cases, obscenely large.

Alternative practice challenges the absurdly unbalanced relationship between the most highly-paid lawyers and poor people who cannot afford their services.

It resists the deliberate obscurity of legal rules, interpreted and explained by the legal priesthood, which mean that even the most articulate and highly educated non-lawyer finds it practically impossible to penetrate the curtain of incomprehensibility.

The following are suggested ideas for the development of a legal practice outside the mainstream. In this context it is important to note that all aspects of legal practice in England have changed significantly during the last decade, and are likely to develop further. Most of these changes have followed a neoliberal agenda and reflect movement towards the free market, for example the permitting of mixed legal businesses and direct access to barristers.

The following proposals have nothing to do with the often-quoted and accepted supremacy of the market. Rather, they defy market forces and aim to develop legal practice, not in the interests of an elite profession, but in the interests of deprived groups, for example the poor, the homeless, the unemployed, the disabled and victims of discrimination.

 

Campbell’s view (The Left and Rights) is that the radical lawyer is both tolerated and ignored. Tolerated because his existence seems somehow “good” for the profession at large – making it representative of all opinion – and ignored because what he does in the affluent liberal hour threatens no-one. The radical lawyer is entangled in a situation where he is committed to undermining the very structure which provides his own power base.

The theoretical basis of alternative practice involves the following principles:

  • Resistance to war, racism, discrimination and exploitation
  • Opposition to money fetishism
  • A commitment to demystification
  • The pursuit of social justice

Opposition to traditional formalities and conventions which hinder access to justice.


Death of psychiatric patient: health and safety prosecution: Scottish Health Board fined

Death of psychiatric patient: Scottish Health Board fined

Crown Office and Procurator Fiscal Service v NHS Ayrshire and Arran (2015) Kilmarnock Sheriff Court, October 27

HNS Ayrshire and Arran has been fined following the death of a psychiatric patient in its care.

Significant points of the case

  • In August 2010 Gary Niven, a patient with a history of depression, hanged himself in the A&E department of Crosshouse Hospital in Kilmarnock. He died a few days later.
  • The risk of psychiatric patients being left alone was identified by the Health Board. It had procedures for staff to follow but these were not followed for Mr Niven.
  • Mr Niven had been taken by ambulance to the hospital after saying he was feeling suicidal and had already attempted to hang himself. He was taken to a room where the doors were always left open so that he could be observed. A charge nurse noticed that the doors were closed and Mr Niven was found inside, having made a ligature from the arm of his jumper.

NHS Ayrshire and Arran was fined £100,000, reduced to £67,000 on the basis of an early plea of guilty, under section 3, HSW Act, for failing to ensure the health and safety of non-employees.


Ogden Tables: knowledge of age: unintentional racism?

 

The Ogden Tables

These Tables took their name from Michael Ogden QC who was the chair of the working party which first drew them up. They involve the calculation of multipliers for future financial loss in personal injury cases based on actuarial principles. They are of crucial significance in personal injury cases.

The multiplier takes a claimant’s life expectancy and multiplies it by a rate of annual loss. The age of the claimant is a key factor. The Tables do not refer at all to a claimant who does not know his or her age.

The assessment of compensation is a highly-paid branch of law on its own. It is practically impossible for a successful claimant to accurately calculate his amount of compensation himself. Money can thus be made by lawyers from deciding on an amount of money.

The assessment of amounts of compensation for civil wrongs depends, as a starting point, on the age of the claimant. Legal textbooks dealing with civil procedure state, without further explanation, that formulas for future loss of earnings and other aspects of compensation depend upon the claimant’s age. The assumption of knowledge of age is the basis of the entire system of assessing amounts of compensation. Did the compilers of the Ogden Tables realise that some citizens have no birth certificates? Those of us who have worked with deprived persons from the Afro-Caribbean community know that, for a number of the middle aged and elderly, their date of birth is unknown. They know that they were born in the Caribbean fifty or sixty years ago but they have no record of their date of birth. The absence of proper certification systems in the colonial or post-colonial territories, with the implications of a legacy of slavery, means that such persons are at a huge disadvantage in their dealings with the legal system. On top of their weakness on financial and educational grounds, they face the added disadvantage of a third-world registration system up against a first-world legal system. How can you assess compensation if the client does not know his or her age? The unthinking assumption that all potential claimants know their dates of birth can be characterised as a form of unintentional racism in that it places certain ethnic groups at a disadvantage.

The issue of those who do not know, or cannot prove their age, is significant in the context of asylum and immigration cases, where “age dispute” is a recognised area of law. The Ogden Tables are untouched by this reality.


Scottish care home scalding: company and employee fined

Care home scalding: company and employee fined

Crown Office and Procurator Fiscal Service v Sharon Dunlop and Real Life Options (2015) Livingston Sheriff Court, October 22

A care home company and one of its employees have been sentenced following an incident in which a resident suffered 40 percent burns in a scalding bath.

Significant points of the case

  • In August 2013 Nicola Jones, a resident of a care home in Bathgate, was given a bath by Sharon Dunlop, a care support worker. Dunlop failed tro check the temperature of the water. Ms Jones was scalded. She required major surgery and now has to use a wheelchair.
  • Employees were supposed to check the water temperature before a service user bathed, and to make a record of this check. The company did not provide written instructions confirming this.

Sharon Dunlop was sentenced to a community payback order to carry out 160 hours of unpaid work over 10 months, for a breach of section 7, HSW Act. This section states, in summary, that it is the duty of every employee at work to take reasonable care for the health and safety of himself and of any other persons who may be affected by his acts or omissions at work.

Real Life Options, the care home provider, was fined £20,000 under section 3, HSW Act, for failing to ensure the health and safety of non-employees.

An HSE inspector is reported to have commented after the case that the injuries had been easily preventable by the simple act of checking the water temperature. Employers should ensure that their staff are provided with a thermometer and training in the safety aspects of bathing or showering people for whom they provide personal care.


EP Thompson on the rule of 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!


Scaffolding death in Scotland: health and safety prosecution

Scaffolding death: £40,000 fine

Crown Office and Procurator Fiscal Service v Extra Access Ltd (2015) Hamilton Sheriff Court, July 31

Extra Access Ltd, a Glasgow scaffolding company, has been fined following the death of a worker.

Significant points of the case

  • In September 2011 James Baillie, a roof worker, was carrying out roof work at a property in South Lanarkshire.
  • He fell through a scaffold tower deck six metres to the ground and suffered fatal injuries.
  • The deck was in a poor state of repair because of brown rot decay. When Baillie walked on it, it broke.

The company was fined £40,000 for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees.

An HSE inspector commented after the case that there was no excuse for allowing the use at work of mobile tower access components which were in such a poor condition. The scaffolding industry was well aware of the risks involved in this type of work.


Law Centres: a positive way forward?

The original concept of the Law Centre was a service of salaried solicitors and legal workers who would be able to devote themselves to people’s needs, choosing priorities which reflected the seriousness of the need rather than the profitability of the case. The staff were accountable to a management committee representing locaal organisations and interests. When the movement started, it was described by the Law Society as a means of stirring up political and quasi-political confrontation.

In 1979 the Royal Commission on Legal Services commented as follows:

The impact of law centres has been out of all proportion to their size, to the number of lawyers who work in them and to the amount of work it is possible for them to undertake. The value of work they have attracted shows how deep is the need which they are attempting to meet.

A spokesperson for the Law Centres movement is reported to have commented that the most important thing to know about Law Centres was that they did not just do casework. Their philosophy was that they promoted legal solutions to the problems of poverty, discrimination and social exclusion. The role of Law Centres was to campaign for wider social justice by doing strategic work, including education, test cases and group actions.

Gifford stated in 1986 that the issues dealt with by Law Centres included:

  • Taking on agencies which had been a major source of oppression and injustice: uncaring central and local government departments, slum landlords and autocratic employers.
  • Acting for groups of people suffering a common grievance.
  • Educating people about their legal rights.
  • Helping people to organise in tenants’ associations and trade unions.
  • Tackling acute problems which lawyers ought to be involved in but rarely are.
  • In terms of financial problems, one in three Law Centres are currently reported to be on the critical list and are only surviving by cutting back on more complex, time-consuming cases. Cities like Birmingham and Leeds have been left without Law Centres. They have reached the point where they are providing an extremely inferior and diminished product.

Sita fined £200,000 for health and safety breaches

Sita UK fined £200,000 for telehandler injury

Health and Safety Executive v Sita UK Ltd (2015) Preston Crown Court, October13

Sita UK Ltd has been fined after an employee suffered serious injuries when he was struck by a telehandler.

Significant points of the case

  • As an employee walked across an outside plastics hand sorting area at a waste transfer station in Darwen, Lancashire, he passed behind a stationary 7.5 tonne telehandler.
  • The telehandler reversed, struck him and ran him over. He was hospitalised for two months.
  • The company had failed to provide adequate segregation between pedestrians and moving vehicles. It had identified the risks but had failed to put suitable controls in place.

The company was fined £200,000 plus £12,000 costs for a breach of section 2, HSW Act, for failing to ensure the health and safety of employees.

An HSE inspector is reported to have commented after the case that employers need to look carefully at their workplaces regularly to make sure that pedestrian routes are clearly marked and physically separated from vehicle route wherever possible.


The criminalisation of private landlordism and law practice

 

THE CRIMINALISATION OF PRIVATE LANDLORDISM AND LAW PRACTICE

Can it be done? Has it ever been done?

The 1959 Cuban revolution destroyed the private practice of most Havana law firms. The practice of law was considered to be a parasitic bourgeois profession. The Cuban Law on the Organization of the Judicial System (1973) eliminated the private practice of law. Legal services are provided by bufetos colectivos (collective law offices) which are the exclusive providers of legal services.

Again, in Cuba, the private renting of housing was abolished after the 1959 revolution. Housing is a public service with the state as primary landlord. Housing law has the primary social objective of providing shelter to all citizens. It is based primarily on the recognition of the social function of housing as opposed to its commercial or investment value. There are virtually no homeless people in Cuba.

Article 1, Protocol 1 of the European Convention on Human Rights guarantees the right of property and protects individuals from arbitrary interference by the state with their possessions. However, it recognises the right of the state to control the use of and to expropriate the property of individuals in the public interest. The taking of property in pursuance of a policy calculated to enhance social justice can properly be described as being in the public interest. If Parliament were to pass legislation which criminalised private landlordism and the private practice of law, this could arguably amount to a policy calculated to enhance social justice.


Amazon sues 1,114 “fake reviewers”

The US retail giant Amazon has filed a lawsuit against 1,114 anonymous reviewers for making “false, misleading and inauthentic” reviews paid for by sellers to improve their products’ attraction. In doing so, it says its brand reputation is being damaged;
“While small in number, these reviews can significantly undermine the trust that consumers and the vast majority of sellers and    manufacturers place in Amazon, which in turn tarnishes Amazon’s brand…”

Its internal investigation found that people via a website Fiverr.com were advertising a five star review and offering purchasers to write their own reviews. One such review related to a USB cable, with comments such as “this has lit up my life” and “cool charger”. One reviewer named as “bess98” in the legal reviews stated; “I will do, Amazon Reviews for $5” and would post an “awesome review on your Amazon product”. When contacted by the Amazon investigator, posing as a retailer, he was told that “you have to provide me the review text”. Another named “Rerina” offered to provide up to nine 5* reviews for $5 each. The investigator was told “you know the your (sic) product better than me. So please provide your product review, it will be better.” Some go further, and offer to place “verified reviews”, showing the reviewer has purchased the item. In this case, many ask for voucher codes so they can order the product without buying it, while others say they are willing to receive an empty envelope or parcel so to create a shipping record with Amazon.

Fiverr is not a defendant in the proceedings and is working with Amazon to resolve the issues. This latest action comes after Amazon took on a number of websites in April for selling fake reviews.