The #SAVEUKJUSTICE demonstration outside the Ministry of Justice yesterday was well attended. Coverage of the event has been extensive and well dealt with in the law blogs
A few observations….
The unified stance taken by the Bar and Law Society has been a remarkable feature of the campaign. Leading lights from the legal profession have given time and thought to putting the message across through blogs and on twitter. Many bloggers have written on the subject. Patrick Torsney has a comprehensive listing of blogs written by lawyers and others from the legal blogging community.
Unfortunately, the extensive use of the #SAVEUKJUSTICE hashtag on Twitter served to irritate some, including lawyers, and the PR was almost certainly not sufficiently directed to the issue of fairness – at times, the message seemed to focus on how little the lawyers were being paid which is not a message likely to receive sympathy from some members of the public.
The petition, as of today, stands at a remarkable 79,000. But there are many thousands more lawyers – so it should have been relatively straightforward to get the 100,000 signatures needed to persuade Parliament to debate The Lord Chancellor’s plans? On the assumption that many thousands of signatories to the petition would have come from non-lawyer members of the public through publicity being generated by lawyers on Twitter – and, importantly, Stephen Fry, Bianca Jagger and other ‘celebrities’ who punted the petition actively, pleasingly – it must follow that a good 40,000+ lawyers did not sign the petition.
I have spoken to quite a few commercial and City lawyers recently. Some said, predictably, that they were not really aware of the issues and did not use twitter. A couple took a more hostile line and felt that the message of the criminal lawyers was wrong and too oriented to their own jobs and not the interests of the public. Others have said – and I agree with this latter stance – the message could have been addressed more to the needs of the people and the importance of preserving the Rule of Law rather than ‘profession oriented’. The message was not clear enough, they argued: There was a ‘whiff of’ loss of law jobs with the reduction from 1600 to 400 firms which may have given the impression that this reduction was more important than justice itself.
Certainly, I saw quite a few tweets along the lines of ‘Lawyers have been keeping access to justice exclusive with high fees for years’
I am not a practitioner. I am a mildy reclusive observer. But I do believe that the criminal barristers and solicitors are right. The Rule of Law will be compromised by Grayling’s reforms and I do believe that these criminal lawyers, the majority of whom do not get that well paid – less than £50k a year I have seen quoted – are regarding the profession as vocational rather than commercial.
The City and large commercial law firms turn over billions. Their lawyers are well paid – very well paid. A newly qualified lawyer at a ‘Magic Circle’ firm starts at £63,000+. So what? They run commercial businesses. Their clients are men and women of commerce, large corporations, banks, in a global legal market. A cynic might observe – and I am a cynic at times – that commercial and City lawyers are more interested in the ‘Certainty of Law’ rather than the Rule of Law. I once heard a senior commercial lawyer say that “Contract law is not about ‘Justice’. We want certainty so that we can advise clients to avoid well established legal pitfalls and operate at the lawful edge of the legal envelope.”
I also heard words to the effect “Any bloody idiot can tell a client what they cannot do . We don’t want bloody idiots. We want good lawyers who can tell the client what they can do within the law as it is set down by Parliament. “
The City / Commercial firm practice is a different world – but it is not a world paid for by taxpayers. Of course, the City and commercial firms benefit from the reputation of our legal system and ‘Rule of Law’. As a friend of mine @taxbod observed bluntly on twitter only t’other night – “But yet, any of those civil/commercial flog the British justice system when whoring to Russian chavs etc.” Sometimes… blunt… is good.
Legal Aid is paid for by tax payers, most legal aid lawyers are not well paid. A legal system where people are not given a fair hearing – because they cannot afford lawyers, civil and criminal – is not a fair legal system
That being said – congratulations to all – lawyers and non-lawyers alike – for a good campaign. The Ministry of Justice seems to have won the mainstream media PR war with their coverage in The Daily Mail yesterday:
£15m for just one firm on legal aid gravy train Scale of taxpayers’ bill revealed as Coalition vows to save £200m
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Ministry of Justice released a breakdown of payments to lawyers
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Justice Secretary Chris Grayling says system is ‘not sustainable’
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Demonstrators waved placards reading ‘justice is not for sale’
But the campaign is not over. Surely it is not beyond the realms of possibility to get over 100,000 signatures? Even if lawyers have to get on the phone to non-criminal law lawyers?
And lawyer or non-lawyer, if you would like to sign the petition – you may do so here
And… you can keep up to date with developments by following @TheCriminalBar on twitter
A selection of links:
The Criminal Bar Association: Do read the Monday Message 03.06.13 – some real gems in there.
Obiter J : Some responses to MoJ consultation on Transforming legal aid
Legal Cheek: LAWYERS PROVE THEY CAN PULL OFF A DEMO – AS BRITAIN DISCUSSES #PUBLICW*NKINGONYOUTUBE
The Legal Cheek post includes some marvellous pictures and recordings of speeches by Carl Gardner, author of the Head of Legal Blog.
Head of Legal: Geoffrey Robertson QC: there is a hidden agenda
Head of Legal: Michael Fordham QC: the avocado of justice
Michael Fordham QC was I think the star of today’s “Saving Justice” demo outside the Ministry of Justice. His speech was both angry and funny – he called the Ministry of Justice “wankers”. And his avocado of justice, odd as it sounds, went down a storm with his audience.
The Bar Council: Bar Council responds to Legal Aid consultation
Circuit Judges: Critique of the proposals from the Judiciary
The Law Society: Law Society responds to legal aid consultation
Storify of the SaveUKJustice demonstration 4th June 2013
And…as Legal Cheek noted: AS MOJ CONSULTATION ON LEGAL AID CLOSES, THE UK CRIMINAL JUSTICE SYSTEM IS PLACED ON EBAY
Infographic by Leigh Day
Report #26: Direct Access to barristers and the changing face of legal practice
Posted: June 3, 2013 in Charon Tour, ReportsReport #26: Direct Access to barristers and the changing face of legal practice
Today I am talking to Jonathan Maskew and Bruce Webster, of myBarrister about the firm and the concept and practice of Direct Access to barristers.
”myBARRISTER is a new online service that gives people and businesses direct access to the specialised skills of barristers, helping them resolve legal issues, defend against prosecution, take legal action or simply providing specialist legal advice on a particular situation.”
The podcast covers:
The start up and challenge
Overview of myBARRISTER
The Brand
Aim of the Business
Direct access , the potential and online offering for client choice
What our business does
Views on the prospects for the profession moving forward
Report #25: The role of Information technology in modern legal practice
Posted: May 30, 2013 in Reports, The Roving Reporters
Yesterday I talked with Charles Christian, Editor in Chief of Legal IT Insider (both available online and in print), about the role of technology in the practice of law and the information tools used by lawyers in the modern era.
We looked at:
1. The consumerisation of legal software – why Facebook is so easy yet MS Word so difficult when it comes to training
2. Asked why don’t legal publishers adopt the iTunes approach to content – you buy the chapter you want, boot the 19 chapters you’ll never need
3. The use of social media
4. The gamification in continuing education and training, making it more fun to learn
(We had bad signal issues on Skype yesterday so in parts the sound broke up briefly. Beyond my control unfortunately)
Report #24: McAlpine v. Bercow and a New Era of ‘Twitter Chill’
Posted: May 28, 2013 in Charon Tour, Reports, The Roving ReportersMcAlpine v. Bercow and a New Era of ‘Twitter Chill’
Antonin I. Pribetic, B.A. (Hons.), J.D., LL.M., FCIArb.
Litigation Counsel
Steinberg Morton Hope & Israel LLP, Canada
Author: the Trial Warrior blog
The decision of Mr Justice Tugendhat in McAlpine v Bercow [2013] EWHC 1342 (QB) (24 May 2013) [“McAlpine”] is a stern admonition to Twitter users about the perils of practising comedy without a license.
Seriously, in my view, the UK court’s judgment will have a chilling effect on free speech on Twitter and will likely devolve into an era of social media self-censorship for Twitter users, particularly in the UK. A form of libel chill, or, perhaps “Twitter Chill”.
It also highlights the legal chasm that exists between the American and UK judicial approaches to balancing freedom of expression and protecting reputation. The decision also raises the spectre of a “popularity metric” to determine whether the alleged maker or republisher of the defamatory tweet has gazillions of followers or is just some shlub with 4 followers, three of which are porn bots.
I wrote about the scandal involving British peer, Lord McAlpine who threatened to sue the BBC, ITV and thousands of Twitter users over false accusations of pedophilia in a post entitled: Lord McAlpine and Twitter Libel: Does failing to sue when a libel is first published raise a defence of waiver, estoppel or acquiescence? In the post I posited:
“Recall that Lord McAlpine also has threatened a libel action against anyone who tweeted or retweeted (RT’ed) the BBC Newsnight program, ITV broadcast, or the tweets by British celebrities such as Sally Bercow, the wife of the Speaker of the Commons, and George Monbiot, a columnist for the Guardian.
There are stories circulating on various blogs and on Twitter referring to similar, if not identical, allegations made against Lord McAlpine back in the 90’s by a now defunct British magazine and a well-known British writer and public speaker with a penchant for conspiracy theories. [note: I am deliberately not providing links to the articles in fairness to my UK readers. If you really want to know more, then Google it yourself].
Some have asked, perhaps rhetorically, why Lord McAlpine did not sue anyone before when these allegations, now established to be false, were made?
My question is: Does failing to sue when a libel is first published raise a defence of waiver, estoppel or acquiescence? “
Reading Mr. Justice Tugendhut’s decision, it is obvious no one bothered to address my brilliant insights.
In any event, the upshot of the McAlpine decision is that innuendo is sufficient to attract liability for defamatory statements, even where the individual does not link or endorse the original source of the defamatory statements.
In this case, Tugendhut J. found that many of Bercow’s Twitter followers shared her interest in current affairs and would have been familiar with the Newsnight story.
The learned judge further held that Bercow’s inclusion of the phrase *innocent face* told readers that she was being “insincere and ironical”; she was not asking a simple question as argued by her counsel. Accordingly, the UK court held that it was reasonable to infer that she meant Lord McAlpine was “trending because he fits the description of the unnamed abuser”.
Therefore, by process of implication, there was repetition of the accusations of sexual abuse broadcast on Newsnight. Following the UK’s ”repetition rule”, Bercow, admittedly a celebrity of some sort, is to be treated as if she had made the original allegations herself, but with the addition of Lord McAlpine’s name.
Aye, there’s the rub which rubs me the wrong way.
With all due respect, the learned judge’s logic is tortuous. It attempts to connect dots on a map to a treasure buried under a sea of improbability.
Tugendhut J. surmises,
84. In my judgment the reasonable reader would understand the words “innocent face” as being insincere and ironical. There is no sensible reason for including those words in the Tweet if they are to be taken as meaning that the Defendant simply wants to know the answer to a factual question.
Ask yourself this question: what would have happened if Bercow did not add the phrase “innocent face”?
Frankly, I’ve been on Twitter for over 4 years and I never got the “facial innocence” memo and would not have made the connection. That said, the following sums up the UK court’s analysis :
***1. Newspaper incorrectly identifies a public figure as a pedophile ;
2. Thousands of individuals post links to the story on blogs, Twitter and who knows where else;
3. The public figure’s name starts trending on Twitter (presumably in the UK only, but for argument’s sake, let’s say it trends worldwide);
4. Thousands of private individuals, many anonymous, follow a celebrity and see his or her tweets and are compelled to follow the trail of bread crumbs. Actually, all they have to do is to do a search of the Twitter hashtag;
5. Since the celebrity’s Twitter reach is extensive due to a large number of followers, the result is that the celebrity is liable for republication of the libel.
Does anyone else see the gap in logic here? Whether Bercow has 65,000 followers or 6,500,000 or only 6 followers does not proveanyone actually read her tweets or further investigated the story.
Bercow did not say: “Lord McAlpine is a pedophile”, which is, of course, a falsehood and unequivocally defamatory.
She also did not say: “Dear Followers, here is a link to the reports of the Newsnight story.”
The BBC UK reports:
In a statement, Mrs Bercow responded: “I will accept the ruling as the end of the matter. I remain sorry for the distress I have caused Lord McAlpine and I repeat my apologies.
“I did not tweet this with malice, and I did not intend to libel Lord McAlpine. I was being conversational and mischievous, as was so often my style on Twitter.”
She went on: “I very much regret my tweet, and I promptly apologised publicly and privately to Lord McAlpine for the distress I caused him. I also made two offers of compensation.
“Lord McAlpine issued proceedings and the last few months have been a nightmare. I am sure he has found it as stressful as I have. Litigation is not a pleasant experience for anyone.”
Mrs Bercow said she had learned her lesson “the hard way”, adding that the ruling should be seen as “a warning to all social media users” because comments could sometimes be “held to be seriously defamatory, even when you do not intend them to be defamatory and do not make any express accusation”.
The tort of defamation, a strict liability tort in common law, deals with recovery for reputational harm, without need to prove the defendant’s fault. As such, damages are presumed. It appears that the impugned tweet was not libel per se, but rather libel per quod, which requires extrinsic evidence such as inducement or innuendo.
Ultimately, Bercow’s tweet was ill-advised, but to conclude that anyone who read the tweet was induced into believing what Twitter itself, through its trending algorithm, perceived as “popular” or “informative” or “newsworthy” implies that trending somehow cloaks the content as “true”. Of course, it’s not. It’s just Twitter.
The UK’s piecemeal, haphazard approach to libel reform notwithstanding, unless free speech is constitutionalized to reflect a semblance of the U.S. First Amendment, then many are 140 characters away from an expensive libel claim lawsuit. Oh yeah, I forgot. Britain does not have a written constitution. Nevermind.
Well, how about imposing an actual malice requirement for public officials and public figures? Most are familiar with Supreme Court’s 1964 decision of New York Times v. Sullivan, 376 U.S. 254 (1964), which held that a public official could only prevail in a defamation action if the public official proves that the defendant either knew that the statement was false or recklessly disregarded whether the communication was false, a fault standard known as “actual malice.” Without constitutional constraints, free speech is an illusion. I sympathize with Lord McAlpine. The false accusation was egregious. However, he has settled with a number of large media outlets and the subsequent coverage has repaired any damage, however, significant, albeit transitory.
In the end, Twitter is ephemeral. If you don’t believe me, just try to search for one of your tweets from a few months ago. Good luck with that. In the meantime, how to best strike a fair balance between freedom of speech and protection of reputation remains elusive. The McAlpine decision adds nothing to the free speech/reputation calculus.
As a postscript, the Birmingham Post reports that Bercow has settled with Lord McAlpine, however, “The amount of damages was not disclosed”.
Corrigendum:
As pointed out by Jon Baines on the Twitter: @bainesy1969:
Hugh Tomlinson, Q.C. over at Inforrm’s Blog adds:
In the circumstances, a reader who knew the background – the “Newsnight” broadcast, the media reports and Lord McAlpine’s status as a “Conservative politician from the Thatcher years” – might well have inferred that the Tweet meant: “Lord McAlpine is trending on Twitter because he is the child abuser is the subject of the Newsnight report“. In other words, such a reader might well have understood the words as conveying a serious defamatory imputation.
…
It difficult to see how, in this case, a reader of the Tweet who had, for example, paid no attention to the media between 2 and 4 November 2012 could possibly have understood the tweet as making a defamatory allegation against the claimant. The question of the absence of an “alternative explanation” mentioned by the Judge ([85]) cannot assist on this point: the reader who had paid no attention to the media would simply not understand what the tweet was about. It would doubtless come across as another, unfathomable, twitter “in-joke”.”
Related articles
- You: Sally Bercow tweet libelled Lord McAlpine, high court rules(guardian.co.uk)
- Sally Bercow settles after Twitter libel defeat (yorkshirepost.co.uk)
- Sally Bercow settles libel action with Lord McAlpine after High Court finds tweet was defamatory (dailyrecord.co.uk)
- Court rules against Sally Bercow over her ‘innocent face’ McAlpine tweet(telegraph.co.uk)
- Bercow’s McAlpine tweet libellous (bbc.co.uk)
- Twitter users should learn lessons from Sally Bercow’s libellous tweet(guardian.co.uk)
- High Court to rule on Sally Bercow tweet about Lord McAlpine(standard.co.uk)
- Twitter libel: Sally Bercow’s tweet about Lord McAlpine ruled libellous(independent.co.uk)
- Sally Bercow Twitter libel: Tweet about Lord McAlpine ruled defamatory(independent.co.uk)
Report #23: Jerry Hayes on the Lord Chancellor’s Legal Aid reforms – a sardonic commentary
Posted: May 25, 2013 in Reports, The Roving Reporters
Today I am talking with Jerry Hayes a former Tory MP and practising barrister about the purpose and likely impact of the cuts to legal aid being proposed by Chris Grayling, the Lord Chancellor and Secretary of State for Justice.
Much has been written about the legal reforms in the dead tree press and the law blogs.(Patrick Torsney has a comprehensive listing of blogs written by lawyers and others from the legal blogging community. )
We discuss the need for the protest by lawyers outside parliament and the likely impact on society in terms of access to justice. It is not about ‘lawyer fatcattery’ – the proposals being put forward by the Lord Chancellor will impact on many in our society in terms of a fair trial and access to good legal representation – and they will, directly or indirectly, affect us all – not least in terms of the ‘Rule of Law’ so lovingly used by the prime minister, foreign secretary and other senior ministers when promoting Britain overseas or lecturing despotic governments abroad.
Jerry Hayes is a former Tory MP who knows the back benches of the Tory party and its workings well. Jerry is also a practising barrister. He is not shy in putting his robust views on Chris Grayling’s reforms – nor is he shy in coming forward to comment sardonically.
Please listen to the podcast – lawyer or non-lawyer. There is a serious message here – but there is also fairly ribald ‘analysis’. It was a most enjoyable podcast to do.
***
PLEASE SIGN the petition so that Mr Grayling has to answer before Parliament for his ill conceived reform plans.
>>>>Sign the petition – please, if you haven’t already.
The verdict is in: FailingGrayling LC guilty of attempted murder of Legal Aid
Report #22: The trials and tribulations of applying for pupillage at the Bar?
Posted: May 10, 2013 in Charon Tour, Reports
Some say that there is only a one in eight chance of a Bar student getting through to practice with a tenancy at present. It doesn’t seem to be a good time to contemplate a career at the Bar. Senior members of the Bar have expressed concern at the numbers of aspiring barristers being churned out by the law schools and that the Bar will become less diverse with only the middle class candidates, backed with family money presumably, able to contemplate a career at the Bar.
So what is it about the Bar that attracted a 42 year old ex-army tank commander – a non-commissioned officer with no A levels – to go to university after leaving the army, securing a First class degree in English Literature and Contemporary History from York St John University and a Very Competent in what was then the Bar Vocational Course, and apply for a pupillage at the Bar?
Well… I am about to find out. As part of my 12-18 month tour of the United Kingdom to see how law is practised in different parts of the country and what people think about our legal system, today I am talking to Craig Lowe.
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Report #21: Podcast with Michael Turner QC, Chairman of The Criminal Bar Association, on the legal aid reforms
Posted: April 30, 2013 in Charon Tour
To set the context, I quote from an article in The Express:
“High Street solicitors could be forced to close by Government legal aid changes
MORE than 1,500 High Street solicitors will be forced to close branches “within a year” if the Government’s controversial legal aid reform plans succeed.The loss of High Street solicitors would also have a severe impact on barristers. Michael Turner QC, head of the Criminal Bar Association, warned: “Our barristers’ system will fail. Our brilliant judiciary comes from the Bar. Once you have Tesco and G4S providing advocates, you will get Tesco and G4S judges in 10 years’ time. Make no bones about it, we are facing absolute devastation to what is the finest legal system in the world.”
He rejected claims that Britain’s legal aid was the most expensive in Europe. “You have a different system there, with investigative magistrates who interview witnesses, and the big cost is the judicial spend.”…..
Access to justice in a civilised society is fundamental to the Rule of Law and the rights enshrined in our Human Rights laws to a fair trial.
The Independent covers the theme:
New legal aid reforms end ‘justice for all’, lawyers warn
England’s 800-year-old tradition of fair and open access to justice for all will be destroyed by sweeping Government plans to reform criminal legal aid, senior judges and magistrates warn today.
In an attempt to save £200 million by 2018, the Justice Secretary Chris Grayling plans to stop paying solicitors for the work they do – and instead give them a fixed fee for each case they represent.
Lawyers will be incentivised to recommend guilty pleas to their clients, a coalition of judges, magistrates and civil liberties groups warns. Their fears are backed by the Criminal Cases Review Commission, which investigates miscarriages of justice on behalf of the Government.
Criminal suspects will lose their rights to choose or dismiss a solicitor, and the number of accredited legal aid firms will drop from 1,600 to less than 400 – raising the possibility that hundreds of small high street firms could be replaced by huge contractors like G4S.
“The Government is creating a system where potentially the same company could defend you, lock you up in prison and then rehabilitate you when you come out,” said one judicial source……”
Under plans to save £200m solicitors will be paid fixed fees, with contracts going to firms like G4S
Interestingly, two well regarded judges have commented on the issue…
The current President of the Supreme Court, Lord Neuberger of Abbotsbury, is understood to have deep reservations about Mr Grayling’s plan. Sources suggest that he believes it undermines the right – first enshrined in the Magna Carta – that “to no man shall we deny justice”.
The former Lord Chief Justice Lord Woolf told The Independent on Sunday that the proposals would lead to a “factory of mass-produced justice” and miscarriages of justice.
“It is the complete privatisation of justice.”
Michal Turner QC has robust views on the proposed reforms which will have a considerable impact on access to justice, the profession, the public and have a devastating effect on the very cornerstone of our democracy.
***
Some useful links:
The Independent: New legal aid reforms end ‘justice for all’, lawyers warn
Barrister 999: Legal Aid – some thoughts
Criminal Bar Association: PRICE COMPETITIVE TENDERING. A SOLICITOR’S VIEW FROM THE HIGH STREET
Crimsolicitor: The right to choose…
(Sorry about the minor technical recording difficulty at the beginning of the podcast – thankfully we only lost the introduction – and a very brief summary of the Ministry of Justice proposals which are linked above under the links section. We also had the sound of crockery being laid out in an adjoining room – which accounts for a very brief pause in recording eight minutes in!
Michael Turner gave me a short history of the Garden Court Chambers building and an excellent tour. Fascinating.
Please spread the word about this podcast – #SaveUKJustice)
Report #20: Iain Gould, Solicitor, on actions against the Police
Posted: April 18, 2013 in Charon Tour, The Roving Reporters
TourLawcast 15
The Police and the Crown Prosecution Service play a pivotal part in the criminal justice system – but, what happens when the Police break the rules or are negligent?
Solicitor Iain Gould has built up specialist expertise in the field of actions against the police and shares his thoughts and experience in this podcast
Charon QC's UK Law Tour 