Tom Watson MP Wants An Investigation into Tommy Sheridan Prosecution – Why?

The Firm Magazine reported on Monday that Tom Watson MP has raised further issues about the Tommy Sheridan trial. He is quoted as saying:-

“It’s now absolutely certain that the judgment is unsound and if Alex Salmond had a shred of decency he would use all the power he has to ensure that this is urgently dealt with.

There have been key revelations about the inadequacies of the original revelations and the methodology used by the executives working for Rupert Murdoch in the Sheridan case.

It’s certain the jury would have reached another verdict if in possession of all the facts and Alex Salmond has to ask the Crown Office to investigate how on earth this case was even brought and why it went to trial.”

As my long time reader will know, I wrote a lot about the Sheridan case last year on this blog, before it became “obsessed” about an SFL3 football team.

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Esto Law No More

http://www.firmmagazine.com/news/2733/Breaking_News%3A_Esto_Law_collapses_as_Directors_resign_.html

The rumour mill was hot this morning about the fate of Esto Law, and The Firm Magazine has confirmed (link above) that Esto Law has ceased operations.

Its website is now inaccessible without a password.

Whilst, on one hand, the way in which the organisation arose, and the concerns expressed about the actions of the parties involved, especially those on the Law Society’s Legal Aid Negotiating Team, caused a huge amount of concern and suspicion, one wonders whether, in fact, this was actually a good plan, with benefits for the criminal bar, if launched without the fuss Esto Law caused.

It would not be a surprise to see a similar entity appear very soon, but I suspect that none of the Esto Law directors would have any connection with it, nor indeed anyone with the same apparent conflicts as they had.

I understand that already some practitioners, especially sole practitioners, had signed up with Esto Law, or exprrssed a wish to do so. That suggests that there may be a market there for an enterprising firm, or team of firms, to replicate Esto’s plan.

We shall see! I suspect the Glasgow Bar Common Room will be a happier place today.

 

Esto Law – Part 2 – Now Up And Running – Is It A Good Idea?

 

 

In response to my previous post regarding this matter, which I am very grateful to Steven Raeburn of the Firm Magazine for placing on its website also, I received a comment from John Scott, one of the principals of Esto Law.

He indicated a willingness to engage by answering any queries I might have in connection with the matter, and also later on came back to me to tell me that the website, http://www.estolaw.co.uk, was now up and running.

Very professional it looks too!

As I replied to Mr Scott, I suspect questions about the issue would best come from those, such as the Glasgow Bar Association, who are directly affected by the creation of this new entity.

I do want to offer a couple of thoughts regarding the contents of the site. I am sure that, if I have at all misunderstood the position, I will be corrected.

The “Mission Statement, if you will, for Esto Law runs as follows:-

“ESTO has been created by experienced criminal practitioners as an innovative service designed to assist hard pressed and overworked criminal lawyers when their clients face police station interviews as detailed in the ACPOS Manual. ESTO, unlike the traditional firm model, is designed for the sole purpose of assisting you with your representation of your client. Esto’s work in representing your client on your behalf begins and ends in the police station.”

(NB I have left in place the links in the various matters I quote from the site.)

On the face of that, who could have an issue? Having a firm cover the police station interviews without any risk of your client being “stolen”? Great – the hard pressed criminal sole practitioner can sleep soundly in his bed, rather than turning fitfully waiting for a post-Cadder type interview to jolt him from his slumbers.

Indeed, the site itself says:-

“ESTO aims to reduce not just the demands on your valuable time but to remove the constant worry of a telephone call requiring your immediate attendance at a police station.”

The next section of the site details how it would work in practice, saying:-

“Signing up is easy. All we need are basic details and a single, annual payment, currently just one percent of your firm’s criminal legal assistance fee income in the last year, according to the SLAB Annual Report. Solicitor advocate fees, VAT and outlays aren’t taken into account.”

There is also a link to the draft service contract to be entered into with a Client Firm.

From my discussions already with some criminal practitioners, the fee being sought, namely 1% of the Client Firm’s Criminal Legal Assistance fees for the previous year, seems to many to be grossly excessive. “A liberty” as one described it to me.

Indeed, the website suggests that this 1% deal may be the “introductory” rate, which would suggest an increase after a certain time has passed.

I assume that the wise folk of Esto Law have worked out how to charge a fee to a new firm, who d not have an income from the previous year – one assumes that the work is not being done for nothing!

The contract runs for 12 months. Whilst Esto can terminate it on 28 days notice, the Client Firm cannot do so, unless (a) there is an insolvency event (to adopt the language of the SPL Rule Book) or (b) “if the provisions for payment in terms of the Legal Aid Act Regulations or provisions regarding payment materially change following the commencement of this Agreement”.

 

One can see the potential for arguments about whether SLAB changes to the Legal Aid system qualify as material.

 

The cost of the agreement is, as I have mentioned, 1% of the Criminal Legal Assistance income of the solicitor. This applies whether or not the Client Firm decides that there will be certain offences, or categories of offence, where they still wish to see the client themselves. There is no discount for restricting what Esto are to do.

 

If we take as an average fee income of £100,000 per partner/fee earner in exclusively criminal practices, then, for £1,000 per year per person (or £20 per week) there is cover avoiding those late night calls.

 

Is it worth it to a firm turning over £100,000 in Criminal Legal Aid to pay £1,000 plus Vat for the service? It is obviously up to the individuals, but already some to whom I have spoken clearly do not see that as worthwhile.

 

In addition, and this is not to lay any accusation at the door of Esto, criminal clients can be fickle and, if they feel they are being taken for granted by their solicitor, especially if remanded in custody awaiting trial, some might feel that if their lawyer wants to stay in bed, they will instruct a solicitor who is prepared to see them. Esto’s terms are designed to prevent them taking on the client. But it would not stop the Client Firm potentially losing the client.

 

In terms of fees, the total sum paid by SLAB in fees for Criminal Legal Assistance, in the last annual report, was in excess of £81 million. If every firm in Scotland signed on with Esto, then this would give them over £800,000 of fees even before any of the Advice and Assistance fees mentioned below. Of course that will not happen, but one suspects that they are looking at a substantial number of the relevant firms signing up. A base income in the hundreds of thousands of pounds would (a) greatly reward the Directors and staff for the prescience and (b) guarantee, one assumes, a top level service.

 

Esto too will be paid a fee under Legal Advice and Assistance, if the client is eligible, for each attendance, as per their contract. That too has the potential for squabbling where an Advice and Assistance fee might be subsumed into the full Criminal Leal Aid fee. In addition, if ABWOR (Assistance By Way of Representation) is required by the Client Firm, how would a prior grant of Advice and Assistance cover in respect of Esto Law affect that?

 

It is here that we come back to the crux of the issue. It would not be unreasonable to assume that these practical issues have been discussed, whether in the context of the new venture or generally, with SLAB. If this was taking place when the Directors of Esto Law were wearing their Law Society Negotiating hats, then that might appear to some to suggest a conflict of interest.

 

It might simply be that these men, with their great understanding of the Criminal Legal Aid landscape post-Cadder, have seen the way in which an innovation can (a) help the hard pressed practitioner and (b) make them some money. What, one might ask, is wrong with that? Surely innovation and novel ways of dealing with new problems should be welcomed?

 

The answer may be nothing, but as more than one commentator has said today, as well as doing the right thing, it is important in law to be seen to be doing the right thing. Now that, as mentioned, the GBA for example have raised specific questions, I would not propose to trouble John Scott for example with queries arising from this blog, but, as I mentioned at the start, I am happy to be corrected if guilty of any misunderstandings.

 

In one view, this is a business launch to match the creation of New Coke – a dramatic change which sickened the propective customers.

The Coming Bonfire – Lessons from Guy Fawkes for the Scottish Legal Profession?

 

 

Austin Lafferty, Vice President of the Law Society of Scotland, and Walter Semple, Law Society Council member, last week used the electronic pages of The Firm to discuss the coming “ABS tsunami”.

The highly esteemed gentlemen fail to see eye to eye on the role of the Society in how the profession got to this point, but each acknowledges the struggles which lie ahead, with Mr Lafferty bluntly saying “the core workstreams of many firms will be decimated, with obvious consequences.”

Conveniently for the days after 5^th November, the blogger Guido Fawkes, normally one for hot-off-the-press political gossip, has written a piece about the role of the investment banks in the global financial crash, prompted by his having read the excellent and chilling “The Big Short” by Michael Lewis. Anyone wanting to understand the limitless greed and stupidity which brought the financial world to a halt should read Mr Lewis’ book.

Dealing with investment bankers, Guido, as a former investment banker himself, points out when the rot set in at the major institutions. He describes one of the problems as the fact “that investment banks were no longer partnerships; they were publicly listed companies, with shareholders who were not involved in day-to-day management. This has proved to be a disastrous form of capitalism, with owners who don’t know what the managers of their money are doing.”

Investment banking, till the early 1980’s, was carried out by partnerships made up of investment bankers. The capital in the firms, and the risks, were both the responsibility of the partners. As Guido says “the oldest and most experienced partners tended to have the most capital in the firm. This had a risk management effect greater than any Nobel Prize winning computer-calculated risk model, the old guy with the grey hair stood to lose everything when some testosterone charged 27 year-old trader bet the firm’s capital … The bosses’ desire to keep their retirement pots concentrated their minds”.

Stock market listing, and external ownership, such as that brought in by the Big Bang during the Thatcher years lead to a situation where the providers of the capital, and therefore those bearing the risk, were no longer in any control of that risk. Is it a coincidence that Collateralised Debt Obligations and the rest of the alphabet soup which made up the speculative “investments” at the root of the crash were financial instruments dreamed up by the corporate whizz kids on massive salaries, but who stood only to lose their jobs if they got it wrong, rather than everything they owned?

As Guido says “There is nothing moral in asymmetric markets where the risks are borne by others than those taking the risks.”

The Scottish legal profession faces an imminent and huge upheaval. As Mr Lafferty says, “The threat…is that the high street legal market will get hoovered up like the high street optical market has been, in which 80 per cent of the trade is owned by a tiny number of brand names.” As a profession, solicitors “need to be sales-savvy, market-alert, entrepreneurial” to avoid “having to watch as companies with increasingly bizarre names and brands try to elbow their less-qualified way into the market place. “

Mr Semple, expressing a concern going further than merely commercial and marketing matters, warns that “(The Law Society has) been presiding over a potential catastrophe for many solicitors in Scotland which was entirely avoidable. … The changes in the Legal Services legislation now require solicitors to act independently (rather than be independent)…This change will compromise the independence of solicitors who offer services to the public. External owners of legal service providers will not be directly bound by solicitors’ ethics. They will be motivated only by commercial interests.” (Emphasis added.)

I have no doubt that investment bankers, in the old days, were as a rule, as professional and ethical as solicitors. However, the passage of time, and the loosening of the direct connection between capital and risk, allowed corners to be cut, and edges to be shaved, all in the interest of profit. The creators of the wacky financial “instruments” described by Mr Lewis were not unethical either. But, as I mentioned above, is it coincidental that they were only created once the capital/risk link was broken, or at best severely stretched? Financial backers will want a dividend on their money – we are in a capitalist society after all, and pressures will inevitably increase on legal businesses under ABS to provide a good return on their investors’ capital. Over time, as with the investment banks, things are likely to slip.

Even although the ABS model to be applied here is not (yet) full flotation, the twin risks identified by Messrs Semple and Fawkes place the profession at great risk. The “liberalisation” of the financial markets too was intended to allow greater competition, and permit the investment banks to act outwith the hidebound old rules, whilst of course remaining true to their ethics, thus allowing them to increase their profitability, both for the banks themselves and their investors and backers. We can see, laid out in Mr Lewis’ book, and indeed on the news daily, where that led to.

Self-interest is a necessary human trait, and who could fault a partner at a big practice who sees the possibility of their business floating, with a huge windfall for the people lucky enough to be owners when the music stops? It seems inevitable that, as time progresses, the restrictions in place in the imminent ABS structure will fall away, as they are seen as being “anti-competitive” or still as leaving legal businesses at a “financial disadvantage” in raising capital, as compared with other professions. Full flotation will come in due time, even though there are probably only a handful of firms where, in reality, this will have any substantial direct effect. It is unlikely that, for example, even the best High Street one-man criminal practice will be able to have an IPO!

Mr Lafferty refers to the “ABS tsunami”. As we have tragically seen in real life, if a tsunami is already on its way towards you, then there is nothing which will stop it.

 

Do the Dead Have Human Rights?

The Firm Magazine reported this week  that Grampian Fire and Rescue Service (GFRS)has refused to release incident reports to the next of kin of a man killed in a vehicle fire because doing so would breach the dead man’s “continued right to privacy.”

The article quoted Peter Murray, Assistant Chief Fire Officer as saying: “to disclose the information contained within the Grampian Fire and Rescue Service and into the public domain would breach that right” (being the right under Article 8 of the European Convention on Human Rights (ECHR) to respect for private and family life).

The GFRS is also reported as saying that “disclosure of an incident report would be likely to have a significantly disruptive effect on the way in which Grampian Fire and Rescue Service conducts its business.”

The details of the request and the subsequent actions of the GFRS can be seen in the article, but I thought I could offer some thoughts on the principle invoked.

Traditionally in Scots Law the dead have no rights, their property rights, for example, passing on death in accordance with the law of succession, or under valid will. This is a reason why wills for married couples usually include a “common calamity” clause dealing with the tragedy of both being killed in the same incident. If not for such a clause, a determination as to which one dies first could make a substantial difference to where the deceaseds’ estates end up.

Indeed, in Stair’s Institutions, (1^st edition) at page 600, the learned writer refers to the Law of the Death-bed, whereby changes of wills or dispositions of property made on the death-bed were treated as invalid. In Stair’s view, some of a person’s rights were taken away even prior to death.

The reason stated for this, and we must remember that this was written in 1681, was “for the quiet and security of dying persons against the importunity of husbands, wives, children and other relations; and particularly against the importunity of Romish priests”. The latter were accused of persuading those on their death bed to give their assets to the Church, in return for promises of graces in Heaven, to the deprivation of their families. It must be remembered that in 1681, the Roman Catholic Church was rather unpopular, to say the least, in Scotland!

Beyond doubt however, the dead had no rights in Scots Law.

It is well known that the dead cannot be defamed in law. While de mortuis nihil nisi bonum is a fair maxim to live by, in a legal sense it can be ignored with impunity. Speaking ill of the dead has no legal consequences, at least as far as the dead are concerned.

The ECHR, and especially its direct incorporation into Scots Law by the Scotland Act, have greatly expanded debate about “human rights”.

For example, it is now clear that you don’t need to be a live person, but can be a “live” limited company, and have “human” rights. The insurance companies who challenged the Damages (Asbestos-related Conditions) (Scotland) Act 2009 as being in breach of their “human” rights were not prevented from doing so just because they were not flesh and blood. The judgment in the case of AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents)  is awaited eagerly (on the basis I will get a blog post out of it). That case, clearly shows that insurance companies, for example, have “human rights”.

It is interesting that the GFRS make reference to Article 8. It runs as follows:-

“Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

While there is a variety of jurisprudence regarding the start of “human rights” in connection with unborn children, I am not aware of case law regarding the end of human rights.

The European Court has refused to set down an absolute determination of the position as to when human rights commence and therefore it is not a surprise that there is no authority for the continuation of such rights after death.

Adam Rosenblatt wrote an excellent essay, published in Human Rights Quarterly 32 (2010) 922–951 looking at the question of human rights for the dead. The essay looks at this in the context of forensic examinations of bodies exhumed from mass graves. I would commend the whole piece to readers. It is thoughtful and thought-provoking.

Mr Rosenblatt comments that “The rights of the dead and our duties to them do figure prominently in religious, philosophical, and literary texts, from the various Egyptian books of the dead to Sophocles’ Antigone to Kant’s Metaphysics of Morals.” Whilst his focus is upon the rights of the dead body as opposed to the person, there is relevance in his study to the question posed above. He quotes the philosopher Thomas Nagel as giving the opposite of his task “When a man dies we are left with his corpse, and while a corpse can suffer the kind of mishap that may occur to an article of furniture, it is not a suitable object for pity. The man, however, is.”

Mr Rosenblatt refers to the concepts of agency and dignity as being fundamental to the consideration of “human rights” and emphasises that the Universal Declaration of Human Rights is founded very much on these pillars. He explains the concept far better than I can, but by way of shorthand, “agency “ refers to the person actually doing. Is there “participation” by the dead in any meaningful way?

As regards “dignity” at first sight this seems a straight forward concept, and one where it could more easily be thought that there can be an extension of existing rights to cover the dead. However, the concept of “dignity” is not easily measurable nor immediately visible. The Universal Declaration of Human Rights refers to all members of the “human family” as having inherent dignity. Does a dead person retain their status as a member of the human family on death, and where is the “inherent” dignity seated?

He considers the historian and activist Antoon De Baets whose theory is that the living have responsibilities to the dead, rather than the dead having rights. That analysis seems very attractive, especially as it does not require us to consider that the apparent change in the law as viewed by GFRS  has been innovated without the consideration of Parliament. No-one in the Scotland Act debates was discussing the rights of the dead, yet if the GFRS position is accepted, then a huge new strata of rights had been created, pulled figuratively out of a European hat!

Mr Rosenblatt concludes slightly differently, noting that “The dead are often treated with respect and consideration, but they do not have inherent dignity. Thus … they cannot have human rights in the universal, inalienable sense that forms the moral core of every major human rights declaration and instrument.” Philosophically he views it as very hard to justify the dead having human rights.

If GFRS is correct in its stance, does this remain the case till the end of time, or is there a point when the rights expire? After all, confidential Government documents are released after 30 years, in most cases, and census details after 100 years. Do GFRS see this right as never-ending?

In any event, who is to vindicate the rights of the dead man, should it be thought that these rights exist and have been breached? If a person dies whilst party to a court action, then their executor can continue to pursue or defend the case in their capacity as executor. However, the deceased person is outwith the reach of the courts at that stage. Would the GFRS position require a fundamental review of the procedure used in such cases?

It would be interesting if GFRS would be willing to explain the basis for its ground breaking extension of human rights to dead people! However, I suspect that they will say that it would be a breach of the deceased’s human rights to release their legal advice on the question!