15 September 2010

Financial Services (Regulation of Deposits and Lending) Bill

First reading of the title Bill by Douglas Carswell. He discusses the Bill on his blog, here.

In a nutshell, he's proposing that bank customers can prevent the banks lending the money that they deposited. I imagine the outcome would be that interest would be paid on the money that is lent - the ownership of the money belonging to the bank - interest (for want of a better word) would also be paid on the non-lending money - the ownership remaining with the depositor, but the money would be used as fractional reserve.

Anything but privatise currency.

As yet, it is not on Hansard. I will provide the links here when they are updated and I hope to comment on the Bill as or if it progresses through Parliament.

14 September 2010

South West Trains Taking Money Under False Pretences?

There follows a peculiar tale from the Daily Echo under the title,

Couple fined £114 for getting off South West Train too early at Eastleigh

Which says, " A HAMPSHIRE couple were fined more than £100 – for getting off a too train early.

Emma Clark and her fiancé Davyd Winter-Bates were travelling back from London to Southampton when they decided to hop off two stops earlier at Eastleigh.

When they handed over their tickets they were shocked to be told they had breached railway rules and were ordered to pay a fine of £114 – double the price of two standard fares.


"A South West Trains spokesman said: "[...]. All tickets on the UK rail network have specific terms and conditions and customers should check that they are purchasing the right ticket for their journey. It is a specific condition of all advance purchase tickets [...] that leaving the train at an intermediate station is not permitted. [...]

"In this case, the customers bought a discount ticket on the megatrain.com website that did not allow them to travel from London to Eastleigh. The customers would have known this as the website they used to book the ticket does not offer Eastleigh as a destination. Unfortunately, by breaking the conditions of travel, this meant they had an additional charge to pay. This would have been the case in a similar situation anywhere on the UK rail network."

The first question to ask is whether or not the terms of the contract that the spokesman for South West Trains discussed are incorporated into the contract: if they have been incorporated into the contract there isn't anything else to discuss. However, there are a number of cases that point out that if you are trying to incorporate onerous terms into a contract you must draw the attention of the other party to these onerous terms.

One of these cases is Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433. Although terms in contracts can be incorporated by notice, there must be sufficient notice for this to happen. Further, the more onerous the term, the greater the sufficieny of notice required for incorporation. Then there is the Unfair Contract Terms Act 1977 which has a reasonableness test - do you think that what happened to the couple was reasonable?

Another point is that penalty clauses are not enforced under English law if their purpose is to punish the party in breach, rather than to provide compensation.

I wonder how many people have been charged by these train companies? And, I wonder when someone is going to challenge them?

Paddick Begins To Tie A Noose

I should start by saying that the only sensible source of analysis of the metgate/hackgate affair is coming from Jack of Kent; eg see, "Metgate A Guide to the Current Issues".

(Note - Coulson is very much a bit player in the saga; anyone who thinks otherwise, perhaps with the exception of Coulson, is not getting it).

Anyway, the BBC reports, "Brian Paddick launches legal action on phone hacking"

"A former senior Metropolitan Police officer has issued judicial review proceedings against the force over newspaper phone-hacking claims.

Ex-deputy assistant commissioner Brian Paddick says it failed to warn him his privacy may have been compromised.

It is anticipated that the process that will unfold will produce more details and revelations. Yates is in the crosshairs; the sleazy Levy scandal may surface again, and News Int may be finished. The fuse is fizzing but it isn't clear the size of the bomb and who's going to be destroyed by it.

It also makes a mockery of Prescot's tiresome whine that he was going to launch a judicial review. Yeah right, ...
Update 17th September 2010 ... and trailing in Paddick's wake comes Prescot, "Phone hacking: Lord Prescott seeks judicial review of Met police.

The peer joins Labour MP Chris Bryant, former Scotland Yard deputy assistant commissioner Brian Paddick and journalist Brendan Montague in asking the courts to decide whether police handled the case properly."

Clear article by Telegraph, well worth a visit.

Questions that arise from it ...

Will there be more people who come forward? I would guess, Yes.

What about the people who have no clue that they were the victims of crime? This is the sort of thing that I was talking about when I said, "Note - Coulson is very much a bit player in the saga; anyone who thinks otherwise, perhaps with the exception of Coulson, is not getting it."

It is suggested that there are not four but ninety-one victims of these crimes, yet only four have come forward to seek a remedy. I would imagine that there are a lot more than ninety-one such victims yet the Met hasn't even told them.

09 September 2010

Split-Protein Reassembly - Very Clever

Saw this ...

... and thought it was very clever.

Here's the link to the paper,

A turn-on split-luciferase sensor for the direct detection of poly(ADP-ribose) as a marker for DNA repair and cell death

Jennifer L. Furman, Pui-Wing Mok, Shengyi Shen, Cliff I. Stains and Indraneel Ghosh
Chem. Commun., 2010, Advance Article

DOI: 10.1039/C0CC02229B , Communication

Bill 68

My feeds tell me that, "Freedom of Information (Amendment) Bill 2010-11" was read in the Commons with Hansard recording the event.

The exchange recorded is well worth the read,

"Tom Brake (Carshalton and Wallington) (LD): I beg to move,

That leave be given to bring in a Bill to amend the Freedom of Information Act 2000 to remove provisions permitting Ministers to overrule decisions of the Information Commissioner and Information Tribunal; to limit the time allowed for public authorities to respond to requests involving consideration of the public interest; to amend the definition of public authorities; and for connected purposes.


More in the Hansard link.

08 September 2010

Leicester Laser

The BBC reports, "Leicester boy loses 'laser pen' appeal"

"A 14-year-old youth accused of shining a laser pen at a police helicopter in Leicester has failed to convince the High Court he should not be prosecuted.

The boy was charged with recklessly endangering an aircraft after the helicopter was targeted in October.

His barrister argued it was not in the public interest to impose a criminal record for "10 minutes of stupidity".

But the judge refused to intervene, saying the consequences could have been "catastrophic".

The charge of "recklessly endangering an aircraft" comes from Article 73 of SI 1970, The Air Navigation Order 2005,

"73. A person shall not recklessly or negligently act in a manner likely to endanger an aircraft, or any person therein."

According, Article 148(7) and Schedule C, Part 14,

"If any person contravenes [Article 148(7)] he shall be guilty of an offence and liable on summary conviction to a fine not exceeding the statutory maximum and on conviction on indictment to a fine or imprisonment for a term not exceeding five years or both."

After having said all that, recall the following story, again from the BBC.

"Crackdown on aircraft laser louts" from 12th Dec 2009. This gives background to the 'laser scourge' and explains the Article 73 charge,

"Those caught are charged under article 73 of the Air Navigation Order for recklessly endangering an aircraft - a penalty carrying a maximum five-year jail term.

It is the same charge used in air rage cases and, according to regulators, far from ideal.

The CAA says the sheer number of cases has prompted it to draft a new, more specific charge of shining a light at an aircraft - due to come into effect in January.

It hopes the changes will increase the number of prosecutions, make the law clearer and deter offenders.

Well, the sought for, charge has come into effect (see Lights which dazzle) and is found in Article 222 of The Air Navigation Order 2009 (No. 3015),

"222. A person must not in the United Kingdom direct or shine any light at any aircraft in flight so as to dazzle or distract the pilot of the aircraft."

The penalty for this can be found in Article 241(6) and Schedule 13 Part B,

"Any person who [...] is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale."

Once these two provisions have been reviewed, we can go back to the story from the BBC and ask ourselves whether or not it is true that the 14 year old boy asked the High Court not to be prosecuted. Instead, one suspects that his argument would go along the lines of, why is it in the public interest to prosecute him under the 2005 instrument rather than the 2009 instrument?

"... Mr Justice Collins said it was up to the CPS to decide whether to mount a full prosecution."

But that doesn't tell us much as to how the public interest test is being applied when there are two competing provisions on the statute books; of which, one was specifically drafted for the behaviour of the accused.

This is somewhat troubling. I wonder if there is an appeal in the offing.
Update 9th Sept 2010.

A closer reading of the 2009 Regulations gives the commencement in article 1 (1) as the 1st January 2010. In other words, when the boy from Leicester committed his act (October, presumably 2009), the regulations were not law. He couldn't have been charged under these regulations. Sigh.

The question still remains as to what will be used to charge and prosecute future alleged miscreants, but not this one. It looks like the older law will is being used, for example, from 14th August 2010,

"Man charged after laser shone at police helicopter

A man has been charged after a laser was shone at a police helicopter in Cheshire.

The laser was directed at the cockpit of Cheshire Constabulary's aircraft as it flew over Winsford on Wednesday night, police said.

The 27-year-old from Winsford is charged with recklessly endangering an aircraft.

He is due to appear before magistrates in Northwich next month, a police spokesman said.

Fingerprint Examiners Fallacy, Again

I made a comment on a blog post, Law and Lawyers: The blue touchpaper: reflections on science and law, over at Law and Lawyers.

I've posted before about the fingerprint examiners fallacy and given examples of said. The fingerprint examiners fallacy is an ongoing example of what I was writing about when I commented on the 'Law and Lawyers' blog: that is, the objective and subjective realities of science and law.

A recent example can be found in a report by the Guardian of an ongoing trial, "Palm print led to arrest of teenage rapist 25 years later, court hears".

"A teenager who raped a woman in her home and forced her flatmate to join in the abuse was caught by his palm print 25 years later, a court heard today."

The problem I have with this sort of thing is that techniques such as palm print identification have not been validated.

In a double blind trial, what is the success rate of the forensic technician who provided the evidence for the court? What is the national average amongst forensic technicians? What is the error curve for this particular technique?

If I were a juror I would expect all of these answers so that I would be able to give the appropriate weight to the evidence given.

Without this information the evidence has no probative value it is simply prejudicial.

07 September 2010

Journo Award

Goes to whoever wrote the following, "Council fined after child injured at Discovery Museum."

Leaving aside that the piece doesn't bear the author's name (he/she may not have been able to do anything about that), the piece contains facts (relevant law) and figures (costs and fine), viz,

"Newcastle City Council pleaded guilty to breaching Section 3(1) of the Health and Safety at Work Act 1974.

It was fined £12,000 and ordered to pay costs of £7,733.

As for the story itself: it tells of a young girl being injured by an exhibit at a museum. She required immediate surgery and follow-up surgery.


A story from the Metro, "Bargain shop slammed for shipping Polo mints across the world", in full

"A bargain shop has come in for a hole lot of criticism after shipping Polo mints from Indonesia – even though they are made in a factory just up the road.

Poundworld in York sells sweets produced 11,700km (7,300 miles) away, rather than ones from the Nestlé plant in the same city.

And the bizarre arrangement seems to work – allowing it to sell eight-roll multi-packs for £1, compared with most other stores’ price of about 49p per roll.

‘It’s part of the nonsense of the global economy,’ said Andy D’Agorne, leader of the city council’s Green Party group.

‘It’s cheaper on the basis of the current economic system that takes no account of the environmental impact.

‘If this was taken into account, [the mints] would be far more expensive.’

Poundworld said it sought ‘exceptional value for money’, which British-made products did not provide. It added the Polos came from a British wholesaler, so it was not involved in importing them.

Nestlé said: ‘Unfortunately, it is out of our control if retailers import items that were never designed for the UK.’

This story has also been reported by the BBC and local newspapers.

It is a curious story; firstly, Nestlé's comment; is it really out of their control? If these products were not produced by contractual agreement Nestlé would have a cause of action in passing off (or similar if the trademark is registered).

I don't believe that they're without Nestlé's control.

Is this the beginning of the end of polo production in York? Are we seeing controlled media demolition of the production facility in the UK?

Another aspect of the story is the lack of any explanation of parallel importing,

"A parallel import is a non-counterfeit product imported from another country without the permission of the intellectual property owner."

Note, 'of the intellectual property owner'; the importation of the Polos may not have the permission of Nestlé (although I doubt it); but some of the profit is still going back to them.

The story, illustrating the apparent lack of market control, illustrates how ordinarily, using IP law, markets are tightly controlled.

06 September 2010

Abortion by Deceit

A depressing tale is found in Ahmed, R v [2010] EWCA Crim 1949.

A woman enters into an arranged marriage; the husband is from Blighty, twenty years her senior, she is from Pakistan, and doesn't speak any English.

The marriage was not a happy one. The woman fell pregnant but by this time the marriage existed in name only.

The husband decided that the wife should have an abortion. He made arrangements and acted as interpretor; the wife was under the impression that she was visiting clinics in order to have a minor operation to cure something wrong with her blood. However, before she went under the knife, the clinic became suspicious as to why a young woman would want an abortion; they found a nurse who could speak her language and the dastardly deed was stopped.

Here's the law part,

"MR JUSTICE MADDISON: On 8th June 2009 at the Crown Court at Birmingham, the appellant, Ajaz Ahmed, was convicted of an offence contrary to section 59 of the Offences Against the Person Act 1861. On 6th July he was sentenced by Mr Recorder Pryce to serve four years' Imprisonment. He appeals against his conviction by leave of the single judge."

The ground of the appeal was that the offence was not known to law. Even though there is a section 59 offence (Procuring drugs, &c. to cause abortion.), it is pointed out that,

"What we cannot disregard is that procuring a miscarriage is not an offence created by section 59. As we have said, the offence created by the section is concerned in short with the procuring or supply of something intended for use in procuring an unlawful miscarriage. This defect may not have been significant had the Particulars of Offence in the indictment reflected the terms of section 59. But they did not. The particulars read as follows:

"Ajaz Ahmed between the 19th day of August 2007 and the 30th day of August 2007 intended unlawfully to bring about the use of medical and/or surgical procedures on Noreen Akhtar thereby to procure the miscarriage of her child, which she was then carrying."

The Particulars of Offence did not allege that the appellant unlawfully supplied or procured anything at all. Thus they did not set out the actus reus of an offence contrary to section 59(1) or indeed of any offence. They alleged only that the applicant intended unlawfully to bring about the use of procedures on the complainant to procure a miscarriage."

A few more errors of law are pointed out and then the court finishes by saying,

"As to whether there was any other offence of which the appellant might properly have been convicted or a conviction for which we could properly substitute, no convincing suggestions have been made to us. For these reasons, therefore, however reluctantly, we allow the appeal against conviction."

I wonder if the appellant boasts about his success?