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<channel>
	<title>The Barrister Bard</title>
	<link>http://www.david-osborne.com/blog</link>
	<description>Witty, incisive comment on the law today.</description>
	<pubDate>Fri, 11 May 2012 17:19:07 +0000</pubDate>
	<generator>http://wordpress.org/?v=2.3.3</generator>
	<language>en</language>
			<item>
		<title>The New Jerusalem</title>
		<link>http://www.david-osborne.com/blog/?p=134</link>
		<comments>http://www.david-osborne.com/blog/?p=134#comments</comments>
		<pubDate>Fri, 11 May 2012 17:13:37 +0000</pubDate>
		<dc:creator>admin</dc:creator>
		
		<category><![CDATA[General]]></category>

		<category><![CDATA[]]></category>

		<category><![CDATA[public inquiries]]></category>

		<category><![CDATA[self regulation]]></category>

		<category><![CDATA[waste of time]]></category>

		<guid isPermaLink="false">http://www.david-osborne.com/blog/?p=134</guid>
		<description><![CDATA[Come the New Jerusalem, when I am elected Divine Leader, I shall abolish all Public Inquiries as a complete waste of time and space.  They are excruciatingly boring, and for the most part, they tell us nothing we didn&#8217;t already know.
Take the Saville Inquiry, which lasted the best part of ten years and cost the [...]]]></description>
			<content:encoded><![CDATA[<p align="justify">Come the New Jerusalem, when I am elected Divine Leader, I shall abolish all Public Inquiries as a complete waste of time and space.  They are excruciatingly boring, and for the most part, they tell us nothing we didn&#8217;t already know.</p>
<p align="justify">Take the Saville Inquiry, which lasted the best part of ten years and cost the taxpayer in the region of £300 million.  And we all knew the outcome - there was fault on both sides - end of story.  Then we had the Chilcott Inquiry into the Iraq war.  Can anybody tell me if it&#8217;s still going on, or have they drawn stumps?  And again, we all know the outcome - it was an illegal war, there were no weapons of mass destruction, but it removed a Middle Eastern loose cannon, and having sown the wind, we have reaped the whirlwind.</p>
<p align="justify"> And now we have the Leveson Inquiry.  Let&#8217;s get one thing straight that has been annoying me from the outset.  Lord Justice Leveson is not Lord Leveson, he is Sir Brian Leveson, a Lord Justice of Appeal, and no doubt a thoroughly decent man with the patience of Job. When he&#8217;s in court, he&#8217;s addressed as My Lord.  Out of court, he&#8217;s good old Sir Brian.</p>
<p align="justify"> That said, I have real doubts about his remit and what he hopes to achieve.  The little I have seen of the proceedings makes watching paint dry almost exciting, and the lead barrister for the Inquiry looks as if he&#8217;s spent the night before on a park bench.</p>
<p align="justify">I suspect Lord Justice Leveson will need the wisdom of Solomon to address the primary issue of investigative journalism, namely how far can and should a journalist go for a good story.  He is bound to get it in the neck whatever his pontifications. How can anybody, even with the wisdom of Solomon, decide when the Press and the Media are right or wrong to pursue a hot lead? He can, and no doubt, will, lay down certain rules to limit intrusive investigative journalism, but he cannot, and should not, go beyond this, and rightly not.  It is the judgment not of Solomon or Leveson, but the judgment of the editor, and he must be the final arbiter.  As with any controversial decisions, he may be held to account if his journalists overstep the mark, bu that&#8217;s why he&#8217;s in the job.</p>
<p align="justify">Time and space do not allow for a review of recent headline grabbing revelations that would not otherwise be in the public domain without investigative journalism.  For my part, I couldn&#8217;t give two hoots about Simon Cowell&#8217;s love life, or the number of times Ryan Giggs has played away, but I do give two hoots, and more, about MPs&#8217; expenses, or back street abortions, or donations for favours, or genital mutilation, or cricket match fixing, or the dozens of other stories that would not have seen the light of day without investigative journalism.</p>
<p align="justify">So I say to Lord Justice Leveson and his rag bag camp followers, come the New Jerusalem, you&#8217;ll be out of a job, and it&#8217;s back to the coal face.</p>
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		<title>PRIMA FACIE</title>
		<link>http://www.david-osborne.com/blog/?p=133</link>
		<comments>http://www.david-osborne.com/blog/?p=133#comments</comments>
		<pubDate>Fri, 03 Feb 2012 12:35:22 +0000</pubDate>
		<dc:creator>david</dc:creator>
		
		<category><![CDATA[General]]></category>

		<category><![CDATA[FOOTBALL]]></category>

		<category><![CDATA[injustice]]></category>

		<category><![CDATA[prima facie]]></category>

		<category><![CDATA[racial abuse]]></category>

		<category><![CDATA[terry]]></category>

		<guid isPermaLink="false">http://www.david-osborne.com/blog/?p=133</guid>
		<description><![CDATA[The Football Association is agonising over the role of John Terry, the Chelsea and England footballer, and the part he will play in the forthcoming European Championships.  These will be played in June and July, and on past form, the English team will be back home in short order.
 As you will know, Terry faces allegations of racial [...]]]></description>
			<content:encoded><![CDATA[<p align="justify">The Football Association is agonising over the role of John Terry, the Chelsea and England footballer, and the part he will play in the forthcoming European Championships.  These will be played in June and July, and on past form, the English team will be back home in short order.</p>
<p align="justify"> As you will know, Terry faces allegations of racial abuse, and his legal advisers have persuaded the court to list the trial after the final of the Championships.  So the FA is faced with the prospect of Terry leading out the English team with a serious charge hanging over him, but his supporters point out that he is innocent until convicted, and to strip him of the captaincy, or worse still, to exclude him from the team altogether, would be tantamount to an admission of guilt.</p>
<p align="justify">It is worth remembering how Terry finds himself before the court.  After a police investigation, the Crown Prosecution Service were consulted, and after the usual navel gazing, decided to bring the charge.  There is a standard procedure adopted by the CPS before they bring a charge.  After considering the evidence, which includes any statements in denial from Terry, the CPS has to determine if there is a reasonable prospect of conviction.  That is the key to this matter, and one that should not be overlooked.</p>
<p align="justify">Needless to say, the test applied by the CPS does not mean that Terry will be convicted, it simply means that there is enough evidence to place before the court and, if accepted, would be sufficient to found a conviction.  As the lawyers would have it, there is a prima facie case to answer.</p>
<p align="justify">So if Terry is to play in the European Championships, and especially if he is to captain the team, the world and his dog will know that he stands accused of racially abusing a black player during a football match.  There are now dozens, if not hundreds, of black football players throughout Europe, and the world and his dog will hold its breath every time Terry goes into a sliding tackle on a black opponent.</p>
<p align="justify">And what happens if a black player, having felt the full force of one of Terry&#8217;s trademark tackles, complains that he has been racially abused?  After all, there&#8217;s no smoke without fire, and Terry is placing himself in an invidious position.</p>
<p align="justify">There are two options: bring the trial forward to a date before the start of the Championships.  If Terry is acquitted, end of story, and he is free to get on with the job he does best without a stain on his character.  Or, the less preferred option, exclude him from taking any part in the Championships, and possibly damage even further England&#8217;s faint hopes of putting on a good show. </p>
<p align="justify">And what if he is subsequently acquitted?  The FA will finish with egg on their faces, not the first time, and Terry&#8217;s legal advisers will almost certainly seek substantial compensation for their innocent and rightly aggrieved client.</p>
<p align="justify">Time to rethink the whole sorry mess! </p>
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		<title>GIVE AND TAKE</title>
		<link>http://www.david-osborne.com/blog/?p=132</link>
		<comments>http://www.david-osborne.com/blog/?p=132#comments</comments>
		<pubDate>Fri, 02 Dec 2011 16:31:25 +0000</pubDate>
		<dc:creator>david</dc:creator>
		
		<category><![CDATA[General]]></category>

		<guid isPermaLink="false">http://www.david-osborne.com/blog/?p=132</guid>
		<description><![CDATA[When the Coalition Government was formed, it was inevitable that Ken Clarke would have to be included in it.  As a Tory ‘Big Dog’ over many years, or as some might call him, a Tory ‘Old Dog’, it was better to have him inside the tent pissing out than outside pissing in. Theresa May, the [...]]]></description>
			<content:encoded><![CDATA[<p><font face="Arial">When the Coalition Government was formed, it was inevitable that Ken Clarke would have to be included in it.<span>  </span>As a Tory ‘Big Dog’ over many years, or as some might call him, a Tory ‘Old Dog’, it was better to have him inside the tent pissing out than outside pissing in. Theresa May, the embattled Home Secretary, bears testament to that.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><o:p></o:p><font face="Arial">Ken came in with a brief to cut public spending, and the two obvious candidates were legal aid and the groaning prison population.<span>  </span>But the devil is in the detail.<span>  </span>Legal aid is being cut, but court costs are shooting up as litigants in person are trying their hand at advocacy, and judges are bending over backwards to humour them.<span>  </span>This means that the backlog of cases, already too long by half, will increase year on year as relatively simple cases become more and more protracted.<span>  </span></font><font face="Arial"><span></span>I have in mind one of my own cases, originally listed for one day, and now into its fourth day with no end in sight.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">The prison population is now greater than ever, with no signs of abating, so Ken has come up with a cunning new plan.<span>  </span>He will abolish the ill thought out indeterminate sentence of imprisonment for public protection, but as a <strong><em>quid pro quo </em></strong>to humour the Tory backwoodsmen and their ‘hanging is too good for them’ mantra, he will introduce a ‘two strikes and you’re out’ sentence for violent and sexual offenders.<span>  </span>They will receive an automatic life sentence, and presumably, as before, the judge will set the tariff.<span>  </span>Although not clear, I assume that with the abolition of IPPs, these ‘life’ sentences will be determinate.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">All this smacks of making law on the hoof and a knee jerk reaction to Joe Public.<span>  </span>For my part, I am in favour of the abolition of IPPs.<span>  </span>Experience has shown that the Parole Board, who have the last say on release, are often too timid in their approach, and if they are given any opportunity to refuse parole, they take it.<span>  </span><o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">This has had far reaching and unintended consequences for the prisoner and the prison population.<span>  </span>In many cases, prisoners under this regime have served sentences well in excess of the maximum sentence allowed if the judge had passed a determinate sentence.<span>  </span>On any view, this is manifestly unfair.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">But the ‘two strikes and you’re out’ plan is yet another poorly thought out remedy to violent and sexual crime.<span>  </span>Do the judges really need the Government in the shape and form of Ken Clarke to lay down the law on sentencing?<span>  </span>Long gone are the days when judicial appointments were made on the golf course or the grouse moor.<span>  </span>Judges are now appointed on merit, although some might disagree.<span>  </span>They attend a stringent vetting process, and after appointment, they are subjected to sentencing seminars and continuous appraisal to keep them up to speed.<span>  </span>In short, they are professionals, not well meaning amateurs.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">As the Court of Appeal is so fond of reminding us, each case must be decided on its own particular facts, and it is a foolish and insensitive judge who ignores them.<span>  </span>To apply an arbitrary flowchart ignores any mitigating circumstances surrounding the offence, making otiose the attendance of counsel before sentence is passed.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">Still, if Ken is looking for cuts, this might not be a bad thing.<o:p></o:p></font></p>
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		<title>THE COMPENSATION CULTURE</title>
		<link>http://www.david-osborne.com/blog/?p=131</link>
		<comments>http://www.david-osborne.com/blog/?p=131#comments</comments>
		<pubDate>Thu, 10 Nov 2011 10:24:55 +0000</pubDate>
		<dc:creator>david</dc:creator>
		
		<category><![CDATA[General]]></category>

		<guid isPermaLink="false">http://www.david-osborne.com/blog/?p=131</guid>
		<description><![CDATA[The government has decided to reduce the funds available to the Criminal Injuries Compensation Authority (CICA) by £10 million, much to the vocal dismay of the Victim Support Agency. At the same time, the government has decided to ban “referral fees”, which are controversial payments received by insurers, garages and even the emergency services in return [...]]]></description>
			<content:encoded><![CDATA[<p><font face="Arial">The government has decided to reduce the funds available to the Criminal Injuries Compensation Authority (CICA) by £10 million, much to the vocal dismay of the Victim Support Agency.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">At the same time, the government has decided to ban “referral fees”, which are controversial payments received by insurers, garages and even the emergency services in return for passing on the names and phone numbers of car crash victims to lawyers and claims management firms, also known as ambulance chasers. They have been blamed for helping to increase premiums by up to 70% over the past two years. The average comprehensive car premium rose more than 30% to £924 during the 12 months to June 30, according to the AA. The ban comes as the Office of Fair Trading said it is investigating high car premiums.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">Following an undercover investigation, a handful of Indian doctors have been offering false medical certificates, and in some cases death certificates, to enable false claims for compensation to be made.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">And finally comes the news that Rupert Murdoch of News International has authorised the payment of £3 million to the family of Millie Dowler as part of the phone hacking scandal, and yet they want more.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">The compensation culture has spiralled out of all control over the last several years.<span>  </span>It is all part and parcel of the “something for nothing” mentality which the outgoing Labour Government nurtured to display its caring credentials as the party of the people.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">The principles behind it may be laudable, but as we have seen time and again, the system is open to abuse, and it is being regularly abused.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">Ambulance chasers are an absolute disgrace.<span>  </span>They ply their tawdry wares on day time television, fronted at times by well known faces who should know better, and in collusion with doctors of dubious ethics, even the most minor injury becomes life threatening.<span>  </span>The advertisements border on the ludicrous.<span>  </span>Some twerp on an insecure ladder falls down and wants to blame anybody but himself, and an octogenarian driver who should never be behind the wheel of a car is shunted, and according to the advertisement, drives away clutching a cheque for £7,500, ready to cause another accident and ready to blame anybody but himself.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">I am not against fair and reasonable compensation where the case is merited, but the problem is that the dishonest applicants and their acolytes spoil it for the rest of us.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">I have done my fair share of personal injury cases following a motoring accident, and I am appalled at the time and money thrown at some of these claims.<span>  </span>In many cases the legal costs far outweigh the award of compensation, and in many cases the claim should never have been brought in the first place.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">Most honest and sensible people who suffer minor injury from time to time get on with the rest of their lives.<span>  </span>Some discomfort after injury is expected, but with the obvious exception of serious and life changing injuries, they live with the discomfort and get on with the rest of their lives, or at least they should.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">With criminal injuries, the CICA has been faced with an ever increasing number of claims, which they have addressed by making ever increasing awards.<span>  </span>Understandably, the government is trying to rein them in, to persuade them to use better judgment and less of the blank cheque approach.<span>  </span>We simply cannot afford to throw money around like confetti at a wedding.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">As for the Dowlers and the £3 million compensation, you can bet your bottom dollar that their “legal advisers” are telling them to hold out for more.<span>  </span>After all, as Rupert Murdoch is one of the richest men in the world, the Sky’s the limit if you’ll forgive the pun.<span>  </span><o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">When greed, not need, becomes the driving force in the compensation culture, it is time for a complete rethink.<o:p></o:p></font></p>
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		<title>ELEPHANT GRAVEYARD</title>
		<link>http://www.david-osborne.com/blog/?p=130</link>
		<comments>http://www.david-osborne.com/blog/?p=130#comments</comments>
		<pubDate>Tue, 11 Oct 2011 11:27:14 +0000</pubDate>
		<dc:creator>david</dc:creator>
		
		<category><![CDATA[General]]></category>

		<guid isPermaLink="false">http://www.david-osborne.com/blog/?p=130</guid>
		<description><![CDATA[Somerset and the West Country are favourite retirement areas for wrinklies of all shapes and sizes, mainly from oop North, where the climate is less agreeable. It is akin to the Elephant graveyard, where old bulls and cows come to die, and with the advances in medical science, are taking longer and longer to do so.  [...]]]></description>
			<content:encoded><![CDATA[<p><font face="Arial"><st1:city w:st="on"><st1:place w:st="on">Somerset</st1:place></st1:city> and the West Country are favourite retirement areas for wrinklies of all shapes and sizes, mainly from oop North, where the climate is less agreeable.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">It is akin to the Elephant graveyard, where old bulls and cows come to die, and with the advances in medical science, are taking longer and longer to do so.<span>  </span>In the meantime, they clutter up the check out tills at their local supermarket, and drive home at 4 mph.<span>  </span>Bless them!<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">Summer time is also a time when the warmer weather brings out the worst in the Great British bull and cow, and no more so than the outfits on show in public.<span>  </span>Whilst this phenomenon is not confined to wrinklies, they do tend to stand out from the herd like a sore toe.<span>  </span>I have learnt to live with singlets, tattoos, shorts displaying legs that should never be on show, even in the privacy of the home, but I draw the line at bare horny feet, with discoloured and unclipped nails, encased in Resurrection sandals.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">And where is Health and Safety when you need them most?<span>  </span>It cannot be hygienic under any circumstances for these feet to be paraded when food is being sold.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">With this in mind, I have been researching the law on indecent exposure, and correct me if I’m wrong, but there seem to be two separate offences.<span>  </span>The first is the common law offence which, in general terms, covers all open lewdness, grossly scandalous behaviour, and whatever openly outrages decency or is offensive and disgusting, or is injurious to public morals by tending to corrupt the mind and destroy the love of decency, morality and good order.<span>  </span>These are indictable offences with unlimited fines and imprisonment.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">There is also an offence of exposure under the Sexual Offences Act 2003, which on the face of it, seems to be confined to the male genitals.<span>  </span>If I am right, then there is no offence committed if a female exposes her genitalia.<span>  </span>A curious distinction, and possibly sexist.<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">I have concluded, sadly, that neither offence covers the indecent exposure of horny feet, and more’s the pity.<span>  </span>But let’s not be fainthearted.<span>  </span>Despite the swingeing cuts in public finances heralded by George Osborne, local councils are still recruiting for completely naff jobs.<span>  </span>So why not a horny foot inspector with ‘on the spot’ fines?<o:p></o:p></font><o:p><font face="Arial"> </font></o:p><font face="Arial">Something needs to be done, and done quickly, to stamp out, or on, this malaise before it reaches epidemic proportions. <o:p></o:p></font></p>
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