Happy Birthday to me 2012

My Walking Stick

You are very mischievious, my walking stick,
And love to play on me a trick.
I leave you hanging on the back of my chair,
And when I return I find you are not there.
“Now where’s my stick”, in desperation I cry,
And when I’ve looked everywhere,
I find you in a most unexpected place,
Fearing I have lost you, my heart starts to race.
For I cannot do without you.
Like a sword to a knight of old,
If I may be so bold, I rely on you, walking stick,
To help me over the stony ground,
And where other pitfalls abound.
So let it be just a trick,
I would hate to lose you my naughty stick.

Phyllis Jermy Deceased - my Grandmother

ADR the "Achillies Heel" of Democracy

We have all heard the terms "separation of the powers" and "Justice must be done and seen to be done". But do we really know why these axioms exist in civilised society?

Well the separation of powers is between law and politics. That is to say "natural law v posited law". Natural law is the little bit of reasoning (ratio decidendi) of a case precedent. Posited law is the rule of law contained in a Statute as made by the legislature on the back of the people (citizens/subjects of a country). Natural law is what the law "ought" to be and posited law "is" the law. Simple you might think from time immemorial.

Unfortunately, if the balance between judicial reasoning and legislature does not happen, then I argue, neither does democracy. Why, if no cases challenge or reiterate the rule of law at common law (case precedent) or as contained in a statute, then law stagnates and becomes political "is" law.

Assuming the will of the people is always adhered to then law "should" be "good" law to regulate all citizens. However, not all politicians are ultimately good and not all societies are ultimately good either.

Therefore, to unbalance democracy all you need to do is to prevent either Justice not occurring or the legislature to not occur. But it is not as simple as that. Justice is fundamental to democracy. Why, because "Justice" sets the standard of reasonableness to what the rule of law "ought" to be and this can occur objectively or subjectively via the equitable discretion of the judge.

In a democracy, the standard of reasonableness is determined to be equality, fairness, impartiality and justice. Therefore Justice is the "ultimate" and is "fundamental" to democracy. Stop "Justice" and you prevent equality, etc.

Currently in England & Wales, and America a Japanese concept called ADR (Alternative Dispute Resolution) is being contained "within" the judiciary and legal profession. It is being premised as "access to justice" and is contained in a Directive on Mediation which is going to impact on the Scottish and European legal systems, except Denmark who have abstained.

The problem with ADR is that it does the "opposite" and removes the case from the path of access to justice, where the parties may not experience equality, fairness, impartiality or justice. The difference is that the judge is never a mediator and the mediator is never a judge. As such, something is occurring to democracy that is being falsely premised, the issue remains – why?We have had "regimes", "regime change" and "change management" in the last decade within UK politics – from what to what? (Liberalisation!).

Now ADR is a Japanese concept and as such it is used culturally to "save loss of face". In Japan litigation is a "last resort" concept. Japanese culture is based on confidentiality agreements and gagging clauses covering up who knows what. Japanese society is therefore largely "hidden". This by contrast is not how Western society is, our courts are "public" and the light of day shines into its darkest reaches most of the time.

Anyway, I recently spoke to a Scottish mediator and he informed me "but 97% of cases settle without trial": therefore 3% make it to Justice and impact uniformly on society. Just 3% is necessary in order to ensure that British society exists as a democratic society where society is deemed to be civilised, safe and just. (I am surprised, maybe closer inspection needs to occur concerning this statistic!) Therefore why do ADR’sts want to have ADR "within" the judiciary and legal profession and potentially impact on 3% of cases that fundamentally must go the distance when ADR "outwith" the judiciary and legal profession and with freedom of choice and the equilibrium of the dispute market they have potential to access 97% of cases: that should be sufficient.If, 97% of disputes "settle" before trial, this presumably is why Woolf claims (1) equality and (2) access to justice. Settlement is potentially divided into judiciary ("traditional equality") and mediators ("contemporary equality").

Either the judge decides or the parties decide the outcome of the dispute. Therefore contemporary equality is 99:1; 60:40; [50:50]; 30:70; 1:99. The fact that it is possible for traditional equality and contemporary equality to be 50:50 presupposes that mediation does have some "good" quality, howsoever, unlikely the parties will settle on this outcome may be in reality. With mediation there is disempowerment especially where psychological techniques are used: "gold will be left on the table" – there must fundamentally be a benefit to all parties – win/win rather than win/lose via the judiciary. The difference is that judicial equality provides compensation (monetary value), mediation may provide redress, ie the remedy may have a different weight.

As such, I advocate the "Competition model" for Scotland and Europe:Judges, lawyers and barristers NOT permitted to practice ADR – because their sole role in society is to uphold the rule of law!A professional body of mediators akin to the Law Society/Bar CouncilA mediation centre in every town/city where there currently exists a courtThat is to say, that the competition model would separate litigators from mediators. The market would determine who got the disputes and in what percentage on the basis of freedom of choice. ADR would exist in a democracy and so would the rule of law.

However, of concern to me is how ADR is being processed in society. The English & Welsh model was processed by the Woolf Report which became the Access to Justice Act 1999 and CPR Rule 26 processed ADR "within" the judiciary. The Woolf Report stupidly in my view informed "litigation will be avoided whenever possible" ambiguously in a report entitled "Access to Justice" (Annex 1). Therefore it is clear that something intellectually was deficient concerning the processing of ADR within English/Welsh society – or was it? If we are being "change managed" to some other political state then the judicial and political elite would be acting deliberately rather than inadvertently.Furthermore, the Scottish Executive have been processing the Directive on Mediation at European level. A consultation paper on the subsidiary principle via Arlene McCarthy MEP saw 2 out of 27 published responses interviewed and as my response proposed the Competition model and was not therefore the proposed model, it was perhaps biased or prejudicial to not also interview me on the premis that you ought democratically to interview for and against your proposal. 5 further "experts"! were also interviewed, effectively rubber stamping an already settled outcome.Therefore, it would appear to me that I am making the case that "democracy" is being dispensed with politically as well as judicially. – because of ADR - Why?Surely, there is a need to take a step back and look at the models (do an evaluation) – English & Welsh, American, Japanese and for good measure the Danish before impacting on Scotland and Europe.

So to recap – ADR is the "achillies heel" of democracy because:

It is being processed as something it is not and never can be because it is "opposite" to Access to Justice, ie Access FROM Justice: compromise.

It upsets the finely balanced mechanism between natural law and posited law and if judges do not "reason" then society stagnates in a political quagmire.Even the political domain cannot process a consultation fairly proving that "standards" in society have subsequently lowered.

ADR "undermines" the rule of law because it gags society at the individual level and prevents law being uniformly applicable.

The Japanese process ADR as a cultural feature to their society, we are processing it because it is cheaper and quicker than litigation (not necessarily true) – so revamp the litigation process to the 21st Century using IT! and "improve" on a 3% statistic.

Do you want to exist in a safe and just society – with ADR contained "within" the judiciary – just what society are you expecting? What should the international symbol of "Compromise" look like?

1 - Access to Justice Table re Woolf (worth downloading)

References:http://www.dca.gov.uk/civil/final/contents.htm

Woolf Report - Access to Justice

http://www.europarl.eu.int/comparl/juri/consultations/default_en.htm

Published responses to the Consultation Paper on the Subsidiary Principle concerning the Directive on Mediation 2004 718 http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=191867

Lesley Diane Mcdade (Miss) 29/10/2007

Merry Christmas - 2011

The Face behind the keys

Is a genie hiding in my typewriter?
Or a gremlin, or imp, perhaps?
I can see him grinning, the cheeky blighter,
And hear him mock between the taps.

If not an imp, or gremlin, or genie,
- A Leprechaun or other sprite,
Whom does it belong to, whose face do I spy
Peeping at me with eyes so bright.

Come out little man, elvin, troll or whatever,
You’ll get hurt as I bang the keys,
We’ll write some poems and stories together,
Come out, come out, little man, please.

Phyllis Jermy Deceased - my Grandmother

Supreme Court or ECHR for Scottish Cases on Appeal

There is a debate raging this month about a Scottish criminal law case being heard in the English Supreme Court even with two Scottish judges sitting. The argument is that the High Court of Justiciary in Edinburgh should be the final appeal court for such cases and thereafter they should go to the European Court of Human Rights in Strasbourg. I tend to agree.

Earlier in posts I argued against the need for the Supreme Court at all in British society. Most cases should be done properly first time with it being rare for an appeal. Moreover, there should be greater scrutiny of appeals on the premis that the judiciary are deliberately getting cases wrong which is corruption (being a perversion of the course of justice and criminal offence), not a miscarriage of justice which requires a lack of evidence or judicial inadvertence. There needs to be greater accountability as human rights is an "Ivory Tower" making lawyers and barristers wealthy where the system has effectively broken down ie the judiciary are causative necessitating an ECHR appeal. This needs to be monitored more closely and proper training given to the judiciary.

So I am with the Scots on this issue but find the whole issue of Nat Fraser's case somewhat bizarre given Lord Hope of Craighead was presiding in the case and presumably did not have leave to appeal from the High Court of Justiciary - Lord Hope of Craighead refused to sit on my case in the House of Lords, along with Slynn of Hadley and Hobhouse of Woodborough causing a miscarriage of justice as the case before him was premised on a perversion of the course of justice in the Employment Appeal Tribunal - the judgment fails to cite five case precedent, legal arguments and evidence yet bizarrely you can only appeal on a point of law. However Lord Hope of Craighead failed to notify the other judges of his work with the Worshipful Company of Information Technologists and lack of impartiality to Professor Richard Susskind OBE who is also a member and whom I was suing and is the reason for the perversion of the course of justice. Richard Susskind is IT Adviser to the Lord Chief Justice. I did not have leave to appeal from the Court of Appeal but appealed anyway on the premis the Woolf Reforms were implemented and therefore "Access to Justice" must include the House of Lords making blocking case law Lane v Esdaile obsolete. Prayers were also bizarrely said twice firstly by the Bishop of Derby and then later by the Bishop of Birmingham. Lord Hope of Craighead's stance on my case was also at odds with a website forward he wrote for Glasgow University where he wrote that he believed in access to justice! I did not bother with the European Courts of Justice as there was a four year waiting list, however, the key documents are logged in my current case before a Master of the Royal Courts of Justice in London, so there may yet be an outcome of sorts as minor relevance to that case albeit that case is stayed with a deliberate human rights abuse on it already and should be in the criminal courts on a perversion of the course of justice ticket against the judge. If justice is done properly and objectively then there should be no need for article 6 human rights abuse cases largely caused by the judge and should really go on appeal to a criminal court for perversion of the course of justice rather than be dealt with as a civil action or at least rarely dealt with as a civil action for reason of lack of evidence or inadvertence of the judge.

Some short comings of the Human Rights Act 1998

The legal debate this month has been between the right to privacy and freedom of expression which appear to be in conflict within the judiciary in the last year. Judges of a sudden are granting super-injuctions which mean that nothing can be reported in the press and media streams guaranteeing a right of privacy as enshrined in the Human Rights Act 1998. The super-injunctions have been used by the rich, they are allegedly expensive to obtain, and are being used to cover up extra-marital activities by those who are already in the public domain and don't want press intrusion.

But it seems to me that there is a complete misunderstanding of the role and function of the judiciary. Litigation is the "public" application of the rule of law. Arbitration is the "private" application of the rule of law. Therefore, the Human Rights Act 1998 should balance the right to privacy over the right to freedom of expression, only if a case is brought as an arbitration. Simple. Litigation should fundamentally fall down on the right to freedom of expression because the judiciary are "public", not private.

However, there is a very serious problem with the Human Rights Act 1998 which has yet to be aired and that is article 6 the right to a fair hearing. Only a judge can deprive you of a right to a fair hearing and when that occurs it is either that a miscarriage of justice has occurred (which requires a judge to act inadvertently or there is a lack of evidence) OR the judge acts deliberately which is corruption. That is to say that it should be very very rare for a miscarriage of justice to occur. Where a judge deliberately abuses his / her power and an article 6 hearing occurs on appeal then the judge should be prosecuted for perverting the course of justice, which is a serious criminal offence and/or misconduct in public office. That is to say only if a judge acts inadvertently or there is a lack of evidence should an article 6 appeal be necessary. Judges should not be above the rule of law.

Another very serious human rights abuse is in mental health law. All that is needed to place someone into a mental health hospital is a justice of the peace signing a document called a warrant under the Mental Health Act as requested by a psychiatrist and mental health officer (social worker). A person loses all of their rights and must APPEAL the justice of the peace's warrant after 28 days where they can be treated with god knows what medication against their will in the interim period. The current system prima facia removes a persons human rights altogether for at least 28 days when it should be necessary for the person to be present and put arguments if they wish when the warrant is issued to send someone to a mental health hospital for treatment. No one should be treated without first having their fundamental human rights asserted in law and a right to a fair hearing should start at day 1 minute 1, not 28 days later. At 28 days an APPEAL is possible, however, there are abuses of the system whereby an appeal is not done when requested at 28 days but a "Compulsory Treatment Order" is sought for a further 6 months and an APPEAL of the CTO is done, thereby abusing a persons human rights to a fair hearing under article 6. That is to say an appeal does not occur of the 28 day detention but the 6 month detention - it should be necessary that article 6 hearings cover both periods of detention - but the system is currently lax at 28 day appeals. Mental Health law is not currently complaint with Human Rights legislation and is open to abuse.

These are some blue sky thinking for reform of the human rights act 1998 which may mean the European Court of Human Rights having less of an impact on British justice.

No win, no fee conditional fee arrangements

Kenneth Clarke MP, the new Justice Secretary is to reform no win, no fee conditional fee arrangements. An interesting article is published by epolitix.com: Article on 29/03/11 in www.epolitix.com entitled "Clarke to reform "no win no fee" cases" (Click here)

I have recently been approaching law firms for a CFA to do my case which is stayed in the Royal Courts of Justice, London. The judge is insisting that I have a litigant friend and the case has been stayed for 4 years now with the Official Solicitor for England & Wales being requested twice by the judge to act on my behalf, both times her [Samson-Tandoh] refusing to do so allegedly latterly because of the Woolf Reforms.

Ken Clarke MP has made several recommendations : "Clarke said he will seek legislation to restore the fundamental values of civil justice and attacked a system where legal costs often outstrip compensation payments. He called the current situation "unparalled in any other country". "We plan to end the recoverability of success fees and insurance premiums, which drive legal costs, award claimants a 10 per cent uplift in general damages where they have suffered loss, and then ensure that they take an interest in controlling the bills being run up on their behalf by expecting them to pay their own lawyer's success fee," he said. Shadow justice secretary Sadiq Khan said it is difficult to disagree with reforming civil justice, a process that the last Labour government began. He said that while he accepts the costs of civil cases should be reformed, all people should have recourse to the civil courts. He said that the poor already have trouble finding a lawyer to act on their behalf and these changes may exacerbate that situation. "There is a fear that these plans go so far in trying to keep down costs that some claimants with meritorious cases would find it difficult, if not impossible, to find a lawyer to take on their case," he said.

...

There will be a consultation on other plans to improve how court judgments are enforced, so that people receive what it is judged they are owed, as well as introducing automatic referral to mediation in small claims cases, or mediation awareness sessions in higher-value cases, to help people avoid court where possible. Clarke wants to raise the small claims limit and to change the county court jurisdiction so that the High Court is used for bigger and more complex claims only".

What Ken Clarke MP has failed to encapsulate is that people can do their cases themselves as a litigant in person. I know that I prefer that opportunity. It keeps costs down to court costs only which are realistic. Given a judge of an Employment Tribunal has said that I am to be treated as having the expertise of a practising solicitor, I see no need for the judge's current stand on my case which is pure prejudice in forcing me to consider no win, no fee conditional fee arrangements. I don't particularly want to trawl round solicitors offices seeking a CFA and to date I have had no luck with those firms advertised on television.

Do I have a case - yes - I have a psychiatric injury as a result of prolonged exposure to stress caused by my employer who "knowingly" had no clients or calibre client work for 2 1/2 years resulting in me having to fend for myself for work in a top 20 London law firm [S J Berwin & Co]. I was eventually dismissed for using an abusive word in an email (there using retrospective rules so as to dismiss and the word being in the Oxford English dictionary and meant to be used) when I notified marketing that fabricated information was in Chambers Directory that my boss [Julian Critchlow] was a "leading individual and thorough" when he had no clients! My reference upon being sacked was that I was "honest with integrity".

I had whistleblew my contract of employment at a whistleblowing lecture. I had raised complaints about my bosses and had "informal chats" which were bizarrely dealt with as "informal disciplinary hearings". There was a sick note on my file stating "stress" to which they said "should we get counselling", none received and did nothing about, not even to discuss my situation in the department.

The court require me to show that (a) there was a breach of duty of care - sick note should do and (b) that it was foreseeable that a psychiatric injury would occur - in such a negative state of affairs over 2 1/2 years yes it was foreseeable especially indirectly via performance figures - every 6 minutes of a fee earner's time is recorded as 6 min = 1 unit to chargeable time or non-chargeable time to a value of at least 70 units per day. Someone collates this information which presumably is seen by the Senior Partner for the entire department and personally for each person at the end of the month. Mine make interesting reading especially in comparison to my male comparator, Elie and also a temp, Solomon. What was my line manager up to - not looking out for my welfare in the firm in any event!

So, whilst I am looking for an CFA, perhaps Ken Clarke MP could assist by taking a little look at the Woolf Reforms which cut the link which the judge in my case has been trying to create with the Official Solicitor, or just cut the nonsense altogether and let me get on with the case as a litigant in person and worry about the costs as they arise.

Respondents are currently hiding behind the skirts of the courts and have "agreed" with the judge upon his request to the passing of a piece of paper across the desk signed and dated which is contrary to human rights legislation and article 6 in particular, the right to a fair trial, implying a conspiracy exists with this nonsense of a litigant friend between judge and respondents - he could equally have insisted on mediation between the parties, but I have already suggested it (because of the Woolf reforms) and they don't want to do it preferring to hide behind the skirts of the court instead. I have been stayed for 4 years now, unless my Consultant will agree there is no need for a litigant friend whether a patient or not a patient then I don't know when I will get Justice let alone access to justice.

It's not like I don't know what I am doing or what I am up against and Respondents' solicitors have surely run out of dirty tricks by now as I lost a sex discrimination action with the judge preferring respondents' evidence even although they had lied and evaded in witness statements and attempted to prevent my evidence being seen by the court by removing discovered material to an agreed court bundle, necessitating a disagreed court bundle on the first day of trial. The performance figures show that sex discrimination did actually occur as delivered up by respondents' solicitors and that less favourable treatment is a material factor in my personal injury and professional negligence action currently before the Royal Courts. One of my bosses [Nicholas Carnell] did 11 pages of holiday notes showing no active client work on any client file bar one which was settled while he was away on holiday leaving him with no client work, the other boss [Julian Critchlow] simply had no client work for which I assisted his orchestration to the PFI Group where he still gave me no work at all. I had no difficulty working for the Environment or Advocacy Departments! So the liability is not with me. Why respondents' solicitors don't want to settle is a mystery but right now the judge's stance on this case is a gift to them ...

If anyone would like to be a litigant friend or offer a realistic conditional fee arrangement on a no win, no fee basis kindly contact me via email at the top of my blog ... I would however prefer to be a litigant in person in control of my costs, with a judge in control of his courtroom on the premis of equality before the law ... I currently feel most "UNEQUAL" and should not have to find my own litigant friend if the court are insisting on it without just cause.

Community Reparation - community payment

Scottish Government website article "Fast Track Justice" on 31/01/2011 (Click here)

The above article is a very positive initiative by the Scottish Government which has created a pilot of a fast track post-court procedure for low-level offenders to repay their crimes by involvement in a community payback work squad.

Justice Secretary Kenny MacAskill said:

"Punishment should be tough and justice should be immediate which is why we are piloting this new initiative. The aim is to get these low level offenders out doing manual work to improve communities within hours of being sentenced.

...

"The facts speak for themselves with three quarters of those sentenced to a short prison sentence of three months or less going on to reoffend within two years of getting out, but in direct comparison, three out of five given a tough community sentence do not."

Recent statistics show that 33,707 hours of snow clearing were undertaken by low level offenders during the recent adverse weather. On average there were 1314 offenders on community service out every single week across Scotland helping payback to their communities by clearing snow.

This is a very good initiative and shows that crime does not pay and that the scheme is already working. Hopefully the Justice Minister will keep us all regularly appraised of this pilot and the ideas that offenders could do in their communities as reparation and community payback. A vast improvement on a prison sentence as it costs £31,000 a year to keep a prisoner in jail, there is no doubt a cost reduction which could facilitate this scheme's harmonisation within communities. An initiative to watch ...

More Mediation for Employment Tribunals

Legalweek.com published an article

"Government Unveils Controversial Employment Tribunal Reform" by Claire Rucken on 27 January 2011 (Click Here)

I was surprised to see the word "Controversial" in the heading of the article - so there are others out there who do not agree with the reforms!!!

Most employment law is based on contract which in England & Wales is common law. Most people honour their contractual obligations but sometimes there is a dispute and breach of contract ensues. For some, myself included, wrongful or unfair dismissal is actually a defamation by the employer and I personally felt attacked by the law firm and by the judicial system. If everyone thinks they can breach their contract and mediate a new contract then standards will lower.

I was sacked for refusing to transfer by Professor Richard Susskind. My contract disciplinary clause was in operation because the firm had made three spurious allegations and upheld one in a kangaroo court disciplinary process. So it was lawful to warn or sack but not transfer. I have no knowledge of a conversation with Anne Glazebrook about a confidential memo left by Cathy James in the public network directory (so sack Cathy, which they didn't stating she is valuable - why and was I not valuable too - I was complying with company policy having confidential directories! I do however recall conversations with Catherine Johnson about the confidential memo as she told me about it). I don't know when and where or even why I would have a conversation with Anne. I had only had three conversations with her in a six month period so it would have been abnormal for me to speak to her on a fourth occasion which should have meant I would remember it. At best she was pretty vague in her own recollection of events during the disciplinary hearing and the firm were relying on impression and suggestion sourcing from Catherine's boss Andrew Blunderfield - Anne did like to sit in his room gossiping as they were chums from a previous firm. I was in the middle of my second year LLB exams sitting 3 hour disciplinary hearings instead of doing exam revision - it has had a detrimental effect on my LLB performance albeit I still got my four year degree with Honours. However, I am not a practising lawyer or barrister or legal academic or indeed still working in law, I am not even still working.

Mediation was just coming into the system when I was sacked in 1994 and I had previously written my first LLB essay in 1993 for Dr Lindsay Farmer on the subject in Legal Systems and Legal Methods in English law marked (down) at 50% - I was 100% accurate I believe. Why it is relevant, Masons (the law firm) and Professor Susskind and others engaged in corruption rather than settle the case out of court - there is no need for mediation really!!! - at the courtroom door will do just fine. They engaged on a path of (a) perverting the course of justice and (b) misconduct in public office via the judiciary.

Employment Tribunal - Mr De Saxe
Employment Appeal Tribunal - Mr Justice Morison
Court of Appeal - Mr Justice Peter Gibson and Mr Justice Mance (now Lord Justice's)
House of Lords - Law Lords, Slynn of Hadley, Hobhouse of Woodborough, Hope of Craighead

Parties involved at Masons were Cathy James, Siobhan Cross, Anne Molyneux, Neil Biggs, Tony Bunch dec'd, Professor Susskind, Bruce Carr, Michael Ford*, Sean Brannigan and possibly others linked to my next employment - law is thicker than thieves and it is a little village.

*Michael Ford was my witness and failed to attend; a complaint to the Bar Council concerning Ford, Carr and Brannigan involving Geoffrey Robertson QC and Jeremy McMullen QC created two stories from Ford and Carr - one appears to be telling the truth while the other evades and is lying. The Bar Council would not go further on the matter where it was apparent my witness was nobbled or nobbling without my knowledge!

CID Officers Davies and Sheridan of Southwark Police were asked to investigate but no one has been investigated or charged to my knowledge and belief.

Raising the action over a period of about 6 years and to gain nothing but corruption and a lot of knowledge about how they process law procedurally and substantively - and to do most of the corruption it was procedural (ex parte preliminary hearings and application hearings to remove the case from "ACCESS TO JUSTICE" and not dealing with CAUSATION but using the system to sidestep it).

Mediation came into the UK legal system in 1997 via the Woolf Reforms which became the Access to Justice Act 1999. My court case above shows the methodology used to corrupt a court case establishing that the Woolf Reforms were merely New Labour Government spin in the legal domain ... they were actionally DOING "Access FROM Justice". The theory and the practical meet up on this point. And so does Lord Woolf and Professor Richard Susskind who was IT Adviser to the Lord Chief Justice. Small world or little legal village at this level. I certainly did not get Access TO Justice even although I managed to get to the House of Lords level by sheer determination and intelligence not matched by the judiciary at all.

So, you might think the PARTIES would be delighted with the reforms being proposed to the Employment Tribunal - why spend all that time outmanoeuvring each other and going corrupt on the case - it is absolutely certain that the LDM v Masons action was corrupt: Mr Justice Morison's judgment does not include 5 case citations in the appeal document with arguments, nor the one case citation and ratio decidendi read verbatim on the day in court, nor legal arguments, nor points of evidence. You can only appeal ON A POINT OF LAW and the 5 case citations were Respondent's Counsel (Carr) in the lower court. Oops. both (a) and (b) above made out. (Gaelic proverb: in a Raven's nest you should find a raven). In a judgment you should find a point of law.

Maybe I just saw the worst of the court system and the stress and distress it can cause, but I still would not advocate more mediation, I would advocate that the system be seriously looked at and all the nonsense got rid of including ex parte hearings and skeleton arguments and procedural nonsense that delay the case plus more judges. In today's 21st century technology it would be quicker to create a public system that uploads the documents in the pleading and evidence. Having public access to the case for the duration of the case would surely have some impact on the parties wanting to settle at the courtroom door. [On this blog I have uploaded the Masons case in its entirety concerning pleadings but not evidence]. All cases follow the same framework anyway, so it is entirely possible to lead the case via technology. Most cases are quite small anyway and mine was three lever arch files in total - so quite small in the scheme of things, most will be smaller.

Uploading documents would also mean there is less need to charge a fee. What you want is employers with good employment practices and you are not going to get this if you can COMPROMISE the application of the rule of law via mediation. What you want is employers to learn from the experience of a Tribunal so as to treat their workforces properly and mediation is not going to be a deterrent. Employers are still going to be handing over money to claimants, albeit "gold will be left on the table", perhaps not so much money will be paid out.

Also bear in mind that (public) litigation is the only way to legally put private domain information into the public arena. This is a necessary methodology especially in the face of the recent Wikileaks debacle. All documents in a litigation are public domain. This should therefore be a reform focused on so as to be a deterrant on employers.

It is a myth that mediation is quicker and cheaper than litigation. There will still be the same number of disputes in the market, but the difference will be whether it is mediated or litigated or arbitrated.

Hence I advocate lawyers, barristers and judges should not be involved in mediation at all. Mediation should exist in its own territory and freedom of choice should dictate where the dispute is raised even although you can still litigate on the failure of a mediation. ie either traditional (court) or contemporary (mediation).

What is important in society is the application of the rule of law. It makes us safe and just. No street justice then. Standards are meant to be maintained and raised not compromised.

As law impacts universally, it should be possible to process cases in two categories (a) those that reiterate what the law is and (b) those that challenge the status quo.

There is no reason why Employment Tribunals could not exist as call centres styled courts with judges who do category (a) cases and judges who do category (b) cases which are harder to do.

And there is no such thing as a vexatious litigant - everyone, especially via human rights legislation, has a right to a fair hearing. The employer has to win sometimes.

Concerning myself, I offered Respondents on my second litigation the opportunity to use mediation, I made the mistake of being one day out of time to sue in litigation based on court personnel giving me dates, luckily I was permitted to sue for sex discrimination but lost the case due to the nonsense that Respondents pursued on the case and not doing discovery properly or at all and removing my evidence from the agreed court bundle necessitating a disagreed court bundle. Sex Discrimination did actually occur and performance figures prove it 100%. However, the judge preferred my bosses evidence even although one of them was evading and lying in their witness testimony. The judge also refused to call two Respondents for cross examination even although they are cited on the case and failed to produce witness statements which would have established one of my bosses was lying. You don't expect judges to be lax with the procedural rules.

Employment Tribunal : Chairperson Ryan

Parties S J Berwin & Co, Julian Critchlow, Nicholas Carnell, Ian Insley, David Harrell, Keith Wood, Tim Pullen**, Marie van der Zyl and Susan Kelly, Alison Parker, Paula Jefferson

**Tim Pullen has been using his Godolphin Chambers address on legal documents but actually working for Geoffrey Robertson QC's Chambers, Doughty Street. He may have a conflict of interest for which Respondents have been notified but failed to apologise for - its a little legal village - see * above.

However, I am currently stayed in the Royal Courts on a personal injury and professional negligence case against the same Respondents above as being treated less favourably caused stress which was an aetiology trigger to personal injury. The judge requires me to have a litigant friend even although I am not entitled in law to one according to the Official Solicitor for England & Wales on two occasions. Such nonsense is at the behest and behoof of the judiciary - why can't they just get on with the substantive case and stop messing about with two years to date of procedural nonsense and a 4 year stay!

Queen's Bench Judge : Master Leslie

Parties: S J Berwin & Co, Julian Critchlow, Nicholas Carnell, Ian Insley, Tim Pullen, Alison Parker, Paula Jefferson

Mediation looks awfully good idea to me just now, but Respondent's KNOW they are at fault, so settlement at the door of the court would be more opertune rather than a need to mediate. Employers don't want to settle I think. Besides mediation is only privatisation of the judiciary and legal profession. Lawyers, judges and barristers should be about "application of the rule of law" - that is why they study law. Mediation is rightly about compromise but it also hides the dispute by gagging it in confidentiality, ie privatises the dispute by covering it up. Currently lawyers, barristers and judges are doing both jobs. Litigation and arbitration are polarised concepts to mediation - they should not be processed in the same system as one undermines the other. They are naturally opposites and always will be on essence.

Now, should I adopt an attitude of not caring less anymore ...

WHY COMPROMISE WHEN YOU CAN SETTLE OUT OF COURT! ITS NOT ABOUT COSTS its about justice ...

Happy Birthday to me

Birds

A graceful movement across the sky,
It is a seagull passing by,
Touch of cream and fawn, orange and brown,
A house sparrow comes flying down.
Fluttering into the sky so blue,
A lark is hiding its nest from view.
With neck out-stretched a wild duck streaks
Vanishing amongst the mountain peaks.
A pigeon coos, likewise the dove,
Nestling close to its own true love.
In the wood the nightingale’s song
Rises and falls, all the night long.
The owl hoots, tu-whit, tu-whit-tu-whoo.
Pheasants call and the cuckoo, too.
Robin, bright of eye and breast, is brave,
Loving a fight, the naughty knave.
That lovely songster, the missel-thrush
At even bids the world to hush.
Bird species are many, these but a few,
Hark to their chorus as dawn breaks through.

Phyllis Jermy Deceased - my Grandmother

Merry Christmas - 2010

Robin All-Alone

Why are you always on your own,
Robin Redbreast, Robin all-alone?
Perched on my fence you sing your song
With bright eyes watching other birds throng
In twos and threes and sometimes more
To eat the crumbs outside my door.
When they have gone you have your fill,
Then you sit on my window sill.

Robin Redbreast, Robin all-alone,
When Spring comes and the snow is gone,
Perhaps you will bring your lady love
And build a nest in the tree above.
Or in a crevice, or old tin can,
A rusty kettle, or rusty old pan.
Then I could watch your young all day,
Until they learn to fly away.

Phyllis Jermy Deceased - my Grandmother

Community Service

Low level offenders doing community service are assisting vulnerable people in Scottish communities by clearing pavements of snow and ice for elderly residents so they can safely get about.

Well done - good initiative.

Freedom - Aung San Suu Kyi

Congratulations to Burmese democracy leader Aung San Suu Kyi and Nobel Peace Prize winner. Yesterday she received her freedom after spending more than 15 of the past 21 years under house arrest.

She said: "If we work in unity, we will achieve our goal. We have a lot of things to do."

And Well Done to the Burmese Government for having the strength to make this happen at this time.

China and the Press and Human Rights

I recently did one term of a one year journalism course and post below one of my essays in feature writing on China. With David Cameron rightly raising the issue of human rights in China on his visit yesterday and today - we are a democracy - I do wonder at the difference in the press whereby the Chinese put out a story and that is what it is and no further report is done. Contrasting our press putting out a story under the Blair administration of "spin". Who then is democratic or at all.

Lesley McDade
01.10.09
Outcome 1 Assessment – Feature : China

A feature article is an article of interest which may raise an important issue in society and is written in such a way that you want to read it due to the hooks and that you enjoy reading it because it is well written and delivers the information you were intended to receive in a manner that assists you to garner the message and the information. Feature articles can be about anything so long as they are in a language that you as the reader understand and can be small or long. I compared a broadsheet (compact) and a tabloid article in relation to China, both articles reiterate the message TRADE with China – the broadsheet is relative to Iran which is also topical and basically notifies we are not engaging in attack Iran rhetoric, we trade with Iran for a reason which we prefer. The other article pretends to focus on militarism but does not actually do this but relates to TRADE. Both articles therefore send out the key message that China seeks the world to acknowledge and accept we do not assist on military prowess which is for show, we do so only in relation to TRADE. Analysis of the articles content below:

China has become topical this week. A small article appeared in the Scotland on Sunday by Tania Branigan on 27.09.09 concerning diplomatic relations with Iran and the huge topic of trade. The article was very small, but very informative – the Chinese do “TRADE” not war and prefer DIPLOMACY as a solution over sanctions. There are supportive statements to hammer this point home UN Security Council, Vice Foreign Minister He Yafei said on Friday “Personally, I don’t like the word punishment”, thereby reinforcing the nature of the article peaceful trade and the reality issue : “China is the world’s second largest consumer of crude oil while Iran has the world’s second largest reserves …” You would not want to take the bread off your plate now would you.

As they say, when China sleeps let her sleep …

In the Daily Mail 01.10.09 the story has become a screaming headline “Marching to World Domination” with supporting militarised in unison “Might” photograph. The underheading reads “An Army of 2.25 million. Chilling Imperial ambitions … and so on. So you would expect this eye grabbing headline to be an article that you may not survive the night and would be lucky to be awake tomorrow morning. Not so, the article is all about TRADE - it even manages to inform about goods that have the label “MADE IN CHINA” thereby establishing the whitty essence with a hint of knowledge and that the actual headlines are actually only meant to make you read the article – which of course you did, all of it!

You may, like me, have got the message after the first half column and was expecting the outcome at the end of the article to be … “the next invasion is due at Christmas”.

The whitty essence of the article drew out some “only Britishisms”:

The Chinese were “peasants” in fact it clearly elaborates with the euphemism “When the Communists seized control in 1949, China was a poverty-stricken basket case, … the mind boggles given they are fundamentally known for their inherent “wisdom” – Confusionism : the person who moves a mountain starts by taking away the little stones. The mountain I suspect is trade fuelled by diplomacy as needs must – oil.
Interesting information is available – the Chinese are the largest number of mobile phone users and broadband consumers – but there is a lack of statistical data to back this statement up. Even more interesting is China is the biggest acquirer of foreign public debt – why is the obvious exclamation? So we can buy more of that trade I suppose. It even notifies that China owns America not quite … only a “hold over” the American economy at $800 billion of US Treasury securities – which clearly makes you think – and our situation is?

We are then informed that these so called Chinese peasants … have for CENTURIES led the world economically, culturally and technologically: thus reiterating the whittyness of the article to the picture to the headlines. It even, whittly refers to China as “The Middle Kingdom” the worlds most cohesive and enduring society, WHICH PIONEERED not just the compass, gunpowder and printing, but porcelain, paperback books and a medieval postal service that would put today’s Royal Mail to shame.

As this point you just want to buy your ticket on the next flight to China to see it for real, which is then scoped into the article on a “multi-culturism and ethnic diversity” journey across China all highlighting TRADE issues. Any issue of need of military might is not with us but potentially anyone who will NOT trade with them or can compete on better terms. They are now in India and Africa – which raises the issue how good is our TRADE relations at the moment with the rest of the world – should we be talking to China - nicely.

Any militarism is occurring by the arms sale by China to Africa and Robert Mugabe received £200m in Chinese military aid – well if you can’t sell Zimbabween’s Christmas decorations …

The final wit sees a huge capital letter “Meanwhile” and in anticipation of the “M” signifying might, it informs a non sequitur … “China itself is well on the way to becoming one of the world’s dominant military powers. Already its standing army alone has more than 2.25 million men”. Because of Confusionism the Chinese only want to do peace because that means they can trade which means reciprocity and food for their people. Any military prowess is for photographs only. The Chinese know they do not need guns to be world dominant! They are not “becoming”, they “are”. You just would not want to pick a fight to find out – how, why, what, when, where. This is reinforced by the Statement by Defence Minister Liang Guanglie who BRAGGED apparently that the parade would “DISPLAY THE IMAGE of a military force, a civilised force, a victorious force” whilst laughing all the way to the bank … Christmas is profitable this year …!

Whew, when you read on … “Whenever Western observers voice disquiet about this terrifying military build-up, the Chinese INSIST that they have no hostile ambitions, or merely put the complaints down to racist scaremongering – you just would not want to cancel Christmas.

An interesting statistic follows the oppression, the suppression, the repression – by 2010, the Government predicts, trade between Britain and China will be worth more than £35 billion to the UK and if it all goes wrong families in Birmingham will suffer just as much as the Chinese. Makes you think.

The reality check – naively swallowing the propaganda of an authoritarian regime machine – you are just so glad you read this article, hence follows the warning for future generations make sure you buy into the “Made in China” TRADE on the premis of reciprocity. The only area of improvement in China today is “environmentalism”, somehow they got that bit wrong.

Both articles one short and one long, reiterate the important global message TRADE WITH CHINA there is a deafening silence in relation to Christmas, but both articles let you know that militarism is not the big issue concerning China – let her sleep whilst you go shopping. There are no buttons to push concerning Iran, America, Japan, India, Philippines, Tibet, Taiwan, Africa unless that is you don’t trade!

End
Sunday Times article 27.09.09 by Tania Branigan “China reluctant to force new sanctions”
Daily Mail article 01.10.09 by Dominic Sandbrook “Marching to World Domination”

On a human rights issue is Di Yimin still alive - she was last reported on LegalWeek as being on death row. Di Yimin was the front of the Chinese Ponzi schemes, remember America (Madoff) and India (Raza) also brought down global banking. Perhaps Sir Philip Hampton, Chairman of the Royal Bank of Scotland, and Peter Sands, Chief Executive of Standard Chartered, should raise more civilised issues of the Chinese Premier, Wen Jiabao, not least because RBS people were involved in the ponzi schemes (whilst educated and trained) and banking crisis rather than using their trip to hijack UK banking further.

Procedure

In a recent Daily Mail article (02/09/10) Lord Hamilton, Lord President, jumped on the bandwagon of reforms to suggest the legal system is riddled with needless delays and is a waste of taxpayers money. The delays are caused by courtroom inefficiencies and the churn of cases "adjourned" because of blunders.

Why is court management seen as problematic? It would appear that there are "spurious attempts being made to delay justice".

As Lord Hamilton has direct charge of managing the courts he is highlighting the scale of the task he is facing as he tries to wipe out deep-rooted inefficiencies. Requests for adjournments appears to be key linked to lack of case preparation or timeous witness testimony being taken. However it is unclear from the article which appears to focus on the criminal justice system whether civil justice is included in his rounds of inefficiencies. The article establishes that three out of four cases are now being disposed of within 26 weeks (ie approx 6 months) in the criminal justice system which he says shows the criminal justice agencies are working harder than ever to ensure justice. Good news.

It would appear to me that the matter is quite easy to resolve. In the earlier stages of this blog's posts is posted a whole court case in the civil courts of England from Employment Tribunal to House of Lords. There are key stages in any PROCEDURAL SYSTEM that have to be met. Any delays could easily be dealt with electronically, ie an electronic contempt of court and fine of a party to litigation (civil) or (criminal). My case is electronically loaded to a file server but I could load it directly to this blog via a pdf system - the courts are supposed to be "public" after all and my blog's posts show the extent of the corruption that I was subjected to by the judiciary and respondents (none of which was dealt with by the police upon several requests to do so for perversion of the course of justice). With contempt of court orders there is a fine line between deliberate delays by parties to a case being processed for perversion of the course of justice. Lawyers are wily in their ability to delay a case unnecessarily which goes against the principle of "equality before the law" not after it. (I have a case in England which has been stayed for 4 years because of the respondents machinations with complicity of the judiciary for which again the police will not deal with matters as perversion of the course of justice, nor has it been dealt with on appeal either). Judges are not "beyond reproach" and can be processed for misconduct in public office just the same as anyone else albeit this may only be an English jurisdiction offence and my cases are based in England. But perversion of the course of justice and contempt of court could ideally be used as a judge's tool to stop the worst offenders who know a judge will adjourn a case, rather than force the parties to be ready come what may. With court management comes responsibility to both parties as it should be very rare indeed that a case goes to an appeal court (which is normally on a point of law only, but rarely on evidence alone). It is therefore in a judge's own interests that he has control of his court room and is impartial.

The Woolf Reforms in England dabbled with the courts principles - away from equality, impartiality, fairness and justice TO proportionality, economy, expedition and (not traditional equality but contemporary equality - compromise - Alternative Dispute Resolution(ADR)mediation). This new emphasis in England anyway means court procedure should have been enhanced and with case marshalling occurring electronically should mean the Lord President is in a position even in Scotland to show how many cases are in the system at any one time, where the case procedure is at, who is causing delays and why, whether settlement has occurred or whether judgment is made and at what expedition has occurred from start to finish. These statistics should be available and publically to make the system transparent. There are perhaps 5 or 6 necessary procedural steps to a case - issue of writ, defence and/or counterclaim, discovery, witnesses then trial. The onus should be on the parties resolving their disputes and whittling down the issues in the case. With today's technology all of this material can be "uploaded" to a court by a time set by the judge (not the parties) with contempt of court orders or perversion of the course of justice orders automatically going out when not heeded to. A judge afterall works on a fortnightly or monthly scheduling basis and if a case settles early there is a gap in scheduling which could move things forward on cases that are smaller. With electronic discovery it should be easier to do "causation" as it is always going to be in the earliest documents the remainder focused on "effect" (unless metalipsis - reversal of cause and effect), it could easily be a procedure to state exactly causation and provide evidence in support in a Skeleton Argument if this is not already done. A judge should always be focussed on trial, it is for the parties to settle their case before trial. So when writ is issued so should a provisional trial date be issued with an electronic schedule of when the judge wants documents into court and if preparation is earlier then the date could be brought forward even in fairly substantial litigations. How many cases have more than 5 lever arch files of evidence - the majority of cases are likely to be quite small and a judge could issue a contempt of court order if "causation" and "effect" documentation are burdensome or not clearly getting to the issue - lawyers are trained to do discovery. (In one of my court cases I had to provide an "agreed" court bundle and a "disagreed" court bundle because respondents' Solicitors or Counsel removed evidence provided on discovery from the agreed bundle and refused to do proper discovery.) There is no reason why Lord Hamilton cannot create a procedure so as to cause efficiency, but as likely as not a contempt of court order would have sufficed. (In my case, a contempt of court order was not forthcoming albeit the judge did permit the disagreed court bundle "in the interests of justice". I lost the case, probably because I had not perceived the strength of one page of evidence provided by respondent's on their discovery of documents, so their tactic worked as I was too focused on getting my evidence in which had the same information over 20 pages or so which the judge should have been astute to in any event). Whittling down the case as evidence and testimony surfaces should be more focused on by judges and would aid settlement.

So from my experience in civil litigation on a two lever arch file case for court improvement I would suggest:

* Clearily focus on the 5/6 crucial steps to trial
* Case marshall and provide an electronic map to trial
* Electronic uploading of documents of 5/6 crucial steps
* Electronic contempt of court or perversion of the course of justice orders
* Contempt of court order for flooding documentation
* Clearly identify "cause" and "effect" and the cut off between the two
* If you must have them, Skeleton Arguments clearly identify cause with exact evidence in support attached
* Statistical breakdown of cases on a 6 monthly cut off date
* Feedback - ask the parties to the litigation what they thought of the case management or judgment, courtroom control
* Contempt of Court fines - use them to do some good - pro bono or something else
* Get rid of most non-necessary procedural rules, ie ex parte hearings
* Empower people and value litigants in person in the system as they establish that the system does actually work FOR THE PEOPLE! not lawyers pockets. A justice system should not be so difficult that an ordinary person can't use it.
* Process all article 6 human rights claims as perversion of the course of justice which is what it really is.
* Remember it should be rare for a case to go to appeal! which belies the competence of the JUDGE!
* There is a material difference between corruption and a miscarriage of justice - the former requires deliberate judicial nonsense, the latter judicial inadvertence or lack of evidence as opposed to deliberate withholding of evidence.

The old cliche "its not rocket science" springs to mind but courtroom control is key and judges already have an arsenal to deal - they just have to be willing to do so which requires equality, impartiality, fairness and justice!

Street Justice

It is one of the smallest articles in the Scottish Daily Mail on 7 September 2010 entitled "Journey to the crime section" but there is undoubtedly a huge impact.

"It's the small act of rebellion taking bookshops across the country by storm. People have stealthily been moving copies of Tony Blair's "A Journey" from the biography section to the crime shelves.

...
Some have moved "A Journey" to the horror, fiction and dark fantasy sections.

But one exasperated member [of a facebook] group saw Blair's memoir on sale at Asda in Telford, and because there was no crime section, moved it to the toilet paper aisle instead".

STREET JUSTICE

Social Injustice to social justice - an update

The Daily Mail ran an article by Mark Howarth "Scandal of Scotland's stay-at-home prisoners - criminals can even claim benefits as they near the end of sentence" on 17 August 2010. The article had a slant against the Scottish Government's policy of serving their jail sentences in their own homes, which it considered a soft-touch justice policy.

My reading of the article was however factual and it would appear that the policy is successful as 423 prisoners now participate in Home Detention Curfews (HDC) and the policy is working for the last 6 months of a prison sentence or for some prisoners complete sentence.

Whilst the article does clearly state that the policy is for cost cutting, it does not clearly also show that there is a social injustice reason for the policy too. It costs £31,000 in Scotland (£45,000 in England) to keep a prisoner in jail for a year. A person not having committed a crime but living on benefits gets about £12,000-£15,000 in benefits. Therefore keeping people out of jail on Home Detention Curfews and letting them exist on benefits frees up a considerable sum of money with plus value added benefits for prisoner's families when they stay at home and/or increases their employability prospects - surely not a societal wrong. Prisoners are not free, they are fitted with an electronic tag to make sure they do not leave home between certain hours which was a Labour policy in 2006, the SNP have only extended the policy on prisoners qualification criteria for the scheme.

What I would have liked to see in the article is a more positive message showing what the Scottish Government are doing with the considerable cost saving the Home Detention Curfew policy is achieving!

...

Another interesting article in the Scotsman provided another social injustice policy issue the head of the Royal Bank of Scotland, Stephen Hester, informing that the next time a bank is bust it should not be to big to fail. If it happens again, he informs the RBS or any other bank should not be bailed out by the taxpayer. I concur - if the bank was bankrupt, then the situation would have been resolved quicker if lawyers had stepped in and carved up what was salvageable, with the remainder being written off, as happens to ordinary companies every day when an Administrator or Receiver steps in upon bankruptcy or sequestration in Scotland. It would make for a much better marketplace with lessons learned.

Article in The Scotsman 25 August 2010 by Nathalie Thomas entitled "We must let bust banks collapse says RBS chief (Click Here)

Doriand Au diable le paradis 1996

The song "Au diable le paradis" was playing in Paris in 1996 when I went on vacation over Christmas and New Year to write my dissertation : "you can lead a horse to water but you can't make it drink". I was staying in a little hotel, the Cosy Monceau, in the Malesherbes district of Paris. I would read and write in the mornings and go shopping and sightseeing in the afternoon and it was freezing. I thoroughly enjoyed my two week stay and had to write 12,000 words. What seemed a lot of writing to my horror on return was only 7000 words. I had another 5000 words of padding to go. My tutor, Professor Nicola Lacey, suggested I change the dissertation around, I was not amused so I decided not to change the beginning or the ending and with the help of sellotape and scissors cut the thing to pieces and stuck it back together again. I did enjoy my time in Paris ... and the song was on the album "Contact" which I bought. I thought it pertinent because I was writing about Alternative Dispute Resolution (ADR) being in the legal system of England & Wales via the Woolf Reforms and this song, which is quite catchy, kept ringing in my ears ... the devil in paradise ... which I thought was most apt to the material I was writing about.

Well why is this still relevant to my blog, Doriand has brought out another album "Le Grand Bain" and I bought it on Amazon the other day and have been listening to it today and rather liking it.

My Gran gave me some money to buy a Christmas present so I bought a large pink glass goblet in Montmatre district. With the remainder I bought pink tulips the first week and purple tulips the next from a local florist to sit on my desk. Fond memories indeed ...

Bias / prejudice / connivance / collusion / lack of impartiality

Bias has been raised by the media today in relation to Sir Peter Gibson heading up the Inquiry into complicity of MI5 and MI6 in torture at Guantanamo Bay. 'Reprieve' have rightly identified a reason why Sir Peter Gibson should step down from this Inquiry

"... In a letter to the judge, Clive Stafford Smith, a director of Reprieve, said there was a danger of bias that could wreck the inquiry.

He told the Mail: 'In an inquiry that is meant to assess the adequacy of past policies, Sir Peter Gibson should be a witness before it, rather than its judge.

'He needs to consider whether he can continue to act with the confidence of both the public, and the alleged victims of complicity in torture, with independence and impartiality.' ...

... Most serious is the suggestion that he has already conducted hearings in private, suggesting he has prejudged the issues.

... In his letter to Sir Peter, copied to the Prime Minister, Mr Stafford Smith wrote: 'You cannot now conduct a further independent inquiry having already reached conclusions on some or all of the issues.

'A fair-minded member of the public would see that as acting as a judge in an appeal against your own decision.' ..."

The Daily Mail 20/07/2010 by Tim Shipman entitled "Torture Inquiry Judge urged to quit over bias claims (Click Here)

However, of more concern to me is that the Inquiry itself is being conducted as a "mediation" which immediately signals that there is a cover up due to occur. What is also presumed is that the people engaged in the litigations are only after money as an outcome - this appears to be the dangled carrot to get the litigations out of the "public" domain of the court room. Some serious revelations of evidence of torture have already been sourced by the press into conduct which MI5 and MI6 are allegedly complicit in, such as slashing of genitals, but this information is in the public domain as a consequence of the court case and "Judges" doing their job properly, it would not be there as a consequence of a mediation unless the "PARTIES" agreed that it should be.

What Sir Peter Gibson's inquiry is doing is engaging in "hiding" the issues in the mediation and removing the case from the public domain of the courts. The parties will be required to sign a gagging confidentiality clause in order to get their money and how much will be confidential too.

Mediation may not be the appropriate methodology to do an Inquiry and as I have always argued mediation (alternative dispute resolution (ADR) / informal dispute settlement (IDS))is the real invasion in the United Kingdom which appears to have become embedded into even MI5 and MI6 rather than seeing it for what it really is: compromise. Mediation is seen as a win:win rather than litigation a win:lose. Why do MI5 and MI6 need to be seen to win : win - is mediation raising the spectre of a compromise - for a reason - if so, lets have the "reasoning" done in court. There is a raised presumption that something(s) need to be hidden or that MI5 and MI6 are blameworthy to some degree be it 99:1 or 70:30 or 50:50 or 40:60 or 20:80!!!!! Offering money is seen as preventing a "lose of face" ie "gold will be left on the table". If you compromise too much, then soon you will have no rights at all with carte blanche precedent to lower standards not raise them or adhere to them.

Jurisprudence is the science and theory of human law, ie why we have laws, why we obey them. Judges know why they reason which should not be escoteric. Jurisprudence is about safe and just society. Judges must reason. Therefore when a judge advocates mediation there is a need to question a judge's raison d'etre - essence of being. What is Sir Peter Gibson afraid of ? ... mediation was never about "costs" in court [Woolf reforms]. When a judge's efforts are more involved in not hearing the case or getting the case prepared for trial then something is clearly wrong with the judge and the procedural rules of court which is subjectivity not objectivity, ie bias, prejudice, collusion, connivance, lack of impartiality. The objective of a judge is to get the case to trial and to clamp down on parties who try to prevent it. When the judge is blocking or removing the case to ADR/IDS then something is clearly wrong with the judge and society ...

COMPLICITY

Complicity is in the media today. Sir Peter Gibson is to head up an Inquiry about detainees who claim they were tortured with the complicity of MI5 and MI6 whilst held at Guantanamo Bay in America in relation to the "war on terror".

Sir Peter Gibson is better known to me as Mr Justice Gibson of the Court of Appeal*. He heard or rather did not hear my case Lesley McDade v Masons sitting with Mr Justice Mance. Mr Justice Gibson gave 1/2 hour for my case before him, blocked an article 177 preliminary enquiry** to the European Court of Justice by using Martin v Glinware Distributors [1983] to which I argued the "loyalty clause", article 6 of the European Treaty of Union, which he called the Treaty of Rome. I left the court stating he was "despicable" and slammed my case files and slammed the door of the court room after me. I did not get done for contempt of court. Mr Justice Mance, however, said absolutely nothing for half an hour and handed me back his pencil marked up bundle.

Somehow, it missed them that I had experienced a perversion of the course of justice in both lower courts and it entirely missed them that Cathy James was "cause" and I was sacked because she had a loud voice and was absolutely incompetent leaving a confidential memo in the public network directory for which spurious allegations were made against me, the firm of Masons not liking the outcome of their disciplinary hearings. I was transferred and then sacked by Professor Richard Susskind OBE (Professor DisOBEdient) because I refused to transfer as I was not cause and it was an unlawful request as my contract did not permit a transfer, my having been suspended under the disciplinary clause not a variation clause. Once the suspension was lifted I wanted to return to post, not a transferred position when Ms James should have been held responsible and sacked. My colleague Catherine Johnson was also sacked, but Ms James was deemed "valuable" ... in what way I do wonder.

I did ask for the engineers taped transcript of the court of appeal hearing before Mr Justice Gibson which he agreed to let me have. Needless to say the recording equipment did not appear to capture pertinent parts of the transcript. The blanks did not appear to be in pattern suggesting faulty equipment leaving me wondering was someone playing with the recording button or drowning out using the air conditioning button. Recording equipment in court can pick up rather a lot, but some how my transcript was full of blanks, to include the Martin v Glinware Distributors blocking case precedent and arguments. There was definitely an effort being made to NOT hear my case.

My legal career was shattered by being sacked because of the spurious nature of the allegations against me which were designed to disrupt my legal exams being brought 40 days after the facts - so I engaged in a disciplinary hearings then an exam, appeal hearing then an exam, disciplinary hearing then an exam. Professor Susskind OBE deliberately sacked me in full knowledge I was not blameworthy and was malicious in his actions. He did not appear to like his being whipped in court by a legal secretary either hence the perversion of the course of justice and complicit practises I experienced on my journey to the House of Lords.

The tape transcript proved useful as I did manage to get to the House of Lords. My cheque for £500 for the Petition fee was cashed. The Bishop of Derby said Prayers. Then bizarrely the Bishop of Birmingham said prayers a few days later. Law Lords Hope of Craighead, Slynn of Hadley and Hobhouse of Woodborough refused to hear my case using blocking case law Lane v Esdaile, a 100 year old case, to deprive me of access to justice, something the Woolf Reforms and the Access to Justice Act 1999 said we had - NOT. They also failed to declare a lack of impartiality.

I was aware that Sir Peter Gibson worked with MI5 as I googled their website and put his name in the search engine and it came up. It was just an off the cuff thing but I was looking for a reason as to why I was being treated so shabbily by the court. Sir Peter Gibson is Commissioner for the intelligence services ... but he does not come across as competent nor intelligent and I was by now a paralegal, else he was protecting someone possibly Susskind, Molyneux or Ford: you just could not be that dim concerning the case papers in my case.

I am therefore somewhat surprised that Sir Peter Gibson is heading up this Inquiry and wonder why MI5/MI6 are effectively policing themselves ... perhaps the detainees would be better sticking with their court cases. Ye of little faith ... *the case papers of the court of appeal are published in earlier posts on this blog

** An article 177 preliminary enquiry (now known as article 234) is "discretionary" at the Court of Appeal and "automatic" at the House of Lords. (I also had an article 177 preliminary reference in the House of Lords case papers)

E M P A T H Y

The Government are listening - they want joe public's ideas on law that govern's us and have set up three headings (a) civil liberties; (b) repeal; (c) redtape, go to :

www.yourfreedom.hmg.gov.uk

I have managed to log 3 ideas so far, but the server is currently down for a hardware upgrade this evening - I will add some more later if I can.

The idea is that all ideas will be looked at and some will be acted upon. The "listening" will complete some time in the Autumn.

Have fun. Go for it. Try.

INQUIRY = innocent = closure (not ENQUIRY)

There are two terms which are often mixed up in law and that is "Inquiry" and "Enquiry". The former is most important as it is an investigation especially where there has been a fatality. An Inquiry therefore looks into the facts of a situation, establishes the circumstances and produces its findings and possibly recommendations for future directions in law. What an Inquiry does is provide closure and improvement in rules and regulations which do not lead to consequences, ie that which is to be avoided again in the future where possible.

Lord Saville, the news reported this evening, has concluded his Inquiry into the Bloody Sunday massacre in Ireland in 1972. The Saville report interviewed 922 witnesses - so it can definitely be deemed "thorough" even although there were conflicting accounts, and took 12 years to complete at a cost of just under £200 million, a snip at £191 million. Justice obviously has no cost implications [Lord Woolf], another £9 million could have been spent on "?" for completeness!

However, watching the television tonight a sense of a good result was on display - INNOCENT - all 14 shot dead out of the 27 shot - murdered and injured.

But bear in mind, where there is a fatality and an issue of murder, there is GUILTY as a verdict. This is of necessity missing from an INQUIRY as it is not meant to establish BLAME, for which you would need a prosecution and a trial.

An "Enquiry" on the otherhand is something you do in conveyancing law when doing background checks in order to sell a property, ie preliminary enquiries eg checking that a road is not going to be built through the property in the next few years, or that an adequate drainage system is linked to the property, or even that there is a right to light as an easement which is a benefit or burden depending on which side of the fence you are on.

Well done, to Lord Saville. Closure

NB: Breakdown of the £191 million bill - figures released in the Daily Mail

£.13,566,941 Inquiry counsel fees
£.13,361,677 Eversheds (law firm)
£.19,330,660 Office rent and utilities
£...2,931,897 Computers, purchase costs
£...5,610,347 Computer consultants
£.25,790,164 Computer operation/maintenance
£......253,764 Furniture
£ ......322,413 Lord Saville's travel
£ ........19,627 Lord Saville's Expenses
£ ........35,507 Counselling for victims' families
£ ........62,486 Media monitoring
£ ......391,077 Historical consultants
£191,200,000 TOTAL including all other tribunal costs plus Ministry of Defence legal costs of which lawyers bills were £100,203,621 - there may be further costs still to come in.

By comparison: some 12-15 years ago I worked on the £24 billion global merger of Guinness-Grandmet- LVMH which became Diageo plc. There were 3000 files but no sophisticated computer system - the legal bill was nowhere near £191 million. I have also worked on a £200 million misrep action in the Official Referees court which used leading edge document imaging technology Norwich Union v Tarmac (1) Schal (2): we acted for the 6th and 7th third party, Ladbrokes (the case settled early). Using computer technology, and my system was a bespoke prototype at the time which I was enhancing as we went along, it did not cost these sums of money, the equipment alone cost under £75,000. Having worked on other database projects in the 80's (Vortex / North West Water / Radius) you can buy bolt on window database compatible software, ie Foxpro is one which provides a good 40 fields of upto 8 different types of field system, popup's, wrap around etc. These are not terribly expensive but if you want a simple bolt on database which can word search or theme search, do boolean searches and OCR (optical character recognition)/ICR (intelligent character recognition) with fuzzy search up to 8 mispelt characters using todays technology, databases and scanners, the price should come down quite a lot - the home market now has these machines at around £100 and even I recently had a home based Lexmark system which I picked up for £60. Whilst systems do have to be slightly different for legal use WORM not WARM (write once read many over write any ready many) (so that documents cannot be altered once scanned), I am surprised at the costs in relation to computers and can only suppose that some form of database over a manual system was used (or both) - it seems excessive but then the Inquiry was over a duration of 12 years. My £24 billion 3000 file manual system worked 100% well over a 1 year period of which I was absolute responsible for 400 files feeding into 3000 files and could locate any document in a maximum of 15 minutes, albeit substantial amounts of the file system were built 2 years earlier for an aborted deal. Office space used 1 small room (400 files) and 2 large rooms (x 3000 each we had a duplicate) for Guinness team. Still, 922 witness statements, should have meant that the system worked quicker - a search can produce 1000's of documents in under 5 minutes, almost seconds, if the fields are set up properly or if the OCR/ICR searches are working well - you just need to then ensure the printer is compatible with the search! (another story). You can of course out-source objective codification part of the exercise (name, to from, type of doc etc) and bring in junior counsel for the subjective codification keeping costs down - a colleague on a UNIX system had objective codification done for him as outsource at £1 a document - saves a lot of time rather than dealing inhouse. My system dealt with it inhouse for Ladbrokes, with a team of 4, it took 4 1/2 weeks to codify 85 lever arch files out of 240 files and with junior counsel working alongside. I wonder how many files this project had, but the costs should have been loaded early in the project and computer problems sorted early on too. Was it a prototype and was it like mine, a common provider system, between more than one party to the Inquiry? I cannot conceive how £2+ million was spent on computers and £25+ million on computer services. Some legal projects can be massive and document control crucial to the outcome of the project, but at £191 million - this was a gravy train by lawyers and others. With a computer based system and I presume it is a document image system that has been used it pays to bear in mind that the "chronological list" system used in court is the "natural cause" way to put time in its place by pagination, and causation is always located earlier rather than later in the system: cause always comes first, effect follows unless there is metalipsis which is a reversal of cause and effect - effect and cause (does not happen often). Just how big was this Inquiry? Just on the figures released comprising £191 million, I think I need more information, please!

Good News Recycling - Incentive v taxation = benefit not burden

I was most pleased to see the midday news today, where there was an article informing about a recycling bins "incentive" scheme which gives out vouchers to residents who recycle and the dropping off of the taxation scheme for recycling.

My own similar scheme suggested a return to householders by way of their community charge, but vouchers is an acceptable modification as an incentive.

Rubbish is put out on the street for free and is potentially a cash cow industry which should be promulgated for the common good in society, but also with an incentive to engage society.

An interesting newspaper article on the subject is:

Published in Letsrecycle.com, Council News of the Royal Borough of Windsor and Maidenhead on 7 June 2010 entitled "Government to spell out recycling incentives policy" (Click Here)

On an unrelated topic: another idea of mine that I tried to get off the ground a few years ago by writing to several oranisations for them to chat about at committee level was:

Loyalty Cards - quite often you have a number of loyalty schemes in your purse with a small number of points on each of them, not enough to buy something you want or perhaps only a very small item. With the recession biting and hitting the third sector in relation to funding and funding crisis, I pondered and thought what about companies that operate loyalty card schemes such as Boots Advantage Card or Nectar etc, organising to allow charities to have a card whereby lots of individual users could transfer their points to a charity card (particularly for small grassroots charties) to purchase larger items such as TV's or smaller items for tombola and raffles, or even for specific one off assistance to group members for example the homeless. A few loyalty points on a lot of cards could value add up to a large amount of benefit to cash strapped local based charties to buy TV's, music equipment, projectors and office supplies and bring out the altruist in folks who may not need the points for themselves per se. Just a thought ... what does it take to make it happen? How big could the benefit be? How much of a difference could it potentially make to a small group of people?

Admission

There is finally an "Admission" concerning Iraq today.

"The Scotsman" 23 May 2010 by Eddie Barnes entitled "Labour's Iraq war wounds reopened in leadership race"

We got it wrong, but unfortunately it was a bit obvious - Hans Blix should have been able to complete his report prior to invasion.

However, I have always maintained that Iraq was a decoy ... the real invasion was a Japanese concept, Alternative Dispute Resolution (ADR), entering the judicial and legal profession of England & Wales via America and promulgated by the Jewish community here in the the UK via the Access to Justice Act 1999, and thereafter ADR entering Scotland and Europe. I did my absolute best to get the information out but can only report a complete failure of democracy ...

Perhaps there is a need for a formal apology by the Government to Rose Gentle, Reg Keys and Malcolm Kendall-Smith and others.

Constitutional Law

It would appear that the Conservative and Liberal Democrats are prepared to perpetuate the flaw under New Labour and have a politician as Lord Chancellor again, now Kenneth Clarke. Is there a reason why it is not a Judge and, the reason, is it a constitutional issue, ie requiring serious debate in the Houses of Parliament both Commons and Lords? How much "change regime" is the Conservative/Libdem pact keeping or continuing?

On another issue: Lord Donaldson had two nuclear weapons - "the Anton Pillar Order" and "the Maereva Injunction". These are two concepts of "equity" and used to deal with financial problem cases before a court, especially concerning tracing of money. They are objects of law designed to take effect from the 1970's.

Vince Cable is to get to grips with the banking crisis - it strikes me that the bankers have had more success than a nuclear missile attack - the Greek econony is bailed by the IMF bank, the Spanish, Portuguese are on the brink, the UK is printing money and doing "quantative easing" and has a deficit larger than the bailed out Greeks which also includes the bailing out of the Northern Bank, Bank of Scotland and Royal Bank of Scotland (now largely owned by the taxpayer) as well as the Lehman Brothers, a financing organisations, total collapse. America and Japan / Asian economies and an Arab economy are all also substantially affected to some degree as well as the Madoff (America)/Raza (India)/Di Yimin (China)/Goodwin (UK) scandal in relation to "ponzi schemes" - speculatively - who is the teacher(s).

Therefore, perhaps the issue is that we don't actually need Trident missiles located in Scotland at all, as they would do less damage and harm than bankers hell bent on "borrowing" their bonuses. Bonuses should come out of profits, as dividends secured from shareholder investment come out of profits.

If our economy is in a mess with financial deficit which is way too serious, then getting to grips with the debit and credit columns would secure world order, which is not meant to exist in chaos, but organisation ... as does the natural world so also should the artificial world to include intangibles.

Perhaps there is a need for a universal judgment against a bank to set the system back on course - without a Lord Chancellor who is a judge with executive powers in Cabinet, we may be sorely pressed to deal ...