Thursday, 15 March 2007

The Michael philosophises

A classic quote from 'The Michael' on December 14th 2006, clearly in a cynical albeit rather erudite and perceptive mood.

"Asking the lawyer for advice in respect of a problem, however small or ostensibly straightforward, is neither recommended nor ever simple.

Lawyers love to unnecessarily wrap issues up in complexity and obfuscation. This serves two purposes. Firstly, it helps them to present themselves as sophisticated, intelligent beings, capable of disentangling a solution from a bird's nest of a problem. This cloak of pretence and intricacy provides them with a platform on which to expand their rather under-developed and uninteresting personalities. Their high salaries allow them to afford the feckless frivolities in life that they invariably take delight in, thereby surrounding themselves with luxurious sundries to, at least for a short while, forget their own miserable existences in the vacuous wretchedness of their worthlessness.

Secondly, and perhaps more importantly, taking time to unravel particularly convoluted and troublesome issues -- which are invariably neither convoluted nor troublesome -- is vitally important to lawyers for another reason: they bill by the hour."

Thursday, 8 March 2007

Boozed-up leg-rubbing, indefensible

R v Heard, Court of Appeal Criminal Division - Published March 6, 2007

This case seems to have gone to appeal on the basis of a rather fanciful and imaginative line of reasoning – one which is centred around well-settled law and in that sense should not have been given 'court-room'. The fact it went to appeal is disturbing in itself, mainly because the ‘point of law’ was simply shrouded in obfuscation and 'needed' an appeal judge to ‘set the record straight’. What a waste.

In short: a defendant who became voluntarily drunk and ‘rubbed-up’ against a police officer’s leg could not successfully rely on the defence of intoxication so as to avoid liability for sexual assault under section 3 of the Sexual Offences Act 2003. The defendant claimed he was so drunk he was not aware of his actions or in control of himself, so to speak.

For a section 3 offence to be made out the following are required:
- Defendant (D) intentionally touches another person, (victim) (V));
- the touching is sexual;
- V does not consent to the touching, and;
- D does not reasonably believe that V consents.

The trial judge directed the jury that the touching must be deliberate and the defence that voluntary intoxication with the effect that the defendant was unable to form the intent to touch was not available to him. This is based on well-settled law and is unshakeable in legal reasoning. Parenthetically, in the appeal, it was stated that there was no universal test for determining which crimes could be successfully defended through voluntary intoxication and those which could not – it would largely depend on public policy considerations.

The touching was clearly intentional: the defendant had not flailed around in an uncoordinated manner but rather deliberately rubbed his genitals up the police officer’s leg. If the touching was unintentional, irrespective of whether the defendant was intoxicated or not, a section 3 offence would not have been made out.

With that in mind, the defendant’s lawyers had one remaining ace to play for appeal: to argue that the offence was not one of basic intent but rather specific intent. Specific intent involves the concept of intention being considered in relation to the purposes of the criminal act; basic intent considers intention independently of the purposes. In this context, therefore, the defendant tried to argue that because of his drunken state, he was not fully aware of what he was doing and, – here comes the crucial point – the purpose of his touching was not sexual because of it. If the section 3 offence was to be viewed as one of specific intent, this line of reasoning might work, with clearly repugnant consequences: any drunken oaf could get away with a grope (or worse) claiming that because of their drunken state, the touching was not sexually motivated and thus a section 3 offence could not be made out.

Thankfully, the Court of Appeal were having none of this. Somewhat unhelpfully, though, they stated that some offences (such as s3 SOA) could not be straightforwardly viewed as requiring basic or specific intent as different elements of the offence required proof of different states of mind. While this argument was a neat way of justifying their decision, it had the effect of opening up a can of worms which, frankly, need not have been opened.

Clearly, voluntary intoxication in respect of a sexual offence could never be relied upon as negating the necessary intention irrespective of how it was sliced. It was always just a matter of seeing how and on what basis the Court of Appeal would shoot the argument down in flames.

Sunday, 4 March 2007

Microsoft’s Antitrust issues just keep on rollin’

This one has been running so long that I’m frankly pig-sick of it now. The EU clearly have been wanting to turn the thumbscrews into Microsoft for so long that they’ve forgotten their original gripe with them. Not that the EU would ever act in a vindictive, recalcitrant or vengeful way, of course. Still, it would seem that Redmond’s [rather reticent] response to the EU’s 2004 antitrust ruling has now suddenly been deemed inadequate. Again.

The problem centres around one of the requirements laid out by the EU that Microsoft must adhere to: the provision of documentation to aid software developers creating programs to be more interoperable with Windows Server products. While Microsoft were never exactly ‘swift’ in acceding to ANY of the EU’s requests, they certainly have dragged their feet the most in respect of the documentation issue.

In short, this is the ultimate court[room]-based tennis match, with a seemingly never-ending rally going between the EU and Microsoft. As soon as the former pitches another allegation against the software giant, Redmond hits back with an imaginative ‘return’ argument or objection.

My biggest gripe with this enormously expensive, tedious and protracted affair is the pointlessness of it all. The EU can (and no doubt will) pursue Microsoft like a hunted beast for years to come and tragically achieve precious little in doing so. Just look at the requirement of Redmond having to provide a media-player-free version of Windows XP to be sold in Europe. This 'N' version of XP has been bought by all of six people, I’m informed. And five of the those purchased it erroneously.

‘The case continues…’

Friday, 2 March 2007

“He had difficulties entering into other relationships after the incident” – No kidding.

This one truly brings tears to my eyes. A Canadian court has been hearing a case involving a woman, Andrée René, who set fire to her boyfriend’s penis. The victim suffered third-degree burns and presumably a scorched ego for the rest of his life. Painfully, the victim’s lawyers’ contentions included a (possibly) euphemistic description of the aftereffects of the attack: ‘He had difficulties ‘entering’ into other ‘relationships’ after the incident’. I bet he did.

The upshot: Andrée René was sentenced to 4 years imprisonment, must undergo psychological assessment and prohibited from owning guns or combustible materials for 10 years after her release. It is said that René ‘harbours deep anger towards men’. And all associated appendages, it seems.