The rain came down and the floods came up

With the flooding of July 2007 being such a major talking point at the moment, not least in my place of work amongst the old busy-body-fogies, it was only going to be a matter of time before a flood-related posting went up.

The other day, one of my colleagues – the archetypal doom ‘n’ gloom merchant – was bandying the phrase ‘Act of God’ about as if it was going out of fashion. This colleague, it should be said, was taking great delight in the fact one of her, much hated co-workers had, or at least was about to, lose her caravan to the floods. Think that says more about her than anything else, and yes, it is a shame. Tragically, she was prophesising about how the flood victims would cope, if and to what extent there would be financial aid, and who was to blame. Then, I spotted an article in the Times law section this week about this very issue.

To her credit, she was largely right in that, given that the majority of flood defences are the responsibility of various statutory bodies, few flood victims have a hope in securing compensation against them. So, once again, the law calculatedly leaves people ‘without a remedy’ (the phrase ‘high and dry’ just didn’t seem appropriate there – and let’s face it, ‘down and wet’ doesn’t really have the same ring to it.

Insurance is the one saviour here, although, I suspect, to by no means everyone affected. If the law AND insurance dessert you, I’m not sure who else there to turn to. Maybe God, of course. It was His act, after all.

And to get back to an earlier question: who is to blame? Tough one, quite honestly. So to coin a phrase so ably yet distastefully used by B*witched for a song a few years ago…. “Blame it on the weatherman”.

Wall to wall sunshine next week. Yes, seriously.

The Michael might have to look out those shorts and dust-off his sun lounger after all. Just when I’d given up all hope on the summer materialising to any noteworthy extent at all, the weather forecast is finally showing some relief from the rain. Can’t say that I feel particularly summery any more but I might well take the opportunity to soak up a little sun and brown my belly. When I get the chance that is – I’m working one hell of a lot of hours right now. Still, make hay while the sun……oopps, not the most fitting proverb to have used this summer.

Graduation Bear

The Michael has taken a short respite from blogging recently and I make no apologies for my absence – you know I wouldn’t mean it anyway. It seems most blawgers are in somewhat of a summer lull at the moment, so my infrequent postings of late will hopefully have passed unnoticed. Not least, of course, because next to nobody visits law actually. Just kidding.

Anyway, in recognition of completing my degree (and getting a first) my Mother kindly sent a ‘graduation bear’ all the way from the states. This bear, however, is like no other. Somewhat spookily, she recorded a message of congratulations which is activated by pressing his left paw. The first time I played the recording I found myself fearfully trembling before slowly inching backwards towards the door. Still, now I realise that was perhaps a tad OTT. I’ve grown to accept this bear and his eerie message in my Mother’s voice. Just not entirely comfortably, that’s all.

Speeder’s right to silence not infringed

I blogged about the case of O’Halloran and Francis v United Kingdom just over a week ago.

As you will no doubt recall, faithful reader, the Michael opined that their arguments would be given fairly short shrift. And so it was. The ECHR judges upheld the convictions for speeding offences with a 17-2 majority.

You might have thought the judges, impressed with the creativity of the applicant’s arguments, would have let them down gently. Oh no. The mincing of words and the softening of blows were not on the cards. Cases cited in favour of the applicant’s were distinguished from the instant case in almost rapid-fire succession.

The one concession to the appellants’ case, however, was a loose acknowledgement that the laws of member states should indeed operate without being self-incriminatory, nor should they infringe the basic right to silence. Err, yeah, thanks for that.

"On the one hand, it was self-evident that it was incompatible with the immunities to base a conviction solely or mainly on the accused's silence or on a refusal to answer questions or to give evidence himself. "On the other hand, the immunities could and should not prevent the accused's silence from being taken into account in situations which clearly called for an explanation."

With that out of the way, the judges, moved in for the kill. They categorically stated that Articles 2 and 6 of the European Convention on Human Rights had NOT been infringed by s172 Road Traffic Act 1988.

"Having regard to all the circumstances of the case, including the special nature of the regulatory regime at issue and the limited nature of the information sought by a notice under section 172 of the Road Traffic Act 1988, the court considers that the essence of the applicants' right to remain silent and their privilege against self-incrimination has not been destroyed.”

The applicant’s case was destined to fail from the beginning. This was always going to come down to a policy decision by the ECHR and the appeal would have to have been dismissed. To have allowed it would have brought the entire system of policing speeding motorists in the UK crashing down. Further, while you may have a hard time persuading a convicted speeder that the system is reasonable and fit-for-purpose, try asking them to suggest an alternative means of policing the UK’s excessive speeders. And wait for the silence. They have got a right to it, after all.

Gotta Kink?

Today the Michael was accused of ‘having a kink’. This rather quirky and old-fashioned phrase was used by a DIVING instructor who curiously is also a DRIVING instructor and who I still swear I’ve seen on TV at some point in the past – he fervently denies it of course. Anyway, the whole ‘kink’ business came up when the aforementioned instructor retorted with it when I casually dropped into the conversation that prior to my aspirations of becoming a lawyer, I had intended to enter the dental profession. Actually, he didn’t so much accuse as rather ask whether I did or did not have a ‘kink’ of enjoying inflicting pain and trauma on people and charging them for the privilege.

Nothing, of course, could be further from the truth; I've no interest in inflicting pain - I’m only in it for the money, baby. Caa-ching!! Just kidding.

It does beg the question, though:

“Which is the most evil and sadistic: a lawyer or a dentist??"

All smoked out....

So it's finally here - the first day of the smoking ban in public places. Many thought we'd never see the day when such a law came into effect and I know many croaky old codgers that'll be cursing it for years to come. I'm very much all for it, though, and readily dismiss arguments such as 'the state dictating to citizens' and the ban being tantamount to an erosion of human rights and civil liberties as 'narrow-sighted, dogmatic, and unreasonable bullsh*t'. Suffice to say, I set little store by the parochial argument a colleague attempted to ply me with earlier: 'we won the war so why should we be dictated to'. I snubbed her argument as politely as I could, but couldn't help wondering where the hell her line of reasoning came from. Actually, she's got a point, but it doesn't support her opinion at all. After all, didn't gassing people with toxic fumes against their will go out with the 'war'?!?!?

It can't be easy, though, for all those poor old nicotine-addicted, phlegm-hawking smokers, all gagging for a fag in places where before, they wouldn't have thought twice about lighting up. I do sympathise deeply, of course.

Oh well, they'll cope.

Child Porn in cache - no offence (in Georgia at least)

From OUT-LAW News, 29/06/2007:

“A US court has said that the existence of child pornography images in the cache of a man's computer did not mean that that man had committed a crime under state law.

A forensic computer analyst for the US Secret Service had testified in court that Edward Ray Barton's laptop computer had been used to view 106 images of child pornography on the internet.

Barton was convicted on 106 counts of the sexual exploitation of children and jailed. Under appeal, though, three judges in the state of Georgia ruled that Barton did not break the law, which says that a person must have knowing possession of the images.

Judge Miller said that that in order to convict, the state had to show that a defendant took some action to save or download images, or that the defendant knew that the computer automatically saved files.”

This is very interesting, not least because I was discussing the legal aspects of pornography at work earlier with a colleague – don’t ask. I considered myself well positioned to participate in this discussion because I had a whole week of work dedicated to pornography on my computer law module back in December. Anyway, I have to say that this decision seems to be well grounded in logic which, for an American court, could be considered a pretty rare thing nowadays. If the computer user had no idea of the cache on his computer and was just viewing, not purposefully saving the images, clearly he falls outside of the ambit of ‘having knowing possession of the images’. It doesn’t, of course, detract from the seriousness of child pornography and associated issues, nor does it make the computer user any less sick. You could argue, though, that by simply viewing the images, the user was fuelling the demand of child porn, thereby exacerbating the problem. In that sense, is the computer user any less guilty of sexual exploitation of children just because he didn’t save the images to disk?

Just to clarify, the position is different in England and Wales. S160 of the Criminal Justice Act of 1988 makes it an offence to merely possess indecent photographs of children.  Further, by virtue of the Protection of Children Act 1978 as amended by the Criminal Justice and Public Order Act 1994 it is an offence to view images of child pornography on the internet regardless of whether they are consciously saved or not. The cases of R v Bowden 1999 and R v Smith and R v Jayson [2002] EWCA Crim 683, clearly confirmed that viewing child pornography on the internet constituted a criminal offence because voluntarily downloading an indecent image from the internet to a computer constituted an act of making a photograph or pseudo-photograph for the purposes of s1(1)(a) Protection of Children Act 1978.  In other words, by voluntarily downloading such an image, the user had caused the image to exist on the computer and was so caught by the Act.  Conversely, viewing an email attachment which contained child pornography does not constitute such an offence, providing the user did not know or believe it likely that the attachment would contain an indecent image. Perhaps this is one of the few instances of where England & Wales lead by example.