Legal fees scandal

Personal injury lawyers are under fire today. The Tories have asked some well-aimed parliamentary questions, and discovered that the NHS is paying out a staggering amount of money to meet victims' legal fees in clinical negligence cases. In over 10% of successful claims against the NHS, the lawyers receive more money than the patient, with NHS legal costs adding up to £700m over the past five years.

It's easy to blame this on the lawyers, a profession whose popularity ratings are only marginally higher than Labour MPs and City bankers. But the real cause of this scandal is the lack of any legal aid funding for patients that have suffered from clinical negligence.

If your operation has been botched and you can't afford a lawyer, you have to enter a "no win, no fee" arrangement. Law firms doing "no win, no fee" work end up losing a lot of their cases, and get paid nothing at all. They then have to charge a "success fee" in the cases they actually win (which gets paid by the losing side, ie. the NHS). Supposing the firms lose 50% of their cases, they have to charge double the rest of the time, just to break even. (In fact, the formula is slightly more complicated than this, and takes into account the likelihood of winning each case, but the basic idea still holds.)

The obvious solution is to give legal aid funding to patients who have suffered from clinical negligence. Then, lawyers would get a fixed and fair wage, depending simply on the complexity of the case. If the legal costs clearly outstripped the value of the likely payout, claimants could make an informed choice about whether or not to proceed. The system would arguably be much fairer.

Unfortunately, our gut reaction is exactly the opposite: to cut the legal aid budget, and to feel very smug about wasting less public money on parasite lawyers. The legal aid budget has been slashed, year on year, but rather than save money, it's stopped everyone but the rich from having fair access to the courts. Both claimants and defendants are thrown at the mercy of the casino-style odds game that is the "no win, no fee" system. Populist anti-lawyer rhetoric may make us feel better for a while, but it won't solve the fundamental problems that have led to this latest scandal.

Rape laws punishing the innocent, and failing to tackle the guilty

On my way to Chester two days ago, I gave up on trying to listen to my iPod above the racket of the train wheels, and picked up a free copy of The Metro from the seat opposite. The front-page story was entitled "Child rape" teen is saved by Bebo.

It's a story about a 15-year-old by who had sex with an 11-year-old girl whom he thought was the same age as himself. He was charged with rape, although the girl had in fact agreed to sex (if you can really say that an 11-year-old has the capacity to agree to sex, which is a moot point). He was spared a jail sentence; the court accepted his story after learning that the girl had posted explicit photos of herself on Bebo. He still has a criminal record for underage sex, though, and has to sign the sex offenders' register for two years.

It got me thinking about the complete mess Labour has made of our rape law. The Sexual Offences Act 2003 was promoted as a vital modernisation of our outdated laws; an important way of protecting vulnerable women and children. In fact, it’s created more problems than it's solved.

Usually, to convict someone of rape, you need to prove that the victim didn't consent, and the defendant knew that (or, if he made a mistake about consent, you have to prove it was an unreasonable mistake).

However, the 2003 Act introduces a new offence: rape of a child under 13. To be convicted under this section, all you need to do is have sex with an under-13-year-old. Even if she consented, and even if she lied about her age, it's still rape. The logic behind this was that no 12-year-old could possibly consent to sex. It would be unfair and harrowing for child victims to have to go on the witness stand and be grilled by a barrister about whether they’d agreed to it or not.

That's entirely correct in the case of a 12-year-old girl forced to have sex by an older paedophile. But what if she's having sex consensually with her 13-year-old boyfriend? The boyfriend is technically guilty of rape, and he can get a conviction which will go on record and destroy his life. Which, for an Act supposed to protect children, is pretty perverse. (This has actually happened, by the way.)

Not that I'm for a minute suggesting it's a good idea for 12 and 13-year-olds to have sex. But if they do, should they really be dragged through the courts? Surely this is a matter for the family, the community, the school? We do need to deal with children who have sex far too young. But giving them a lifetime record for the second most serious crime is wildly out of proportion, and it completely defeats the object of child protection!

The 15-year-old in the Metro is lucky to have got away with a lesser conviction for straightforward underage sex, rather than rape (which he was technically guilty of, regardless of the Bebo photos). But I was struck by what the judge said to him when releasing him on probation: "I hope you realise this conduct has got you into serious trouble indeed. The maximum penalty for this is ten years' imprisonment."

A boy in his mid teens, having sex with a girl whom he thought was in her mid teens too? Carrying a ten-year jail sentence? My God, half my mates would still be in prison today …

The fundamental problem with our rape law (and the criminal law in many other areas) is that Labour seems to believe you can solve most things if you introduce tough enough laws. It's a case of a lazy government, going for the soft option of shuffling paper around to "make a statement", rather than taking practical action to solve problems.

It's a sad fact, but you'll never get as high a conviction rate for rape as for other crimes. It usually takes place in private, between people who know each other, with no independent witnesses and inconclusive forensics. But we could improve convictions drastically by, say, having 24/7 rapid response cars visiting rape victims, collecting vital forensic evidence as soon as they get the phonecall. Instead, we just re-write the definition of rape, to make it tougher for alleged rapists to defend themselves in court, and in the process, we not only create unfair loopholes that ruin the lives of innocent people; we also miss the chance to do something constructive to protect vulnerable people against the most horrendous crime short of murder.

Aside from lazy governmental thinking, the main culprit is the lobby-group mentality in UK politics. There's a loud and organised women's rights lobby (typefied by Harriet Harman), clamouring for higher rape conviction rates at whatever the cost. There's no equivalent lobby group to represent men charged with rape and demanding a fair trial - and if there was, it wouldn't get very far. Add this to a so-called children's rights lobby that thinks it's acceptable to drag inappropriately-young lovers through the Crown Court, and you have a recipe for injustice.


In other news - I'm moving to London this week, ahead of my final year of legal studies. I don't suppose anyone in the political blogosphere has any advice on how to survive in the big city? ;-)

Time to abolish "causing death by dangerous driving"

Lord Ahmed, the Labour peer serving 12 weeks for dangerous driving, will now be freed, after the Court of Appeal suspended his sentence. Ahmed was texting as he drove down the M1 on Christmas Day 2007, minutes before being involved in a fatal crash. The crash wasn't Ahmed's fault; it appears to have been a pure accident, entirely unrelated to the texting.

Of course, if the texting had been the actual cause of the crash, he could have been charged with one of two crimes: causing death by dangerous driving, or causing death by careless driving.

The latter offence is a relatively new one, introduced by the Road Safety Act 2006. Before the 2006 Act, the only "death by" motoring offence was death by dangerous driving. This led to problems when the defendant's driving was just careless, rather than dangerous. People whose loved ones died in those sorts of accidents felt that their loss wasn't recognised at all by the criminal justice system, which is why "death by careless" has now been introduced.

Much as I feel for people who lose family and friends in car accidents, I can't see a principled legal reason behind either of the "death by" offences. The crimes that they're based on (straightforward dangerous driving and careless driving) are so-called conduct crimes: that means that you don't have to do any actual damage to be guilty of them. Lord Ahmed's case is a good example - his texting didn't cause any harm, but he was guilty of driving dangerously all the same.

A crime like murder, on the other hand, is a result crime: to be guilty, you have to bring about a particular result, ie. someone's death.

The two "death by" driving offences are neither: they take a pure conduct crime like dangerous driving, and then tack a piece of result crime onto the end of it, which is a hopeless mishmash.

I would argue that it's wrong, in principle, to jail someone for bringing about a particular result unless they have some element of mental guilt related to that result. In other words, to be convicted of a crime that includes the words "causing death", you must either intend someone to die, or you must deliberately run the risk of someone dying.

We need to look at the reason why a person is culpable. If they're culpable simply because of the poor standard of their driving, then we should consider their level of car control, and nothing else. If they're culpable because of the result that they brought about, we need to look for intention or recklessness as to that result.

It's technically possible to charge four-wheeled killers with manslaughter - a proper result crime with a proper element of mental fault - but it only happens rarely. That's because juries are reluctant to convict bad drivers of such a serious-sounding crime, even if they're guilty on paper. The CPS almost invariably prefer to use the specific driving offences.

I've come to feel that there are two main reasons behind the "death by" offences: making it easier to convict people, and making the families of victims feel better. The first strikes me as downright unacceptable; the second, whilst it's important, is surely no excuse to cut corners with our principles. I'm sure this will go down like a lead balloon with car crash families, but I'd cheerfully abolish the two "death by" offences.

Just as an aside: why are we giving jail sentences to dangerous drivers, anyway? I wouldn't be scared to meet Lord Ahmed outside a pub on a Saturday night; what's the sense in locking him away at the taxpayer's expense? Surely a long-term driving ban, coupled with some community service (perhaps in a hospital A&E department) would be far more appropriate!

Luke McCormick, and the little weapons we drive

What a day for the government to decide against cutting the drink-drive limit! The very day that footballer Luke McCormick is jailed for 7 years for drunkenly smashing into another car, killing two young boys and inflicting crippling injuries on their father.

At first glance, the two major news stories don't seem to be related. McCormick was driving at double the limit anyway. The planned reduction - from 80 to 50mg per unit of blood - wouldn't have had any bearing in his case. And according to campaigners for the current limit, the biggest threat comes from drivers who seriously overstep the current limit, rather than those who are just within it.

I understand that argument, but it misses a crucial point. The current limit lets you get away with about a pint of beer. And that gives the impression that it's OK to have a drink and drive, so long as you're careful not to overdo it. In truth though, it's impossible to tell whether or not you're safe behind the wheel. If you're a big ginger lightweight like me, you might be floored by half a lager. If you have the heart and stomach of a fluffy concrete elephant, you might be fine. There's no way of knowing.

Once you establish a principle like "one drink is OK, but don't overdo it," you're inviting people to try and judge a limit which simply cannot be judged. And once they're a few pints down the line, at several times the legal limit, and with their judgement substantially impaired, they're much more likely to think to themselves "I've only had a few - I should be fine."

A limit of 50mg, or even 20mg, would send a very clear signal: just don't do it, at all! The limit isn't there to let people have bit of a drink and still drive. It's there to protect sober people from being arrested because of a small amount of leftover alcohol in their system; that's literally all it should do.

As things stand, we send a badly mixed message. All those taxpayer-funded public safety adverts say "Think! Don't drink and drive", whereas our legal system says "Have maybe one, then see how you feel." With a setup like that, is it any wonder that we breed drivers like McCormick?

A British Bill of Rights?

MPs are calling for a British Bill of Rights, which would go further than existing human rights law. The cross-party Joint Committee on Human Rights wants to include greater protections for vulnerable groups such as children and the elderly.

Currently, our main protection in law comes from the European Convention on Human Rights (ECHR) - an international treaty - and the UK's own Human Rights Act (HRA), which makes the ECHR into a part of our legal system, and says that UK law has to be compatible with it.

My initial reaction was worry. Are we talking about legislation to supplement the HRA, or to replace it? This might seem like a trivial point - if the new Bill of Rights replaces the HRA, but contains all the same rights and more, what's the problem? But in fact, it's an absolutely crucial detail.

Most countries have a written constitution to protect their citizens' rights, which has sacred status, and which the government of the day can't just amend at will. But in Britain, any Act of Parliament has the same status as any other. A purely British Bill of Rights could easily be messed around or repealed a future government.

The ECHR, on the other hand, is an international treaty. Although it's now become a part of our legal system, the actual text describing our human rights is contained in that treaty, which puts it beyond the day-to-day reach of MPs. Our politicians can't modify, edit or repeal it. In that sense, the ECHR fulfils the same role as the German Grundgesetz or the US Constitution - it creates a red line which politicians can't cross.

If we were to follow David Cameron's policy of scrapping the HRA and completely replacing it with our own British Bill of Rights, we'd throw away an important safeguard against a corrupt or malevolent government in future.

So I was relieved to see the following paragraph in this latest report:

"In our view it is imperative that the HRA not be diluted in any way in the process of adopting a Bill of Rights. Not only must there be no attempt to redefine the rights themselves, for example by attempting to make public safety or security the foundational value which trumps all others, but there must be no question of weakening the existing machinery in the HRA for the protection of Convention rights."

Thank goodness, really. As long as we remain protected by the European Convention, I can't see a problem with a supplementary set of rights. With that caveat, I'm broadly in favour of this report and its findings.

The biggest problem for human rights law, however, is the problem of perception. There's already a mistaken belief that human rights benefit criminals and terrorists more than the law-abiding citizen. It's not helped by the lurid reports in the gutter press every time a prisoner or deportee launches a legal challenge under the HRA. The most important thing the government can do right now is to stick up for their own legislation - to say that the HRA is a fundamentally good thing, and that it protects everyone equally under the law.

George Carey on Max Mosley: "strip kinky people of their legal rights"

Former Archbishop of Canterbury, George Carey, has a particularly dreadful comment piece in today's News of the World. It's about Formula One boss Max Mosley and his recent victory in court against the same newspaper. I thought I'd go through it briefly with a few comments:

"A dangerous precedent has been set this week in the victory of Max Mosley over the press. The first major victim is Free Speech itself. Without public debate or democratic scrutiny the courts have created a wholly new privacy law. In itself that's bad enough."

As a student about to embark on a law course, I read through the judgement in full (homework, you understand, not voyeurism!) and it most certainly doesn't involve the judge creating new laws. It involves him enforcing Mosley's existing right to privacy, under Article 8 of the European Convention.

It's interesting that Carey capitalises Free Speech. Was that his idea, or News of the World's? Because this legal case has nothing to do with some great ideological battle in defence of free speech. It's about a tabloid prying into people's private lives in order to shift product. And if he'd bothered to read the judgement, he'd know that Mr Justice Eady spent most of his time looking at the clash between two equally important rights - Mosley's privacy and NOTW's freedom of expression - and came to a very reasonable and nuanced conclusion.

"But, as a Christian leader, I am deeply sad that public morality is the second victim of this legal judgement. Unspeakable and indecent behaviour, whether in public or in private, is no longer significant under this ruling."

As a Christian leader, who voted for you? Where does your mandate come from? And why on earth do you get to sit in our parliament passing laws that we all have to obey, whether we're Christian or not?

As for this argument about public morality - come off it. Are you saying that as a result of the Mosley case, people will start queueing up to have BDSM sex with each other in public?

This entire case is about privacy - a concept you don't seem to have grasped. It's about people having the right to create a little sphere for themselves where they can do what the heck they like. Whatever happens in that little sphere is supposed to be completely detached from the public. The only reason why Max Mosley's unconventional sexual tastes have had any public impact whatsoever is thanks to the trashy newspaper you're writing for and defending!

"And in our celebrity-obsessed age this is a hazardous route to take."

Presumably, as a Christian leader, you're not a fan of our celebrity-obsessed age. Why are you giving the tabloids carte blanche to stick cameras into celebrities' bedrooms, and splash the gory details all over the web? An ex-archbishop encouraging the press to make money by appealing to people's worst instincts! Shocking ...

"In the past a public figure has known that scandalous and immoral behaviour carries serious consequences for his or her public profile, reputation and job. Today it is possible to both have your cake AND to eat it.

But a case can be clearly made for a direct link between private behaviour and public conduct. If a politician, a judge, a bishop or any public figure cannot keep their promises to wife, husband, etc, how can they be trusted to honour pledges to their constituencies and people they serve?"

If you were talking about an elected politician here, you may have a point. If it were an MP who had sounded off about truth, honesty, integrity; who had lined up his wife and kids for publicity photos; who had voted conservatively on moral issues in the Commons; then you might have a point. But Mosley isn't elected and doesn't hold public office, nor does his job have anything whatsoever to do with public morality. He's in charge of organising a sport where jet-powered lumps of carbon fibre go round in circles at 200mph. I can't see what public interest is served by blowing open the lid on his private sex life.

In his judgement, Eady agrees that when he had prison-themed sexual roleplay with five dominatrices, Mosley had an expectation of privacy. NOTW argued that although they breached that privacy, it was justified by the public interest - because Mosley was engaged in dangerous and violent behaviour (which can be a criminal offence even if it's consensual).

The judge disagreed with them - in quite memorable terms, I think:

"As Woman D accepted, it was painful – 'but in a nice way'. Although no doubt interesting to the public, was this genuinely a matter of public interest? I rather doubt it."

Mosley vs. News Group Newspapers Ltd, §114

(It's important to note that this judgement doesn't remotely affect the right of the press to claim a public interest defence in future privacy cases. It merely states that in this case, the public interest defence wasn't applicable, since Mosley's sex life wasn't a matter of any public concern. I can't see any ongoing threat to the freedom of reporting.)

George Carey continues:

"Max Mosley claimed that what consenting adults do with each other behind closed doors—however depraved, brutal and repugnant—is both private and harmless. I think that is deplorable. And I believe most people would ridicule his claim."

Again: come off it. Of course it's private and harmless. It happened behind closed doors, between adults, and in the long run, nobody was hurt - at least, if people were hurt, then it wasn't serious, it was with their full consent, and they were clearly enjoying it!

Carey is trying to apply a Christian view of morality here, where there is a divine arbiter - God - who gets to decide what's morally acceptable and what isn't. The problem is, Britain is made up of people of all beliefs and of no belief. Many of them will disagree with Carey's views on morality, and those people shouldn't have to live under a legal system based on one man's (or one religion's) take.

The only appropriate way to construct our legal system is to criminalise things that harm others, and permit things that don't harm others. Yes, it would create a morally relative society, where actions are good or bad based on their consequences, rather than on anything inherent. Yes, that might sound unpalatable to absolutists like Carey. But the truth is, it would give everyone the greatest possible freedom to decide for themselves what moral code to follow.

"This is a bleak, deeply-flawed 'anything goes' philosophy. It is also dangerous and socially undermining, devoid of the basic, decent moral standards that form the very fabric of our society."

In the whole of Carey's total car-crash of an article, this is the bit I have the biggest problem with. Surely the most basic, decent standard that underpins our society is a fair legal system which applies equally to everyone. But Carey is calling for judges to selectively refuse to enforce people's legal rights because they happen to be into kinky sex. Denying people justice because you disapprove of their private behaviour is, to me, far more depraved than a bit of harmless roleplay with a bunch of hookers.

Mr Justice Eady puts it far more eloquently than I could hope to manage:

"It is not for journalists to undermine human rights, or for judges to refuse to enforce them, merely on grounds of taste or moral disapproval. Everyone is naturally entitled to espouse moral or religious beliefs to the effect that certain types of sexual behaviour are wrong or demeaning to those participating. That does not mean that they are entitled to hound those who practise them or to detract from their right to live life as they choose."
Mosley vs. News Group Newspapers Ltd, §127

Carey goes on (and on ...):

"The new High Court ruling prevents press investigations into matters of clear public interest. It needlessly shackles the press and removes the right of the public to make informed moral judgements."

This strikes me as pretty rich. He's spent the whole article so far asking for a particular moral code - his own one - to be granted special recognition by the law, and forced upon everyone. And now he's pleading for the right of the public to make up their own minds about moral issues.

Partly, this is the desperation of a someone whose argument is slipping away from him as he writes it - but mainly, it's the confusion of someone who doesn't know what he stands for in the first place. Carey claims to have a deeply-rooted, firm moral viewpoint, but this article demonstrates that his views are all over the place. There's only one consistent thread running through this litany of self-contradictory arguments: the desire to use the law of the land to hammer people that he personally doesn't like. The rest is just desperate scrabbling around for any reasonably-sounding argument that might justify this bigoted selfishness.

"Judge Eady's ruling may have made legal history. But I, for one, fear the consequences."

I say again. Why, oh why, is this man in our parliament making our laws for us? Sometimes, I despair of Britain.

Talking at cross-purposes about Sharia

When our most senior judge, the Lord Chief Justice, said about a week ago that British Muslims should be able to use Sharia law to settle legal disputes, he provoked a storm of controversy. "We've got a perfectly good legal system (or more accurately, set of legal systems) in Britain," people said, "and if Muslims don't like it, there are plenty of countries governed under Sharia law that they can go to instead." Many scared Britons seemed to think that a Sharia Act was on its way through Parliament, burkhas would become compulsory, and stoning introduced for capital crimes.

So much for the knee-jerk, gutter press reaction. The truth is a lot more mundane, and a lot less controversial.

What Lord Phillips is talking about is the use of Sharia to settle civil disputes. If two Muslims get into a civil case - an argument about money, perhaps - they have, like anyone else, three choices. They can settle it using the civil courts, costing themselves and the taxpayer vast sums of money. They can come to some sort of personal agreement outside of court, and let matters rest. Or they can go to a mediator, someone they can both agree on, who will look at the dispute and come up with a compromise settlement which both sides are then required to accept.

That third-party mediator could be anyone. Usually, it's a dedicated organisation or profesional problem-solver. But it could be anyone that both sides are happy with. And if both parties are practising Muslims, and if they both agree, then why shouldn't they ask a Muslim religious expert to resolve their case using Sharia principles? It's perfectly legal as things stand. So when you think it through properly, the Lord Chief Justice's comments aren't particularly radical - they're just calling for formal recognition of something which people are quite entitled to do already.

So why, if all of this is so mundane, has it sparked such a poisonous and heated controversy? The main problem in debating this issue is that we're talking entirely at cross-purposes when it comes to the word "law". To most people, a law means a legal rule, which everyone has to follow. As soon as you float the idea of Sharia law in the UK, people get the impression you're proposing actual legislation, which would affect all of us, whether we follow Islam or not. Or even worse - legislation which would only affect practising Muslims, creating a parallel legal system.

But a religious "law" is something quite different to a normal law. It's a personal, voluntary commitment made by an individual. For example, it's against the Jewish law (known as Halacha) to eat pork, and thousands of British Jews, including myself, follow that law. Nobody in their right mind would suggest that we're living in a parallel legal system by avoiding certain kinds of food. It's not really a law; it's more of a personal lifestyle choice.

One of the beauties of English Law is that, unless you're doing something that's actually illegal, you can do what the heck you like. That means that British Muslims are free to make the personal decision to follow whatever religious "laws" they wish, as long as it doesn't bring them into conflict with the actual law of the land. I don't believe Lord Phillips has said anything more radical than that. Unfortunately, the argument he has sparked off has degenerated into a comedy of misunderstandings, rather than a meaningful debate.