Tuesday, 30 November 2010

Garrow's Law (or the confession of an ex-lecturer)

A confession is due. Not a confession relating to any recent allegations of a legal nature but one of utilising one's time usefully.

Many of you may have presumed that the writer of this blog is a profligate consumer of philosophical and historical tracts and partial to endless volumes of bedtime caselaw. There is a whisker of truth in this, the sort of whisker you might find floating on the delicately sculpted ivory of a Guinness pulled freshly at The Face is Altered on Kilburn High Road.

That vile contraption

Back to the confession. This writer is a television addict. It is simply irresistible. More so with a roaring log fire acting as sentry over a pair of toasted anti-feet frayers, guarding against the scythe-like talons of a grasping, crystalline pre-winter-winter. What isn't addictive is the cacophonous corporate coprophagia that blitzkrieg-like is the hallmark 'independent' television programming. Thus nightly, almost instinctively, one of the BBC channels is selected, very nearly depriving the uninvited potion-peddlars a single nanosecond to commit their aural sensory assault. Concomitantly, if commercial channels are selected, the malignancy of electronic hawking can be mitigated to an almost bearable degree with the liberal application of the electric cordless channel-changer.

Garrow's Law

With luck 'Strictly' - as it's affectionately deferred to by those who speak of it with a gravity usually reserved for royal funerals or paedophile rings (do they like their fungi-based counterparts grow on lawns in early Autumn) - failed to plaster itself all over the LCD screen. This programme has a particular mucousity and a fatality that will like a glue-sniffers favourite bag and the sole of a child's shoe, attach itself shit-like to that thing known as the 'national psyche'. Yet against all these odds, a "televisual feast" of the most Cribbenesque order manifested itself. The programme referred to m'lud is one Garrow's Law.

There is was a time when only the rich could afford legal counsel... 
William Garrow - responsible for the adversarial system and the phrase "innocent until proven guilty"... except for libel which is the other way round

Now in general, the only law that this writer has recourse to is that of a chap called Murphy. But like many raised on a lunchtime diet of Crown Court in the 1970s, is fairly partial to programmes that focus on the courtroom. For the general viewer, whose lifetime experience of the law is confined to paying a parking fine on the last possible day prior to having to cough up the full sum, they can catch a glimpse of the idealised and screen-friendly, be-wigged doer of all things customary and upholder of civil society and ultimately capitalist power relations. In one hour or so the legal machinery, with all its intricacies and triumphs, is laid bare for all to see. In reality the machinery is full of flaws and can be extraordinarily slow and of course spankingly expensive.

Corruption galore!

Of  late and of necessity, this writer has become partial to a bit of the more serious stuff; the cocaine of courtroom drama - Kavanagh QC. It's a John Thaw thing. Garrow's Law is a little different. This particular episode pressed all the right buttons: a protest, profligacy, a Charity, the change of a Charter, the authorship and distribution of alleged libels, special favours and disbursements for placemen, allegations of criminal libel made to cover gross abuses of power and frauds, the misspending of charitable monies, the lining of pockets of favoured Directors and Governors... it was quite a substantive list and it was dizzying. The series pits a young Johnny-come-lately 18th century barrister, with levelling ideals emblazoned on his robes, against a system weighted in the favour of the powers-that-be: a corrupt and nepotistic establishment and institutions. Say no more.

The Sweeny - had lots of boozing and gratuitous
violence... it also had it's bad points
How a complaint brought down opprobrium from above

For those of you who are already bored, it's worth persevering as Sunday's broadcast was interesting on several levels. Firstly, it highlighted the manner in which the establishment and leading establishment figures sought to connive and machinate in order to destroy Garrow. They despised him as both an outsider (due to his heritage) and because he threatened the status quo; a constant thorn in the side of 'business as usual'. Moreover, each episode is based on an historical case. Sunday night's episode centred on the real-life trial of one Captain Thomas Baillie who was the Lieutenant Governor of the Royal Hospital of Greenwich a retirement home for former sailors. The episode began with a demonstration by former seamen against the food and conditions in the home that was run as a charity. The trial centred on an allegation of libel against Baillie who had represented the seamen's grievances in their appalling condition. Now always one for a bit of reading, this writer decided to undertake a little investigative work and it would appear that the case of Captain Baillie, attributed to Garrow, was in fact defended by four lawyers including a young and junior Thomas Erskine.

The Courts - a weapon of the wealthy and powerful

Thomas Baillie was indicted on the basis of a libel he was said to have committed against several high profile figures of the day and of a particular institution through the dissemination of a "book": in reality a list of complaints. The Hospital was run specifically for disabled seamen. According to its Charter, no Landmen could be admitted. Baillie's duty with others was to "watch over the internal economy of this sacred charity" in order to ensure that "the ample revenues appropriated from this generous nation to their support, are not perverted or misappropriated."(1)

The grey-haired gentleman who dresses to the left
A vile libellor?

What was this libel? Baillie ventured in the words of Erskine  "to attack abuses..." What was interesting in the program and with a little delving was that Erskine used the platform of the courtroom to draw in the Earl of Sandwich (First Lord of the Admiralty) and publicised the fact that the changing of the Charter helped "to serve the base and worthless purposes of corruption..." which "introduced his prostituted freeholders of Huntingdon into places destined for the honest freeholders of the seas.." a beautiful metaphor for the disfigured and loyal seamen. Erskine went  further:

"... that these men (among whom are the prosecutors) are not only Landmen, in defiance of the Charter, and wholly dependent on the Admiralty in their views and situations, but, to the reproach of all order and government, are suffered to act as Directors and Officers of Greenwich, while they themselves hold subordinate offices, the control of which is the object of that direction;- and inferring from thence (as a general proposition) that men in such situations cannot, as human nature is constituted, act with that freedom and singleness which their duty requires, he justly attributes to these causes the grievances which his gallant brethren actually suffer..."(2)

It is clear from records that Baillie sought not the removal of the Governors but remedy for the poor seamen and to save "Greenwich Hospital from ruin." Say no more.

Words - weapons of mass instruction

It was the production of the 'book' that drew the ire of the Governors of the Hospital. Baillie saw this as a means in framing the complaints of the men. Erskine points out how the Prosecutors had sought to isolate passages from the entirety of the book to prosecute their case:

"If the Defendant be guilty for any crime at all, it be in writing This Book:  and the conclusion of his guilt or innocence must consequently depend on the scope and design of it, the general truth of it, and the necessity for writing it; and this conclusion can no otherwise be drawn than by taking the WHOLE of it together. Your Lordships will not shut your eyes, as these prosecutors expect, to the design and general truth of the book, and go entirely upon insulated passages culled out, and set heads and points in their wretched affidavits, without context, or even making an attempt to unriddle or explain their sense, or bearing on the subject; for, my Lord, they have altogether omitted to traverse the scandalous facts themselves..."(3)

What became clear as the trial progressed was the scale by which associates of the Governors including traders known to them in Huntingdon, enriched themselves at the cost of those who had bodily spent themselves in service to their country. For example, wards within the Hospital reserved for the use of aged and disabled seamen were converted into apartment for Directors and Clerks of Clerks.

Vindictiveness and recriminations

For those wishing to give evidence as to the validity of the issues raised by Baillie, they were "deprived of their places", "exposed to beggary and ruin".(4) Some withdrew their signed affidavits for fear of repercussions refusing to appear in court and give evidence. Yet some braver souls spoke out and provided  testimony to back Baillie's assertions. The case also raised the issue that the Charter had been altered and allowed 'Landmen' to be catered for. When a group of seamen campaigned to have them removed, one Charles Smith who signed an affidavit for the Court, was with his family ejected from the Hospital into penury, his wife expiring at the Hospital gates.

Baillie was to win against the odds. However, the First Lord of the Admiralty and his supporters ensured that Baillie would never again work in the Royal Navy. Justice served!

Say no more.

For those of a stiffer constitution, it is worth reading the preamble from the original speeches of the Honourable Thomas Erskine reproduced below:


CAPTAIN THOMAS Baillie, one of the oldest Captains in the British navy, having, in consideration of his age and services, been appointed Lieutenant Governor of the Royal Hospital for Superannuated Seamen at Greenwich, saw (or thought he suw) great abuses in the administration of the charity; and prompted, as he said, by compassion for the seamen, as well as by a sense of public duty, had endeavoured by various means to effectuate a reform.
      In pursuance of this object, he had at various times presented petitions and remonstrances to the Council of the Hospital, the Directors, and the Lords Commissioners of the Admiralty, and he had at last recourse to a printed appeal, addressed to the General Governors of the Hospital. These Governors consisted of all the great Officers of State, Privy Counsellors, Judges, Flag-Officers, & c.c.
     Some of the alleged grievances in this publication were, that the health and comfort of the seamen in the Hospital were sacrificed to lucrative and corrupt contracts, under which the clothing, provisions, and all sorts of necessaries and stores were deficient ; that the contractors themselves presided in the very offices, appointed by the charter for the control of contracts, where, in the character of counsellors, they were enabled to disniss all complaints, and carry on with impunity their oivn system of fraud and peculation.
       But the chief subject of complaint (the public notice of which, as Captain Baillie alleged, drew down upon him the resentment of the Board of Admiralty) teas, that Landmen were admitted into the offices and places in the Hospital, designed exclusively for Seamen, by the spirit, if not by the letter of the institution. To these landmen Captain Baillie imputed all the abuses he complained of, and he more than insinuated by his different petitions, and by the publication in question, that tliey were introduced tothese offices for their election services to the Earl of , as freeholders of Huntingdonshire.
     He alleged further, that he had appealed from lime to time to the Council of the Hospital, and to the Directors, without effect; and that he had been equally unsuccessful with the Lords Commissioners of the Admiralty, during the presidency of the Earl of Sandwich ; that, in consequence of these failures, he resolved to attract the notice of the General Governors, and, as he thought them too numerous as a body, for a convenient examination in thefirst instance, and besides, had no means of assembling them, a statement of the facts through the medium of this Appeal, drawn up exclusively for their use, and distributed solely among the members of their body, appeared to him the most eligible mode of obtaining redress on the subject.
      In this composition, which teas written with great zeal and with some asperity, the names of the landmen, intruded into the offices for seamen, were enumerated; the contractors also were held forth and reprobated; and the First Lord of the Admiralty himself was not spared.
     On the circulation of the book becoming general, the Board of Admiralty suspended Captain Baillie from his office. And the different officers, contractors, & c. in the Hospital, who were animadverted upon, applied to the Court of King's Bench, in Trinity Term, 1778, and obtained a rule upon Captain Baillie to show cause in the Michaelmas Term following, why an information should not be exhibited against him for a libel. (5)

(1) The Speeches of Hon Thomas Erskine (Now Lord Erskine) When at the Bar on Subjects Connected with Liberty Of the Press and Against Constructive Treasons, collected by James Ridgeway, Vol I, London 1810, Publisher J Ridgeway pp 7-8
(2) Ibid pp8-9
(3) Pg16
(5) Available at Google books. Click here to access the online version.
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Thursday, 25 November 2010

The Ghost of Daniel Defoe

This would now seem to be taking on the proportions known only to the architect responsible for the drawing up of plans for a colossal ancient Mycenaean citadel situated around 90 kilometres south west of Athens around 3400 years ago. At this juncture it might be wise to highlight who exactly are the characters in the second act of this ongoing epic and as such this writer craves your indulgence...

Your Honour I pray your indulgence...
the libellous gentleman I refer to is that fucker over there!

Cast of Characters

The Accused

Dr Gary Paul Duke - The defendant (also known to his associates as the gentleman to the left with the grey hair)

The Claimant (as named in witness statements collectively known as the University of Salford)

Professor Martin Hall - The Vice Chancellor
Dr Adrian Graves - The Registrar
Professor John Wilson - A Head of School
Dr Chris Andrew - A former Head of School
Mr Mark Rollinson - The Head of Governance Services
Professor Michael Harloe - A former Vice Chancellor

Acting on behalf of the Claimant

Mr Ian Austin - Formerly of Halliwells and the Lawyer for the Claimant
Mr Simon Vaughan - Barrister (or Brief) for the Claimant

Greatly assisting the accused

Mr Eric Longley - The McKenzie Friend

Act II

The setting: The Accused has been named as The Defendant by The Claimant in a claim for libel. The Claimant has not yet issued proceedings against The Defendant as it seeks to gather conclusive evidence which The Claimant believes will prove that The Defendant and/or others are responsible (or not) for a website hosted on Wordpress called The Rat Catchers of the Sewers. Prior to this The Defendant has received several letters from the Claimant's legal representatives asking The Defendant to admit to being involved in the website. One other person is known to have received a similar letter. As is his right, The Defendant refused to accede to the request. He has neither confirmed nor denied involvement in the blog. He has no obligation to supply any information to The Claimant. The Claimant, having no conclusive evidence to prove that The Defendant is involved, has asked the Court to grant an Order - a Letter of Request - that the host of the website (Automattic Inc who own Wordpress and are based in California) provide information that would confirm the originators, authors and contributors to the website and provide The Claimant with all IP addresses used to post on the Rat Catchers website. To date Automattic Inc have proved less than responsive.

It's a Saturday morning... the day before the day before

Saturday 19th November 2010
Yesterday brought with it a nice big juicy bundle of documents supplied by The Claimant's solicitors - yes three whole days before the hearing! It's nice to be indulged by the opposition and given more than sufficient time to prepare. I'm lucky to have a raft of top lawyers who have the resources to wade through the one hundred and eighty four pages before Monday. The telephone rings. I shake the almost irresistible gravitational attraction of further slumbers from my head, yawn, rub my eyes and quickly realise that the only raft I have is the one I'm adrift at sea on. I also make a mental note that it's made out of paper and it's a bit soggy. I stumble out of the bedroom and head in the general direction of the shrill claxon call of the telephone.

Legal representation - it's a costly business

Just to place things into their proper perspective, unlike The Claimant I'm gratuitously lacking in the legal representation department to some merry tune. In short, the luxury of a gaggle of lawyers with their accompanying pooled experience to draw upon, or to undertake for me this thoroughly unwholesome job of work is oddly amiss. The reason for this? As some may be aware I am currently, as they say, ' between positions' which in this case is rockhard and a funky place and penury and debtors gaol. Joking apart, Legal Aid isn't generally available to defend against allegations of libel and nothing leads me to believe that my door bell will be accosted in the very near future by a dashing William Garrow type. Despite this obvious deficiency, one coffee later and it dawns on me that it's the day before the day before the second court hearing and there is a considerable bundle of documents to be thoroughly absorbed.

One of these might get you in

The odd man out

Oddly enough, I wasn't invited to the first hearing. Although my name is firmly affixed next to the word "defendant" on the legal documents and witness statements I've so far received from the court and The Claimant's lawyer (hereafter referred to as The Lawyer), I was kept pretty much out of the initial hearing loop. The Claimant is seeking an order from the Court.  Without the intervention of the Judge - Judge Smith - I probably wouldn't have been invited to this one. Of this I was informed by a nice helpful chap in the Civil Justice Centre a few weeks back. It appears that the The Claimant's legal team, wary of being seen to conduct such affairs behind closed doors, sought to have this second hearing ex parte.*

The task in hand

Thus without the necessary resources to finance legal representation, I knuckle down and embark upon the gruelling task of reading one hundred and eighty four pages, combing through every word very carefully. I comb through it so thoroughly that I've given it an asymmetric side-parting and it'll be adorning the head of a loud, spotty middle class sixth form student on the grassy knoll adjacent to URBIS a week today. It's only taken a couple of hours but I'll have to re-read and take notes. I also come to realise that I have re-developed an enormous caffeine habit with its diuretically induced concomitant - an enormous latrine habit - which like its Japanese tea-based counterpart, has its own little ritual involving lunging towards the stairs holding your crotch whilst mentally teetering on a tightrope stretched betwixt leaving it 'til the last minute and obvious signs of pant pissing with associated potential rancour from my long-suffering wife.

As well as habitual urination, I conclude that document reading has become quite an everyday chore, an almost mundane daily have-to-do - with no end in sight. I justify this to myself in such pithy terms as inwardly repeating mantra like 'it goes with the territory'... 'it goes with the territory'... the territory of taking the line of most resistance. So, since my suspension in May 2009, my days and evening revolve principally around pouring over thousands of documents and emails provided by my former employer (in ET related matters known hereafter as The Respondent) under a Subject Access Request last November. This as well as a variety of online legal precedents and caselaw consume vast amounts of hours. But it has to be done in order to ensure that I have a fighting chance at the Employment Tribunal scheduled for next March.

Take two of these if the complaint persists

Money well spent

You may well ask why the UCU lawyers are not doing this particular joyous chore for me given my obvious former position as UCU branch Secretary and Casework Officer and lateral empty-pocket-edness (which has worryingly drawn both commentary and the odd bit of loose change from my local Big Issue seller). Yes it's an almost suicidal insistence and a bovine perspicacity that ensures that every month I continue payment of my monthly subscription to the UCU. But alas, satire it seems, has no role to play in the affairs of trade unionism.  I was informed last year that the union's lawyers would not be taking up my case for unfair dismissal. That seemed almost fair to me so I decided after weighing up my option to D.I.M. (do it meself). So in short, I've become all too familiar with a kettle, a toilet and the more arcane aspects of employment law. If we throw into the cauldron of opprobrium lashings of letter writing, job applications which also consume huge chunks of time, lots of telephone calls and a crash course in libel law, that pretty much sums up this thing that's euphemistically known these days as being.

However, I do get the odd spare minute to sit back and let my mind wander. My own personal experience and knowledge of the amount of work and time involved in building a case for an ET,  I marvel at those who fought their own corner before the advent of the electronic abacus. So much is readily accessible over the electronic ether these days. It has its down side as the limitless amounts of information at the end of a mouse means sifting through the irrelevant which also consumes vast chunks of one's life.

Thus, in between writing emails to Mr Matthew Stephenson, the Information Commissioner, emails to Mr Matthew Stephenson , the Employment Tribunal, emails to Mr Matthew Stephenson (he's getting a Christmas card this year), letters to two sets of University lawyers (one for the ET and one for the current libel proceedings), this blog and negotiating a route through the ins and outs of the various pieces of legislation around Freedom of Information, Data Protection and such like, by the end of the day I'm about as intellectually responsive as shell-bound Galapagian on heroin with massive egotistical pretensions towards facial topiary.

Well worth the effort
An exercise in futility?

I confess that I did glance through the bundle yesterday in between trying to look after my two and a half year old grand daughter whilst drinking copious amounts of coffee and urinating all too regularly, not all at the same time I might add. But there was no contest between epic documentary forays into allegations and precedent and the building of an incredibly life-like representation of Tidmouth Sheds out of wooden building bricks for Eleanor's rapidly expanding collection of Thomas the Tank Engine and Colleagues (academic version). This I do conscientiously so that she can simply knock them over without a second thought or a single care. In fact after several rebuilds I began to imagine exactly how a Russian repeat dissident felt after several years in Stalin's Defoian pillory - the Siberian slave labour camp - for producing Samizdat literature.

But today the sun is shining and I really could do with getting out on my bicycle. I raise my gaze from the huge bundle of documents, glance over at the tatty white canvas bag that contains the wooden building bricks. There they sit forlornly among a pile of discarded toys in the corner of the room. Eleanor will be here again tomorrow and despite its Sisyphean futility, rebuilding Tidmouth Sheds once again seems a much more fruitful labour.

I closed the folder and the lid of my laptop. Time for another coffee.

*Caution: mildly ironical and definitely not believed serious enough to warrant further libel proceedings
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Saturday, 20 November 2010

Mark well these words

"...we particularly value academic freedom and freedom of expression within a framework of respect and tolerance for the views of others."

"Our decision to focus on Human Rights and Social Justice – one of our chosen themes - serves both as a direction for teaching and research, but also as a means of framing all that we do." (1)

The Installation speech of one Professor Martin Hall, Vice Chancellor of the University of Salford, delivered before a distinguished audience in 2009

Mark well these words

A hearing into things deemed libellous by....

The University of Salford


Dr Gary Paul Duke

Monday 22nd day of November commencing at the hour of two o'clock

Sitting before District Judge Smith
In the County Court of Manchester,
The Civil Justice Centre,
1 Bridge Street West

(1) Hall M, Vice-Chancellor, University of Salford, Installation Address, Monday 12 October 2009, sourced at http://www.corporate.salford.ac.uk/leadership-management/martin-hall/wp-content/uploads/installationv2.pdf

Monday, 15 November 2010

The Chilling Effect

"The right to freedom of expression is crucial in a democracy – information and ideas help to inform political debate and are essential to public accountability and transparency in government."
Source Liberty

M'lud, this type of thing should not be tolerated in a modern society
Yes, I am referring specifically to freedom of expression

The UK libel laws - immensely sympathetic to freedom of expression

'Chilling effect' definition: In constitutional law, the inhibition or discouragement of the legitimate exercise of a constitutional right, especially one protected by the First Amendment to the United States Constitution, by the potential or threatened prosecution under, or application of, a law or sanction.'(1)

The difficulties and cost of defending - or even settling - defamation claims in the United Kingdom are such that they create a serious chilling effect for the exercise of the right to freedom of expression. Faced with a threat to sue, newspapers or publishers will often abandon a story, not because it is untrue but to avoid the substantial burden of defending a lawsuit.(2)

Having little in common with the general political views of journalist Nick Cohen, this writer was surprised to be in complete agreement with him on the threat UK libel laws pose to investigative journalism and human rights activism:

For the record m'lud

Readers of this blogsite may not be aware that under UK libel law, the burden of proof falls on the defendant. What does this mean practically? The recent case of the libel action initiated against science writer Simon Singh by the British Chiropractic Association has highlighted this issue and drawn much support for reform of the UK libel laws. We shall return to the matter of reform of these laws later. For the accused in a libel action almost uniquely in law, guilt is presumed and innocence has to be proved. 'Sir! This statement most assuredly cuts against the grain of the very principles of our esteemed legal system and therefore must be wholly incorrect' I hear you gasp whilst wiping the Twinings superior Earl Grey from your tea-spattered beard and best Stayprest. This does of course seem to run in clear contradiction to the legal tenet of ei incumbit probatio qui dicit, non qui negat (roughly translated the burden of proof rests on who asserts, not on who denies) a central principle of English Common Law (and other legal systems based upon this model). Let us together, sponge ourselves down, and test the above thesis through the tried and tested mechanism of utilising an hypothetical example.

Classic methodology - the 'an hypothetical example'

Claimant W is an organisation - hereafter referred to as The Institution. Claimant W alleges that several of its most meritorious employees of high standing (MEHS) have been defamed let's say... in print or on a website. The medium of the alleged libel is largely irrelevant for the purposes of this hypothetical scenario. Because of what has been written about them, the MEHS claim they have suffered serious damage to their reputations. However, there is one fly in the ointment. For largely unknown reasons, none of the MEHS individually wish to actuate proceedings so they decide on pursuing a claim where The Institution acts on their behalf like like some sort of besuited lumbering umbrella with comprehensive BUPA cover. Having agreed their overall strategy, The Institution issues proceedings through the High Court of Justice for libel against an individual they decide is possibly to blame whom we shall hereafter refer to as 'Individual V', the accused, defendant or for the more cynical among you, the condemned. After providing a witness statement to the Court outlining their beliefs and suspicions, The Institution retires. Individual V then embarks upon the unenviable but necessary task of proving her innocence.

You're right... I'll go with pre-sat in leather

The judgement of Solomon - modern versus vintage leather

It's at this point, where you as a keen reader of this blog are taking full advantage of the womb-like comfort of your favourite wing-backed armchair. It's dark brown leather has seen many an arse and as a consequence retains that lovely worn-in patina whilst affectionately gripping both buttocks firmly. The fire is blazing away, framed elegantly by the cast-iron Victorian fire surround which has only recently received a coat of black fire grate polish. More importantly, your feet are warm for the first time today. All the while you're drawing deeply on the rich rough shag packed tightly into your newly purchased churchwarden as you slowly drift towards the light pacific slumber of a leaf-blown November afternoon. Yet despite this nostalgic inner retrenchment, you're slightly irritated as a student knocks on your office door and you jolt suddenly into abrupt consciousness. 'Sir! you're wasting my time with this liberal cobblers! The legal system will protect the innocent and the speakers of truth. There's nothing awry here!' You certainly do not see it as a potential 'three pipe problem'. Let us however don our best attire sans Hellequin , and jiggle the theoretical components of this hypothetical jigsaw in its box.

Thinking, cycling and smoking...
proving conclusively that chaps are perfectly
capable of multi-tasking
"I swear on the Holy Lible that etc..."

Back to our little moral-lacking apologue. With the freshly burnished shield of The Institution to the fore, the MEHS are supremely confident that they shall triumph. As if inscribed in the Holy Lible, writ large so to speak, everything would seem to favour The Institution. Why? Here's the rub... the reason for the unabashed confidence of The Institution lies firmly in the base impecuniosity of Individual V who is markedly unemployed. It would be almost inconceivable that our imagined MEHS were not aware that by a remarkable quirk of the legal system, Legal Aid is not generally available to fight libel cases. 'Ye gods' you shout in your best attempt at a James Robertson Justice, tumbling vulcanous amounts of red hot ash in your already sodden fly as an unread copy of The Times slips down polyester-clad legs to the reclaimed parquet floor in a crumpled heap. You are now sweating profusely from the upper lip whilst ruminating heavily on the central question 'to what degree does this apparent structural resource disparity impact on the overall process'? Forgetting for the moment the land of make-believe, a real case  might serve to enlighten.

I knew I shouldn't have worn heels...

The McLibel Two**

The most high profile case, seen by many as the David versus Goliath libel case was McDonald's Restaurant v Morris and Steel otherwise known as the McLibel trial. At this moment, this libel case can lay claim to be the longest running libel trial in history running to 313 days in court with an additional 28 pre-trial hearings (some running to five days). Both Steel and Morris were denied legal aid. As a consequence they were dependent on lawyers and trainee barristers providing fragmentary pro bono work. Because of the complexity and intricacy of the case and the nature of the allegations against them, Morris and Steel ended up largely defending themselves. McDonald's were reported as having spent in the region of £10 million on legal costs whereas Morris and Steel's costs were estimated at around £30,000 -£40,000.

Of course it's expensive, it's Saville Row and
one must always look finessed before the beak
What this meant in real terms was that McDonald's could draw upon expert witnesses from around the world, could finance the travel and hotel costs of witnesses and instruct and maintain top barristers and lawyers to provide continuity and solidity to their prosecution. Lacking the financial resources, Morris and Steel patently could not and were to eventually lose the case because of this colossal imbalance in resources. However, in the public eye it is Morris and Steel who are deemed to be the moral victors, a classic case of David versus Goliath. For McDonald's, despite the millions of pounds invested in legal representation, their victory was somewhat pyrrhic being described by various commentators as 'the worst Corporate PR disaster in history'. In 2005, the McLibel Two as they became known, took the British government to the European Court of Human Rights which ruled that Article 6 (sec1), and Article 10 of the Convention had been breached in the course of the original trial:

"Budgie... I'll have your arse"

Formidable reserves - you've either got it or you ain't!

It may be that the sheer size of organisations can imbue a sense of invulnerability and righteousness and as a consequence, in these sorts of cases there might develop at the outset either a feeding frenzy sort of mentality or indeed its polar opposite; a sense of collective well-being not dissimilar in its corporeal manifestation to that experienced in the lacklustre euphoria of a post-coital Woodbine or two. One can almost hear the strains of 'Oh hallelujah and praise the Lord our God almighty' in the dying gasps of a desolate salt 'n' vinegar stroke.

The real winners are....?

However, little has changed practically in the ability of a defendant accused of libel to secure legal aid to fight a case.  Sadly, most succumb in the initial stages to the immense pressure and apologise and/or settle out of court. Few fight on. And there can be very good reasons. Readers of this blog may also be unaware that a claimant can instigate a 'spurious libel action' resulting in the ratcheting up of massive costs on both sides running into hundreds of thousands or even millions of pounds. Many claimants have utilised 'no win - no fee' agreements with lawyers to embark upon libel cases. They can then choose to drop their case on the eve of the libel trial without fear of suffering any legal penalties? Given this, there is little incentive for lawyers not to draw out libel proceedings in order to ratchet up costs?

Libel - a growth industry

Moreover, many readers may not realise that because the UK's libel laws so favour the complainant, the UK has become home to a phenomenon called 'libel tourism'? What does this mean practically? Let's change the scenery and but keep the characters of our above hypothetical example and say that Claimant W is now an individual of some wealth, based in Saudi Arabia.

A journalist - Journalist V - authors an article which is published in a journal critical of Claimant W. In order to silence criticism and future investigative reporting of Claimant W's dealings, Claimant W decides that Journalist V has defamed him. Claimant W wishes to use the claimant-friendly libel laws and courts of the UK. Armed with his vast reserves of money or alternatively suitably armed with a legal team working on a no-win, no-fee basis, Claimant W will use the UK's extremely sympathetic libel laws to sue the journalist for libel through the British High Courts. 'But how?' I hear you ask.

Could you turn the volume of
your writing down to.. er... zero?

It's rather simple. The journal in which the article is published is widely distributed in Saudi Arabia but sells only a handful of copies in the United Kingdom. This is enough for Claimant W. All he has to do is to prove distribution or that a handful of people in this jurisdiction (the UK) have read the claimed defamatory words (even if they were published in another territory or jurisdiction). He claims he has been professionally diminished or his reputation damaged by the article and he and his legal team board the private train, make their way to first class and simply sit back and wait until they arrive at their destination - shittercarts full of money!

From the above, it is clear the the UK libel laws need drastically reforming. Despite recent changes to the  way libel actions are funded through the use of Conditional Fee Agreements (CFA) or in everyday parlance no win-no fee, prosecuting a libel claims is relatively simple. Defending one on the other hand and accessing the necessary resources do this is at best non-existent and concomitantly immensely difficult and costly to the individual as the McLibel case has demonstrated.

However, the 'chilling effect' of the threat of libel action has far more serious implications for freedom of speech and freedom expression via online blogging as this author knows only too well. The libel laws must be radically overhauled.

Sign the petition for libel reform at Libel Reform Campaign

(1) Webster's New World Law Dictionary Copyright © 2010 by Wiley Publishing, Inc., Hoboken, New Jersey.
(2) ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION Submission to the 91st Session of the United Nations Human Rights Committee on Respect for Freedom of Expression in the United Kingdom of Great Britain and Northern Ireland, Pg 8, sourced at http://www2.ohchr.org/english/bodies/hrc/docs/ngos/Article19_UK93.doc
(3) Cohen N, It's time to change our libel laws, sourced at http://www.guardian.co.uk/commentisfree/2009/jan/30/civil-liberties-libel-law

Disclaimer: The above comments are the opinion of the author. All the events and characters in the above hypothetical examples are fictional apart from those that are obviously real. Any similarity to the name, character and history of any living person, is entirely coincidental and unintentional. All punctuation is of a rather haphazard nature. Moreover, if you were not in line when sense of humour was universally distributed and feel that any of the comments are not amusing, are unfair or you believe you have personally been wronged, please take the time to firstly contact the satirically challenged lecturer before embarking upon an expensive libel action. If you wish to follow this course of action, please state the nature of what you believe is the specific hurt or damage. All complaints will be treated with the straightest of faces and amended if deemed necessary. This blog also operates a right to reply should one feel the necessary urge.

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Wednesday, 10 November 2010

Oh Mr Porter!

Isn't it odd how the Press Association, the BBC and other media see the world? A few members of the British armed forces marching a thousand miles to raise money for the British Legion is seen as a thoroughly positive thing (putting aside for one moment the sticky question of why these wounded 'heroes' who have fought to promote British interests abroad have to rely on charity in the first place). This is pumped out to such a degree that its intrinsic 'rightness' has been absorbed into our collective DNA. An example might be the raising of vast amounts of money through clever little devices or mechanisms such as financial appeals like Help for Heroes or the musical manoeuvres performed by highly talented songers known as 'The Soldiers'.

They're heroes and they're doing a great job...
Charity begins at home

This type of militarisation of society is seen in mediaworld as not only necessary but as a fitting tribute to 'our boys' who are after all, only doing a 'job'. The rising frequency with which these types of images or stories are portrayed on our TV screens some cynical types might argue, is designed to counter negative portrayal of war, the mass opposition to it and the increasing frequency with which the dead and maimed are being boxed up and sent back to the UK. The by-now monotonous regularity with which our screens are filled with the happy-clapping mourners of Wootton Bassett who for some vague reason have taken it upon themselves to act as the nation's carpideiras who see it as their personal moral duty to help 'repatriate' the dead on our behalf.

Rarely mentioned are the tens of thousands of Iraqis or Afghans maimed or slaughtered by 'our boys'. This violence is of course perfectly acceptable because it is conducted under the rules of engagement and as part of the War on Terror. The British troops and their allies are killing to ensure that we can travel on public transport without ourselves being killed. This they do with a well-trained eye on the handbook of war, conducting their campaigns according to very strict guidelines never wittingly targeting civilians. If there are civilian deaths or casualties they are usually reported as 'unfortunate' mistakes or unavoidable 'collateral damage'. If the innocent casualties now and again manage to garner some scrap of airtime, those who take up arms and oppose the invading armies - whatever you wish to call them - suffer singing-from-the-same-hymn-sheet opprobrium. The violence of everyday warfare is very deftly given a makeover that would make style guru Gok Wan fashionably lime green with envy.

This chap's foot made more impact media-wise
than the considerable talents of the
king of the NUS Aaron Porter
Contrast the supine reportage of this sort of state violence to that conducted by a few hundred students angry at the dismantling of state funded university education. The BBC news, Boris Johnson, Channel 4 et al, spoke with one voice in their condemnation of the 'violence'. Of course, those heaving in the windows of Tory HQ couldn't have been the darling progeny of the middle class could they? It must have been organised and led by 'anarchists' or according to one BBC reporter well versed in the use of the Marxist dialectic, the 'Socialist Workers Party'. How did she reach this compelling and incontrovertible truth? Its elementary dear Watson. She'd seen them selling papers earlier on the demo. Ah if only life were as simple as her.

You read it here first

As predicted on this blog last week, students in the UK, fed up with annually strolling around London shouting, have decided to take a leaf out of their French and Greek counterparts' book. They are rightly angry that Nick Clegg lied to them and is helping the Tories hike fees up to an unaffordable level for even the well healed. Some of the more politically advanced students are less than happy with having to pay the bill for an increasingly bankrupt capitalist system that puts profits of corporations before public services and the very notion of a 'public good'. Far from condemning these students, we should be congratulating them. They are undoubtedly the vanguard and a portent of the very near future. They also made sure the demonstration got airtime. If anyone should be condemned it should be that awful excuse for student leadership epitomised by the frightened-of-his-own-shadow Aaron Porter, NUS President. It is the view of this author that this man has all the credentials for a potential future within the ranks of the New Labour hierarchy.

Students... they're lazy, smelly,  long-haired sods!
The press will no doubt over the next day or so, roll out a few vox pop types: over fifty five, grey haired and disgruntled,* who like Mr Porter will without a second thought, condemn the violence of the students. Our generic pre-retirement chap, chafing at the gusset because he's being forced to suffer two years of extra post-retirement harassment from his boss who he thinks is a bald vindictive bastard, will without an original first thought add  that "they should bring back national service". He will not of course consider for one moment the irony in his rather reactionary and ridiculous demand.

*This author is professionally qualified to take the piss out of grey-haired types having been endowed with a fine grey mane. 
For the sake of not wishing to be sued for libel a second time, all the above is nothing more than the opinion of the author and contains no 'facts' whatsoever.

Thursday, 4 November 2010

In Addition...

'Journalism without a moral position is impossible. Every journalist is a moralist. It's absolutely unavoidable.' Marguerite Duras

The figures are quite stupendous and dizzying. Stupendous and dizzying but oddly enough for this pitifully indigent scribbler, not surprising.

After the posting on the cost of settling disputes at the University of Salford over the last few years, the figures below were almost immediately provided to this writer by an associate. They were previously provided to him by Stephenson and Wai Yan Loh of Information Governance at UoS in response to an FOI submission.

'The annual spend on legal fees for the academic year 2005/06; 2006/07; 2007/08.

2005/06:  £439,956.35
2006/07:  £355,309.73
2007/08:  £434,934.66'

Total £1,230,200.74

Lawyers - A fact of life

Despite featuring it in smaller print in order to try and make the sums look smaller, it's a whole lot of ackers by any measure. It is however a truism of the common-or-garden variety that any large organisation or public authority such as a University will incur legal costs. For those students of quantum mechanics, it is as unavoidable as the fundamental, unavoidable indeterminacy that supplies the universe with alternative histories. Yet when drawing any conclusions, we should bear in mind as to the primary sources of funding of a public authority such as the UoS, which is disbursed to it largely in the form of government grants under HEFCE (derived ultimately from taxes) and of course student fees.

A principle that has underlay all the issuances that have poured forth ink-like from the metaphorical pen of this writer has been the maxim that as a public authority, the University of Salford, like any other public authority and every other university of the publicly funded sort, should be frugal with public funding. Further, all costs such as 'expenses' and those spent on legal fees should rightly be monitored very closely and be provided and published in a comprehensive yet concise form for the scrutiny by the public. It goes by the names of transparency and its twin, accountability.

Value for Money

A couple of niggling questions did however spring to the fore of this rather befuddled excuse for a cranial-dwelling problem-solver. Firstly, in these days of national impecuniosity with the very real possibility of increased fees for students on the horizon, are the UoS receiving value for money from the legal firms that supply services to the University? Secondly, would it not be best to try and rationalise the delivery of these services and instead of having a list of law firms such as Pinsett Masons, Addleshaw Goddard, Hill Dickinson, and Marks & Clerk, Cobbetts, Kuit, etc*, say whittle it down to say one or two legal firms such as er.... Halliwells Heatons and Eversheds? Could these two firms with their obvious capacity not handle all the disputes, settlements, confidentiality agreements, Employment Tribunals and libel suits between them?

And just when you thought this was quite a large sum... 

This writer among others, has previously on occasions raised the issues of what was widely seen by staff and students alike as profligate spending at the University of Salford. The protests against Project Headroom highlighted this. So did the satirical Vice Consul's Newsletters which lampooned managers in order to highlight the incongruity of staff being asked to sacrifice their posts in order to create financial headroom whilst the UoS invested ever increasing sums in its presence at MediaCityUK in a period of severe global economic downturn.

Thus it would appear odd that in these cash-strapped times of austerity and the 'national interest' that UoS would embark on what might be an expensive lawsuit. Yes, this author can confirm that that senior managers at UoS have pump-primed their metaphorical sat-navs, adjusted their sextants, instructed their legal navigator  Chair of Audit on University Council Mr Ian Austin, and are punching in the coordinates for a very expensive destination known as invest even greater sums in the legal system through the use of the good old freedom of speech protecting English libel laws.

Full steam ahead

You may recall this journey from previous expensive high-profile libel trials. It runs adjacent to cross lawyers and barristers palms with buckets of gold, and concludes somewhere near the Sirius Binary system about 8.7 light years yonder. Along this path we will observe the almost magical manner with which vast sums of tax payers hard-earned and student fees are alchemically converted into fees of a legal variety. A negative into a positive so to speak depending on whether you're studying or practising law.

If nothing else, it promises to be a long journey conducted in the press and more importantly for this writer, under the harsh scrutiny of an increasingly penurious public. As for whom will ultimately stand in the dock, as it progresses behemoth-like, it is likely it will consume vast sums of money, many reputations (both personal and institutional) and careers as it will footfalls, freedoms and years.

Yet there is a final and more pertinent and materialistic question that is nibbling at the peripheral leg-endings of a threadbare pair of 1970s Falmer jeans that have quite obviously seen better decades, and that question is this. In a period of austerity imposed from above, is a 'lorra...lorra...'** money spent on legal fees, barristers and lawyers really the best use of taxpayers pounds and student fees? Answers on a postcard please to: Vice Chancellor Martin Hall, C/O the Old Fire Station, Salford.

A date for your diaries: 

A hearing in the manner of things deemed libellous...

University of Salford 
Dr Gary Paul Duke

2pm, 22 November 
Manchester District Registry.
Civil Justice Centre

*Firms said to represent UoS in above FOI requests (undated)
** Courtesy of Cilla Black the singer

Tuesday, 2 November 2010

Student Protests - the Green Shoots of Recovery?

Children of the revolution in Bolan-esque terms
Students at the London School of Economics are planning to protest today against a visit by Energy Secretary and Coalition minister Chris Huhne. Students are opposing plans to raise student fees. The protest also appears to have the solid backing of the National Union of Students (NUS). This has the potential to be the start of a shift forward in terms of the dynamics of the student protest in the UK, organising collectively to fight the cuts in HE and the imposition of higher fees.

This follows a successful protest last Thursday in Oxford by students who forced Vince Cable to cancel his visit to the University. The protest in Oxford was partly built through a Facebook page which attracted considerable interest. Around 1,500 students, members of the public and trade unionists brought traffic to a standstill in Oxford on more than one occasion despite the best intentions of the police to scupper their plans.

The stopping of traffic....! how dare they. This brings back memories of our own campaign at the University of Salford two years ago. A series of protests, with one stopping traffic at rush hour, demonstrated how students and staff could begin to organise in opposing unpopular savage cuts to courses and staff.

Students protesting against Vince cable (Photo J Pitman)

The NUS and leadership skills

Since the introduction of tuition fees by a Labour government, the NUS have largely been half-hearted in their opposition to fees. There have been some sizeable and angry protests in London in the past especially when fees were first introduced. This author went on many coaches to Londinium and broke through countless police lines in order to lay claim to the London streets in the name of free education.

But the campaign quickly became much like an annual chore that had to be organised to keep up appearances. The NUS leadership now have the chance to place themselves at the centre of opposition to the privatisation of HE. It needs to take a leaf out of the 'green shoots' of student protest recovery in France and coordinate campaigns with the trade unions much like the students have in Greece. The protests also need to be linked up with students in the FE colleges who are also being attacked with cuts in the Education Maintenance Allowance (EMA). Thousands of these students will be forced into Job Centres as the EMA is their lifeline into further education.

 Larger and more militant protests need to be organised if an effective opposition is to be built in order to drive back the Tory decimation of higher education and the social cleansing of poorer working class students from academia.

Repeat after me... 'I will pay my fees on time'

Free education for all

However, the argument needs to be put that the demand is for free education for students, not merely a cap on fees. The template for the future of Higher Education of the Cameron-Clegg variety can be seen in Africa with spiralling costs, increased fees, huge cuts across the board, larger class sizes and less staff. The process of de-industrialisation that was witnessed in the industrial sector during the early 1980s under the Thatcher administration is being replicated in HE with savage cuts to terms and conditions and the drive for staff to increase productivity. The claims made by politicians and parroted by TV news reporters that we simply cannot afford free education, is a lie. Britain struggled with a far higher budget deficit in the late 1940s and still managed to build the NHS and the Welfare State. It's simply an argument about priorities -  the priorities of profits or the priorities of needs and public goods.

Students..  they're about democracy fundamentally

Students have historically also been at the forefront of the process of democratisation. Witness the role of students in Tiananmen in 1989 and more recently in Iran where they have played a central role in framing the debate and forcing the ruling regime onto the defensive. Student protests have historically provided both a fertile medium in which new ideas can germinate in periods of intensification of class struggle. They can also act as the spark in igniting protests against cuts and austerity across the UK and beyond. The ghosts of May '68 still haunt the politicians and terrify our bosses... yes even at Salford!

A victory in securing free education would force the university system to become far more democratic in that it would provide opportunities for far greater numbers of working class people. Education should be a right for all students, not just some sort of almost 'natural right' or 'inalienable right' of the wealthy and privileged, who will have little problem finding the extra money to cover the costs of increased fees.