Anna Raccoon on The Presumption of Innocence

I am a fan of the writing of the law blogger and author Anna Raccoon.  Her post on the presumption of innocence is worth a close read.

“There was a howl of outrage when it appeared that the Presumption of Innocence had been suspended for those individuals with a penchant for strapping explosives around their waist and ensuring that the police had a neat pile of 24 or 48 disembodied hands to match up in an effort to find the guilty pair responsible for blowing up their fellow citizens.

Liberty, all manner of glossy barristers, Amnesty International; practically chained themselves to the railings in Parliament Square on behalf of suspected terrorists who had been deprived of their internet and mobile phones under Part 4 of the Anti-terrorism, Crime and Security Act 2001 – the Presumption of Innocence was apparently the most valuable asset the United Kingdom possessed, and any abrogation from it – like assuming someone might be guilty without benefit of lengthy multi-barristered trial, rendered us no better than a rogue State.  How dare the Police take it upon themselves to presume guilt? Who did they think they were?

Not one of those expensively tutored, liberty loving, legal assinegoes can be found complaining or even mentioning an internal Police document – Special Notice from 2002 (11/02) – which formed the genesis of formal Police Policy being ‘Believe the Victim’. Everything about that statement reeks of abrogation from the Presumption of Innocence. It is ‘Believe’ not ‘treat with a professional impartiality’. It is the use of the word ‘Victim’ rather than complainant…..”

Read the rest of the post here

WF v The Scottish Ministers Important judgment on the privacy rights of victims of crime and access to Legal Aid

From Inksters Solicitors
Sylvia MacLennan represented the Petitioner

WF v The Scottish Ministers

Important judgment on the privacy rights of victims of crime and access to Legal Aid

The Court of Session has issued an important judgment on the privacy rights of the victims of crime, in the case of WF v The Scottish Ministers.

Changes to the law in 2007 gave those accused of a crime greater powers to obtain documents which they believe may assist in their defence. In the current case, an accused person asked the court to deliver the whole medical records of the complainer – the alleged victim, WF, who was told of the request and wanted to object to this as an unnecessary infringement of privacy.

Unfortunately there were no specific rules in the legislation for such objections, nor for the grant of Legal Aid to anyone wanting to object. WF, with assistance from Inksters Solicitors, used the special provisions for applying to the Scottish Ministers for Legal Aid in cases not covered by the ordinary rules.

The Scottish Ministers refused the application on the basis that WF had no right to have an objection considered by the court and that the court would automatically consider WF’s interests in deciding on the accused’s request. WF appealed this decision to the Court of Session by Judicial Review, assisted by Inksters Solicitors who instructed Dorothy Bain QC and Claire Mitchell, Advocate.

At the Judicial Review there was extensive legal debate by both sides. Rape Crisis Scotland were also permitted to make submissions to the court as “Interveners”, giving detailed written information of their experience of how accused persons had used or attempted to use victims private records and how this had been dealt with by courts in Scotland and in other countries. This was noted as being of great use to the lawyers on both sides as well as the judge to put the current case in a wider context.

After careful consideration, the court held that medical records are protected under the right to privacy given by the European Convention of Human Rights Article 8, and any disclosure must be restricted to the minimum necessary for a specific purpose to balance the interests of justice for one person against the privacy of another.

The court also held therefore that any person whose Article 8 privacy rights may be infringed by a request for a court to order delivery of documents must be notified of the request and be given an opportunity to be heard by the court to argue how much, if any, of such information should be released. The judge, Lord Glennie, also noted that that as there are currently no specific rules for this, requiring the judge to make arrangements on an ad hoc basis, it would be useful if formal procedural rules could be drawn up to assist courts dealing with such cases.

On the basis that the Scottish Ministers had erred in law, the court returned the case to them to reconsider WF’s application for Legal Aid, to allow representation at the application for disclosure of medical records, in light of the correct legal position. The judge also provided some guidance for the Ministers in how they might deal with the application by reference to the recent Victims and Witnesses (Scotland) Act 2014.

Sylvia MacLennan, Solicitor at Inksters said:

“This is a very important decision for both victims of crime and those accused of a crime. On one hand, no victim of crime should be put off from reporting it for fear that the perpetrator will have free access to their private information. On the other hand, those accused of a crime will still have a right to ask a court to order the release of information which is needed to ensure a fair trial.

A lot of preparation was needed for this case, some of which was carried out by Advocates and by Solicitors within our firm acting for free due to the public importance of the points of law which had been raised. Credit must also be given to WF for showing determination in instructing us to raise the Judicial Review which will have such important legal effect in future cases.”

***

Inksters are a full service law firm with offices in Glasgow, Inverness, Forfar, Wick, Portree and a visiting base in Lerwick. See:-

http://inksters.com

The full judgment was published by the Scottish Courts and Tribunal Service at 12 noon on 12 February 2016 and can be found at:-

http://www.scotcourts.gov.uk/search-judgments/judgment?id=2af906a7-8980-69d2-b500-ff0000d74aa7

Charon goes to a restaurant run by East European border guards?

Some years ago I did a few restaurant reviews for an excellent website,  Here is  a ‘review’ I wrote some years back in the good old days when one could smoke as one ate and drank vino rosso. 

A Bar & Dining Room
Somewhere in London

Meal for two with wine: £90
Nil points

Charon goes to a restaurant run by East European border guards?

“Have you booked?” asked the black silk shirted Maitre D’ guarding the entrance. The abruptness of the greeting took me by surprise.

“I have not booked. Do you have a table?” Blackshirt’s eyes narrowed as he flicked open the diary. The page had one entry. Blackshirt looked up, eyes darting. “How many of you are there?” It may seem to the casual observer that I suffer from dissociative identity disorder, but I was alone. I heard Sir Alec Guinness in the recess of my mind: “Charon” he said, “Use the Force….”

“I am one.”

The Maitre D’ surveyed the dining room. It was that sort of place… Not a restaurant, but a Bar and Dining Room. It was 12.30. Only two tables were occupied. “Do you smoke?” Blackshirt snapped.

“For England.” I replied.

I was escorted to a table in the corner of the room – a table for two. An East European border guard, dressed as a waitress, appeared with a menu. I selected a bottle of Claret and asked for two espressos and a glass of tap water, no ice. “You want espresso?” the waitress asked, unsmiling. “Now?”

“Yes please.” I watched her walk towards the bar. Well it was more of a march… more Red Square than Sandhurst. I was not invited to taste the wine when it arrived.

The menu was fairly typical of many gastros – a mix of “Confu**tion cooking” with a bit of thai/vietnamese nonsense thrown in. I enjoy reading Anthony Bourdain… but his books, do on occasion, get into the wrong hands… and so it was, today. Couscous and polenta featured heavily. One day I am sure that I will find a gastro pub with a dish called “Irish tagine”.

A couple were seated at a table nearby – both late twenties, both City professionals. I know this because they managed to tell me, indirectly, by relating events to each other of their successes during the week. They talked at each other; he admiring himself repeatedly in the mirrors lining the walls on our side of the restaurant. They obviously knew each other well – at least one assumes so, because, later, declining the offer of pudding, they started eating each other.

I have no idea why nutters on trains, tubes, buses and restaurants gravitate towards me – but it happend again today. The East European border guard escorted another customer to the adjacent table – a man in his early sixties, blazered, highly polished Oxford shoes, grey trousers, Turnbull & Asser shirt, silk tie and a traditional ‘British’ haircut. One could almost smell the George Trumper cologne.

“Good day to you.”

“And to you.” I replied.

“Writer?” the man asked, pointing at my laptop. I learned long ago not to answer that question.

“Just doing a bit of surfing.”

“Surfing Eh?…. yes… I used to surf when I was a junior partner with X&Y in Hong Kong…. on trips to Australia…. tied up a few M&A deals, I can tell you… out there…. those were the days…”

God in heaven. I know I drank a bottle of cider in Church once when I was at Prep school… but I had no idea, then, that I would continue to be punished for that sin nearly 40 odd years later on Easter Sunday 2007… in the form of a retired City lawyer, from the days of Tai Pan, sitting at the next table.

“Really…? good stuff.. ” I replied, affably, but with what I hoped was the correct tone to indicate that I wished ‘to be alone’. It was too late to pretend I was Bulgarian and could not speak English.

So there I was… a couple of young professionals, but a few tables away, talking at each other and Mr Drone, to my right.

“Been to Church?”

I was looking intently at my laptop screen. The words appeared to come from above. I looked at the ceiling. I looked at my bottle of Claret. I had only had one glass.

“The Vicar had a few of us back for a glass of sherry after the service”

“Really…?”

“Yes… quite a few actually. Have to splice the mainbrace after sitting through all that without being able to charge fees at the end of it! ” a statement which provoked so much laughter from the speaker that I was concerned I may have to do a Heimlich manoeuvre on him.

“Oh Yes… Vicar did us a good sermon today…”

Mr Drone told me at length that he would have been in New York to advise on a merger but the US firm had ‘cocked up’ on timing… adding that he liked to take on important cases on a consultancy basis from time to time…

“Ah….”

I drained my glass, re-filled and lit a cigarette.

“Smoker Eh?…yes… used to smoke until the Doc said to me ‘My dear chap, unless you pack in the gaspers now you won’t be able to get it up when you are 65′.” Another burst of self satisfied laughter, gave me the opportunity to wave at the waitress and explain to the gentleman seated at the next table that I needed to concentrate on my work. He made a curious signal, tapping his finger against his nose and said “Got it…Roger… mustn’t stop a chap from his work “

“You are ready with your orders?”

I smiled at the waitress, trying not to look as if I had something to declare, and ordered a main course. I justified my lack of a first course, when questioned, by explaining that I may have a pudding. She seemed satisfied with my explanation and marched off.

It takes a rare talent to cook roast lamb badly, but only inhalation of super strength cannabis would suggest beetroot risotto and chilli jam is a sensible, or even suitable, accompaniment to lamb. The waitress looked at my plate, barely touched. The lemon meringue pie had the merit of being bought in. The wine was more than drinkable and, after negotiating my release without the aid of the Foreign Office, I returned to familiar surroundings.

Postscript:  What is wrong in the picture of the food and wine glass?

Several things:  1.  The wine glass is absurdly empty. 2.  The Chef may have been smoking the garden again believing that a piece of lamb needs to have grass sprouting out of the bone  3.  The plate is almost empty of sustaining food, although I did detect some mash and a brussell sprout hiding in plain sight with a carrot.

The Salvation Army – Perth – a Place of Safety? Police to be involved now?

As you know, I am at The Salvation Army, Perth, Scotland.  I am having major problems with a very unpleasant young THUG in the room next door who shouts all night…he is still shouting at 04.20 am this morning.

This has gone on for days – despite my complaints.

I have now escalated it to a Police matter – I feel a very real threat to my physical safety.

My Twitter timeline records the state of play this morning from 2.00 – 4.00 am 

 

 

  • The THUG next door to me at Sally Army is still shouting threats Sally Army have been told formally that I want to make it a Police matter

  • I feel rather ill now with no sleep and very stressed because of inconsiderate shouting THUG at Sally Army, Perth who woke me and others up

  • Have told Salvation Army staff that inconsiderate thug who shouted, waking me, saying I was :Dead Meat”… will be a Police matter tomorrow

  • Still awake after that inconsiderate PRAT at Sally Army woke me with shouting at 1.00… escalated it to major formal complaint. I feel ill.

  • Never a dull moment at The Sally Army… headbanger next door has just shouted through wall that I am “DEAD MEAT”…for complaining! Hey Ho

    This has gone on long enough.  I have informed The Salvation Army, Perth that I will make it a formal Police Scotland matter in the morning. I will, of course, give the senior staff an opportunity to talk to me about this before doing so.

    It is now 04.30 am – I have had no sleep. 

I am 63 this May.  While I got to a 3rd Dan Black belt in Karate years ago – I am not as agile as I was when younger.   When I was at University in 1974 I broke up a fight in the student hostel at Leicester University.  6 students from Cambridge University visiting friends for the weekend were kicking another resident on the ground, injuring him badly.  I intervened – others in the block locked themselves in their rooms. I’ll never forget the sound of doors being locked!  I shouted a warning at them to stop. The Cambridge students, all drunk, all laughed, ignored me and continued assaulting my house mate. I pulled two away, turned and was hit in the face with an empty milk bottle by one of the Cambridge University students.  My skull was fractured and my nose broken by the broken glass fell down over my chin.  I lost all my teeth over the next few weeks.  I lost a year at University.   The Leicester Police messed up the prosecution and a Chief Superintendent apologised. The student who smashed the milk bottle into my face – I was in hospital and could not attend the Magistrates’ Court to give evidence was fined.  All 6 Cambridge students were sent down by the Cambridge University authorities and could not complete their studies – I was told later.

 

Ironically, I had been to see the film  ” A Touch of Class” with a lovely young lady who was at the University – the daughter of a senior High Court judge.  The High Court judge was appalled by the mess the Police had made of matters. He said it should have been a Crown Court matter and imprisonment would have been certain for my assailant.

 

I am very angry about this man’s behaviour at The Salvation Army.  He is a thug.  Police Scotland will be involved tomorrow unless The Salvation Army deal with this matter and remove the man from the premises.

I can’t sleep, I am so angry and stressed. I can’t work and earn money. This has taken away the happiness I was slowly beginning to regain.

 

The Salvation Army staff are wonderful and are trying to deal and help.

 

6.00 pm: Sally Army moved me to a nicer room on the top floor of the building – well away from the young man who kept us all awake last night.  Tired!

 

Pizza Express in Perth had a table for two but too farking greedy tonight to take me! OK…fine.. this is my response

I have eaten at Pizza Express in Perth pretty well every night for five months.  Tonight… the table for two was free – but, sadly, I am only one person.  They were too fucking greedy (I rarely swear – but, tonight, I will make an exception)  and busy potentially  to let me have the table. I would only have been there for 20 minutes.  That is their right – not good business though.  I went to a local Fish & Chip shop – cheaper and better food. I simply bought a small bottle of wine at a local Supermarket…a place called Sainsbury’s.  Cost me £1,50.  So cheaper

I have eaten at that Pizza Express restaurant most nights for over five months.  I am a creature of habit(s)

I will NEVER eat at a Pizza Express restaurant again unless they apologise…which they almost certainly won’t have the grace to do.  So It is unlikely that I will eat at a Pizza Express again. I remember eating Pizzas regularly at the Pizza Express‘ most famous restaurants in London  since 1980..(Covemt Garden to name but one) .and, in fact, did regular business with very amusing training directors from London Magic Circle firms in London some years back in the days when I ran BPP Law School, which I founded with BPP Holdings PLC as it then was.  They enjoyed the Pizza and the Italian  Montepulciano wine which we both enjoyed in good quantities! (One would not want to be accused as the former  director of Britain’s now largest Law School of trying to influence a London City or other firm Training Director.  They enjoyed the pizzas and wine and I enjoyed their company.

Yes… I was annoyed.  I rarely get annoyed.Maybe once in ten years?  Particularly as the table for two was free – but I was only one.  Pizza Express Perth need to learn that one is OK… Two may eat more…but unlikely to drink much more than one having a nice evening and give a good tip. Greed is NEVER a good business policy.

No Pizza Express restaurant in the UK or elsewhere will ever get my custom again. 

Here is a picture of the Perth Pizza Express in ‘less greedy times’. 

My tweed cap is on the table.  I rarely get angry – but Pizza Express – they had the SAME TABLE FREE but I am only one person.  I try to be two – Charon QC and Mike – nd Charon QC was with me in spirits.  In fact, it is Charon QC who drinks.  I never drink.  – but that is for fun…as was visiting Perth Pizza Express every might.  I shall now eat better food at a local Fish and Chip shop nearby, as I did tonight… but may have to go easy on the excellent chips to avoid turning into a fat bugger.

 

I am appalled that Perth Pizza Express can be so greedy and venal as to refuse a regular customer a table for two for 20 minutes – paying for a pizza and a glass of wine (£15) because they wanted to make £20 from 2 people who probably did not want wine.  Not everyone drinks wine with Pizzas.

I have been eating in Pizza Express restaurants since the VERY early days of Pizza Express – and certainly before the people running Perth Pizza Express were born.  I shall never visit another Pizza Express restaurant – anywhere in Briatin or overseas. .  Well done…Pizza Express.. you have REALLY pissed of a loyal customer who over 40 years has probably eaten more Pizzas and drunk more red wine than any of your ‘modern’ customers.  As far as I am concerned…you can fuck off… and I rarely say that in life – let alone on my blog

I encourage those of you who read my blog to let Pizza Express know your feeling on this issue…

I do enjoy the dark humour from lawyers and other friends on twitter!

Sunday 7 February: Pizza Express have apologised – an apology which I am delighted to accept.  I like the team there and they do great pizzas. 

Rive Gauche: Surely Mr Lord Darling hasn’t sold out for vain glory? Tragic if he has… Abolish The House of Lords

I am sure he is a nice chap…and I used to admire his principles.  We really need to get rid of this expensive nonsense about the ‘House of Lords’ – ludicrous on the modern era…and quite unimportant as a ‘revising chamber’ ?

And yes…ordinary and all people matter… hierarchies remind me of the villainy of Aninal Farm.  Orwell was right in so many ways.  Pigs at The Trough fpr some now – at tax payer expense.   I suspect they wouldn’t do it if they were UNPAID.

 

What do these ridiculous people who hot the dressing up box actually do to help our country.  Fark all…it seems to me.  But as I get older, I get more cynical with all honours… Geegaws and Baubles as they say in Glasgow.

I don’t need or want any Honours… Geegaws and meaningless baubles. And how much do their absurd robes cost…why can’t they just get a pair of trousers at Primark and a half decent shirt… do they need robes to do fuck all?

Guest Post: Cosmetic surgery

Cosmetic surgery is continuing to grow in popularity with more and more people opting to undergo surgical and non-surgical enhancements in order to get the aesthetic result they desire. Since treatments are highly invasive, the chance of complications always remain in the equation. Typically, cosmetic surgery is voluntary and taken at the risk of the individual and unfortunately, there are cases when the procedures don’t always end up looking how the person wanted it to. When this occurs, it can be a distressing time and it is common for individuals to react by labelling the surgery dangerous, which ultimately leads to a cosmetic lawsuit to be filed.

When these lawsuits commence, it can be a confusing time as there is a lot to be considered and digested. Therefore, this post is designed to highlight the important elements of the whole process that you need consider to help you get a better idea of it all.

Cosmetic Surgery Classification

The most common types of cosmetic surgery include Botox, liposuction, facelift, breast enlargements/reductions, lip filling and skin repairs.

On the whole, cosmetic surgery is a form of reconstruction that alters or enhances a part of your skin or flesh. Plastic surgery is often carried out as a measure to repair injured or damaged areas of the body however there are a high number of voluntary treatments for image enrichments. When this is the case, the lawsuit situation becomes more difficult due to the elective nature of the individual’s decision.

When is a Lawsuit Appropriate?

As discussed above, if the desired end result is not what the person imagined this doesn’t automatically give grounds for complaint. It does however, when it is clear that errors or negligence have occurred. If signs of misconduct are apparent this gives an individual just cause for filing a cosmetic injury lawsuit.

Current Industry Concerns

At the moment, most qualified doctors or surgeons can perform cosmetic surgery without needing further qualifications or training. This is an alarming thought when you consider the risks involved in any treatment and therefore it comes as no surprise to see that there has been an increase in cosmetic surgery claims.

The good news however is that there is a rising demand for tighter regulations in the industry. Health Education England as well as the Royal College of Surgeons are hoping that soon a system will be established where doctors need to meet a certain level of standards before the can perform any procedures. With stricter regulations this hopefully will eradicate as many errors in practice going forward.

Unqualified Practitioners and Their Liability

Surgeons and doctors who practice in cosmetic surgery must always show a high level of competency and ability. If the practitioner doesn’t show that they are meeting this degree of expertise and even awareness for the treatment, then it can be justified that the surgery did not meet medical standards. It is always encouraged that you verify the qualifications of your doctor and company before opting into any operations.

As you will know with cosmetic surgery, it is extremely difficult to get insurance for any procedure. With no health insurance put in place, underqualified surgeons get into the sector due to the lucrative nature of the market, which is most often when injury is caused to patients.

If at any time your appointed medical expert fails to make you aware of the possible dangers or chances of complications related to your procedure, they are liable to be sued. 

Errors

As discussed above, elective surgery does come with its dangers. These concerns only ever come to fruition however when in fact errors occur. The most dangerous outcomes of complications in cosmetic surgery come in the form of scarring, organ numbing and nerve/muscle injury. Even if you are confident in your doctor and his qualifications, it is never guaranteed risk free treatment. Dangers such as anaesthetic miscalculations can have serious affects for anybody and also post-surgery infections.

Your Lawsuit

If you feel like you have a case for prosecution you will need legal assistance. It is important to speak with cosmetic surgery solicitors who specialize in the area and have a history of success. In order to receive the compensation you deserve (that adequately covers the mental, emotional, physical you have suffered), you’ll need need to make sure you are honest with your lawyer and include all of the facts. Your solicitor will always act objectively when assessing your case. They will carefully study all damages, the role of the doctor and will act accordingly on your behalf in light of the facts. Always bare in mind that cosmetic surgery is subjective, so make sure that you have evidence of negligence before proceeding with any lawsuit.

Will self-driving cars help to reduce the amount of road traffic accidents?

Will self-driving cars help to reduce the amount of road traffic accidents?

You’ve probably read an endless amount of articles about self-driving cars over the past year or so, mainly from technophobe authors trying to burst the self-driving car bubble that seems to be sweeping the world. And although (slowly realizing the rant that you are about to be subject to) you may imagine me sitting in a basement with a tinfoil hat on my head, I’m actually sitting in a real office with real humans around me. Those humans all specialize in dealing with the law (specifically solicitors dealing with road traffic accidents in Glasgow ), and all of them have expressed concern and doubt about the introduction of self-driving cars to our roads.

Don’t get me wrong: I love technology. I’m currently writing this post on my iPad whilst listening to music through my Sonos and waiting for my curry to finish spinning in the microwave (apparently, I also love wasting electricity) But I also love simplicity, which is usually the purpose of new technology. We buy technology that will streamline our lives, giving us more time to spend with our friends and family (albeit usually through Facebook).

But when I think about self-driving cars, I feel a sharp pain in my head – not least because they could theoretically put me out of a job. The car manufacturers seem to dream of a utopian world where no accidents happen and everybody owns a self-driving car. I personally believe this to be a very naïve vision for the future, a vision that has undoubtedly been formed by millionaires who are very out of touch with our reality. Millionaires who believe that as soon as self-driving cars become commercially available, every single driver will rush out to buy one.

The truth is that not everybody is excited to see self-driving cars on our roads. Although it may be difficult for Tesla and Google fans to believe, some people actually enjoy the sensation of driving a traditional car. And some people aren’t interested in the latest models available – they enjoy collecting and driving classic cars, so much so that they willingly sacrifice their safety and comfort just so they can be seen in a Jaguar E-type. It’s a strange phenomenon, but it exists. And it ain’t going away.

This presents arguably the biggest obstacle (and the biggest legal loophole) facing the introduction of self-driving cars to our roads – the mixing of old and new technologies. The utopian vision set out by the self-driving car manufacturers is only viable if every single driver on our roads was in a self-driving car.

And although this may be possible within the next 50 years, the transitional period will be so disruptive and so complex that our roads will become more dangerous than ever.

Trying to determine liability in an accident involving a self-driving car and a traditional car will be the hardest aspect of the transition. Self-driving cars are essentially eliminating any human error or interference from the accident, so they will almost always prevail in court over drivers in traditional cars. Not only will this make road traffic accidents far more complex to deal with, it will favor the richer members of our society and alienate those that cannot immediately afford to purchase a self-driving car i.e. most normal people.

The only way to circumvent this issue would be to ban traditional cars from our roads, preventing millions of people from having access to their car, which has almost become a basic human right.

Many of you may argue that the complexities and difficulties surrounding road traffic accidents between traditional and self-driving cars will be worth the effort, as accidents will be less frequent and more lives will be saved. But having half of the cars on our roads operated by a human and the other half operated by a machine sounds more like a premise for a new Terminator movie than a recipe for safer roads.

Maybe I’m speaking some sort of sense. Or maybe I’m starting to sound like a tinfoil hat author again. Either way, my job (and probably your job too) is set to become a whole lot harder.