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Archive for April, 2016

Law as a potentially corrupting profession through money fetishism?

Law as a potentially corrupting profession

The rule of law by money can corrupt many young lawyers. They may start as idealists, believing that English law can be equated with justice and that they can help to right wrongs. They have seen television programmes where glamorous young crusaders win legal battles against the forces of evil. They are ambitious, energetic and altruistic. They have invested large sums of money in the qualification process. As their careers progress, they may be changed in the following ways:

  • A widespread ethos of pomposity and arrogance starts to influence them. The dependence of less informed people upon them for advice and information, and the acknowledgment by non-lawyers of their superior skills, can mean that they become patronising without even being aware of it.
  • The injustices which they see every day of their working lives can harden and coarsen their attitude to clients. They become increasingly cynical and indifferent to human suffering. Gradually, they are influenced by money-worship, by materialism and by the aims of the profession seen almost exclusively in terms of financial success and failure. Their youthful idealism is replaced by an unfeeling preoccupation with profit. It is very difficult for any young lawyer entering the profession to remain untainted by hourly charging rates, success fees and bottom-line cash flow.
  • If a response to this is that the profession cannot function on fresh air, that if lawyers did not make a profit the profession would wilt and fade away, then a reply could be that any supposedly socially useful profession which is largely obsessed with money making could, in the interests of a healthy society, usefully fade away.

Ebbw Vale factory explosion: worker injured: £40,000 fine

Factory explosion: company fined £40,000

Health and Safety Executive v Sears Manufacturing Company (Europe) Ltd (2016) Cwmbran magistrates’ court, April 22

Sears Manufacturing, a vehicle seat manufacturing company, has been fined after a worker suffered burns in an explosion.

Significant points of the case

  • In January 2015 an operator at the company’s site in Ebbw Vale was working with a highly flammable release agent, used to prevent dispensed foam sticking to seat moulds.
  • The release agent ignited and exploded. The operator suffered burns to his head and hands.
  • A failure to have suitable control measures in place caused the release agent to ignite.

The company was fined £40,000 plus £12,000 costs for breaches of regulations 5, 6 and 9, Dangerous Substances and Explosive Atmosphere Regulations 2002 (DSEAR).

DSEAR aims to protect people from fires and explosions arising from dangerous substances in the workplace. The regulations create a duty on employers to ensure that risks of fire and explosion arising from dangerous substances are assessed thoroughly and either eliminated or reduced so far as is reasonably practicable.


Corporal punishment lawful in 19 US states: Cuba lectured on human rights

Aspects of the Cuban system

  • Husbands are legally obliged to share equally in household chores and child rearing.
  • Mortgage payments are set at a maximum of 10 percent of salary.
  • Personal injury lawsuits are rare.
  • Lay judges, chosen from the workplace, sit alongside traditional judges at trials.
  • The welfare of society is put ahead of individual rights.
  • In balancing social good with individual interests, the emphasis is on collective welfare. There is a deep sense of community.
  • In 1994, a severe economic crisis resulted from the collapse of the Soviet bloc. One consequence of this was that it was thought that more lawyers were needed. New areas of law have been developed, including tax, trademark registration, a new labour code, consumer rights, an updated contract, a new criminal code and bankruptcy.
  • The Cuban revolution of 1959 was based on humanistic and egalitarian aims. These included gender and race equality, the redistribution of wealth, land reform and the realisation of social and economic rights to housing, health care and education.
  • The legal system was of minor relevance to these aims. During the early part of the Castro regime, law comprised a large number of decrees made by the revolutionary leadership.
  • In 1976 a new Constitution came into force, together with new codes dealing with, for example, the legal profession, the judicial system, employment law and criminal justice. Legislation came to be seen as a primary instrument for social change.
  • The central, general aim of the revolution has been the creation of a system of economic well-being founded on the equitable distribution of resources. Achievements in universal free education, health care and equality are now regarded in Cuba as fundamental rights. It is generally recognised that individual freedoms have been subordinated to these collective aims. It is clear that those who oppose the socialist system are subject to limitations on their freedom of expression and association.

The question of human rights in Cuba can only be properly considered in the context of the fact that the United States has continuously attempted to undermine and destabilise Cuba’s government. These attempts have included an invasion, assassination attempts, an economic embargo and travel restrictions.


Asbestos disturbance: two companies fined: when will they ever learn?

Asbestos disturbance: £10,000 fine

Health and Safety Executive v 24-Hour Maintenance Services Ltd and Firestone Estates Ltd (2016) Westminster magistrates’ court, April 13.

Two companies have been fined following the disturbance of asbestos.

Significant points of the case

  • Between July 2014 and August 2014 two employees of 24-Hour Maintenance disturbed asbestos insulating board (AIB) during refurbishment work at commercial premises being converted into flats.
  • Firestone Estates, the client for the project, had not passed on the details of the asbestos to the contractor, despite prior knowledge.
  • No refurbishment and demolition survey had been carried out to determine the presence of asbestos on the site. The two employees stripped out the AIB without any precautions and therefore were subjected to significant exposure to asbestos fibres.

24-Hour Maintenance Services was fined £5000 plus £970 for a breach of section 2, HSW Act, for failing to ensure the health and safety of employees.

Firestone was fined £10,000 plus £1000 costs under regulation 10(b), Construction (Design and Management) Regulations (CDM) 2007.

Regulation 10 of CDM 2007 states, in summary, that every client shall ensure that every person designing the structure; and every contractor who has been or may be appointed by the client, is promptly provided with pre-construction information.


Oral tobacco in Finland and Sweden: lessons for criminology

Oral tobacco

In Sweden and parts of Finland, the use of oral tobacco as an alternative to smoking is fairly widespread. Oral tobacco is a legal product in Sweden but is banned elsewhere in Europe including Finland and the Aland Islands. These are an archipelago of 6500 islands in the Baltic Sea. They are a Swedish-speaking autonomous province of Finland.

Ferry ships operating between Sweden and Finland have oral tobacco for sale. The current state of European law appears to be that ferries registered in Sweden and operating via the Aland Islands are allowed to sell oral tobacco. Alandic registered vessels are not. Criminality, in this context, depends upon the place where a ship is registered. A passenger on a Swedish ship can lawfully buy oral tobacco. A passenger on an Alandic ship is a criminal if he does so.

It may be assumed that we will wait in vain for Crimewatch to denounce the oral tobacco chewers of the Aland Islands or for criminologists to seek explanations for their criminal behaviour.


Argyll shellfish diving safety failures: contractor fined £4000

Shellfish diving safety failures: £4000 fine

Crown Office and Procurator Fiscal Service v Douglas Cameron (2016) Campbell Sheriff Court, April 8

Douglas Cameron, a diving contractor, has been fined for safety failings in operations for shellfish diving.

Significant points of the case

  • In September 2014 Cameron was collecting razor clams using electric fishing methods near the island of Gigha, Argyll.
  • The use of electrical fishing equipment is not in itself an offence. It formed part of the prosecution of Cameron because the risks to divers arising from this method had not been assessed.
  • The diving operations had not been planned, managed or conducted in a safe manner.

Cameron was fined £4000 for a breach of regulation 6, Diving at Work Regulations 1997. This states, in summary, that a diving contractor is under a duty to protect the health and safety of everyone involved in a diving project by ensuring, so far as is reasonably practicable, that the diving project is planned, managed and undertaken in an appropriate manner.

An HSE inspector commented after the case that diving was a hazardous occupation and it was absolutely vital that all diving operations were planned, managed and conducted in a safe manner. There had been diving fatalities in the shellfish industry and it was imperative for contractors to ensure that divers they employed were suitably qualified, fit to dive and provided with suitable equipment to carry out the dive as safely as possible.


Cuba: Fidel Castro on lawyers after the Revolution

Cuba

The following aspects of legal practice in Cuba have been reported:

  • After the revolution, the prestige of lawyers declined and many left the country. Fidel Castro advised young Cubans to study medicine, science and engineering rather than 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 Ministry of Justice following the abolition of the private practice of law. Bufetos Colectivos are controlled by the National Organization 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 socialist legality.
  • Cuban law reflects the country’s history. Influences on Cuban law include Spanish Codes, American law and Soviet bloc principles.

Death of forklift truck driver: steel fabrication company fined £135,000

Death of forklift truck operator: £135,000 fine

Health and Safety Executive v Severfield (UK) Ltd (2016) Teesside Crown Court, April 13

Severfield (UK) Ltd, a steel fabrication company, has been fined following the death of a forklift truck operator.

Significant points of the case

  • In March 2013 Kelvin McGibbon was reversing a forklift truck at the company’s site in North Yorkshire. The truck struck some steps and overturned. McGibbon was not wearing a seatbelt. He suffered fatal crush injuries.
  • Severfield had failed to manage forklift truck driving operations. The company had not enforced the wearing of seatbelts and had not controlled the speed at which some operators drove their trucks.

The company was fined £135,000 plus £46,000 costs for a non-causative breach of regulation 5, Management of Health and Safety Regulations 1999. This regulation states, in summary, that employers must have effective arrangements in place to plan, organise, control, monitor and review systems and procedures which are designed to cover health and safety at work.


Iraq War: economic implications: the Three Trillion Dollar War

The economic implications of the Iraq War

In 2008 Joseph Stiglitz, former Chief Economist at the World Bank, and Linda Bilmes, a leading American economist, published The Three Trillion Dollar War: the true cost of the Iraq conflict. Their book examines the true financial, economic and social consequences of the Iraq war. They conclude, in summary, that the US government’s early estimate of $50 billion for the cost of the war was underestimated by sixty times. They make the following points:

  • The invasion of Iraq was a terrible mistake.
  • The decision to go to war was based on a number of false premises.
  • The total cost to the US will be $3 trillion.
  • The total cost to Britain will be £20 billion.
  • Estimates of violent deaths of Iraqi citizens are disputed. They range from 100,000 to more than 150,000, with 700,000 deaths from other causes.
  • Civilian casualties in Iraq since the invasion have been estimated at between 68,796 (Iraq Body Count) and 650,000 (Lancet October 2006). More bombs were dropped in the initial ‘shock and awe’ attack on Iraq than in the whole of the first Gulf War.
  • The main alleged “benefit” of the War – the destruction of weapons of mass destruction – had no validity.
  • The Iraq War has resulted in a humanitarian catastrophe.
  • 2.8 million Iraqis have fled their country.
  • Stiglitz and Bilmes do not deal with the legality of the War. Their economic analysis confirms the apocalyptic nature of the war in human and economic terms. In the light of a humanitarian and economic disaster of this magnitude, the legal implications have less significance for those who have suffered as a direct result of the invasion of their country. The projected cost of the War can, of course, be compared with the cost of providing a nationwide network of fully staffed and resourced law centres in the United Kingdom.

Landmark Supreme Court health and safety decision: Kennedy v Cordia (Services) LLP

HEALTH AND SAFETY

Personal protective equipment

Case  Kennedy v Cordia (Services) LLP [2016] ICR 325, Supreme Court

Statute reference   Personal Protective Equipment at Work Regulations 1992 (PPE), reg.4; Management of Health and Safety at Work Regulations 1999 (MHSWR), reg.3

Facts C was employed in Scotland by CS as a carer. She slipped and fell on an icy path leading to a client’s house and injured her wrist. She claimed compensation from CS on the following grounds:

  • Their assessment of the risk of carers falling on snow or ice had been inadequate, in breach of MHSWR.
  • They had failed to ensure that suitable PPE was provided or that the risk was adequately controlled by other means which were equally or more effective, in breach of the PPE regulations.
  • Breach of the common law duty of care.

CS had carried out a risk assessment which assessed the risk of slipping or falling in inclement weather as tolerable. Despite a history of similar incidents, CS had not considered providing PPE, for example anti-slip footwear attachments, and had advised carers to wear appropriate footwear. Evidence was given by a consulting engineer with qualifications and experience in this area.

At first instance, the claim succeeded. On appeal, this decision was reversed. The Court of Session found as follows:

  • The evidence of the engineer had been impermissibly admitted.
  • The PPE regulations did not impose a duty on employers to take precautionary measures.
  • The MHSWR regulations were concerned only with the task performed by the employee and not with K’s journey to the client’s home.
  • The risk of slipping had been adequately controlled by CS’s instructions.

K appealed to the Supreme Court which allowed the appeal and made the following points:

  • The health and safety practice of employers could properly be the subject of expert evidence. K’s expert gave evidence of factual matters, which was admissible because it was relevant and might assist a judge.
  • An employee was “at work” for the purposes of the PPE regulations and the MHSWR regulations throughout the time when she was in the course of her employment. This included travelling to a client’s home.
  • The risk of K’s slipping on snow and ice was obvious. It was known to CS and could not be avoided. It therefore had to be evaluated and CS had given no consideration to the possibility of individual protective measures. CS was therefore in breach of the PPE regulations and the MHSWR regulations.

K had been obliged to visit clients in their homes, regardless of hazardous conditions underfoot. At common law an employer was bound to take reasonable care for the safety of its employers. If CS had made proper inquiries into the risk of employees slipping or falling, it would have learned that attachments were readily available which were effective in reducing that risk. CS had been negligent in failing to provide such attachments.