Monday, 18 April 2016

“Textalysers” coming soon?

Policeman stops woman for texting but she is applying her make up
Targeting distracted drivers
I already have a great deal of experience dealing with breathalysers, maybe I’ll soon need to expand into “textalysers” if this plan from America takes off.

New York law makers are looking to introduce “Evan’s Law” that would allow police to use devices at the roadside to see whether drivers have been texting while driving.  The name comes from Evan Lieberman who was killed in a car crash when Michael Fiddle claimed he fell asleep while driving – in the UK Fiddle would likely have been guilty of causing death by dangerous driving if he made an admission like that but in New York it seems that wasn’t enough to bring a charge against him as a grand jury refused to indict him.  The parents of Mr Lieberman felt there was more to the story than Mr Fiddle falling asleep and were able to force the release of Mr Fiddle’s telephone records, which showed he had been texting sometime earlier, although a judge said that had not been a factor in the crash.

The textalyser aims to give police the ability to immediately check whether a driver has been using their telephone while driving.  If that were your phone you may well be concerned about police officers having access to the private data on your phone, such as pictures, message contents and so on.  Presumably, to have any real use the device would have to access all apps capable of acting as a messaging service not just the standard text messaging app.  That would mean it accessing your Facebook, Twitter, WhatsApp, Tinder, Instagram and so on accounts – if it can’t do that then you have to wonder what the point of the device is.  If it can do that then you should be worried about police officers having unrestricted access to all your communications on demand because in New York, the proposed law will mean that refusing to hand over your phone is an automatic one-year driving disqualification!

Supporters of Evan’s Law say that the devices will not reveal any personal information, such as the content of text messages or calls but that appears to be completely untrue with the manufacturer of this device saying it allows access to data such as, “call logs, contacts, calendar, text messages, media files and more”.  In the device brochure, the manufacturer makes clear that in addition they will allow police complete access to “app data, chats, passwords” and for all that data to be saved to the police’s device and shared with others by the police.

Jacy Good is one of the USA’s most vocal campaigners against distracted driving and said that, "[i]t is critically important that distracted driving laws [such as mobile phone use] are as strictly enforced as drink driving laws have become".

The problem with treating mobile phone use like drink driving is that the two things are nothing alike.  A person accused of drink driving will sober up relatively quickly but somebody accused of causing a fatal accident while texting on their phone can never un-send that text nor delete their mobile phone operators record of the message, so you have to wonder why police need immediate access to suspects phones at the side of the road.

These devices already exist and the manufacturer claims to have “more than 30,000 units deployed across 100 countries.”  They appear to be designed to allow police to quickly find information relevant to missing people or make quick connexions between gang members – given the brochure mentions that their device is, “… the primary choice for forensic specialists in… military [and] intelligence…” you might conclude that it’s also intended as a speedy covert data collection device for quickly and quietly taking all data from a phone without the owner being aware.

If they are used in motoring cases in the USA you can bet that they’ll make their way to the UK for deployment against British drivers.  At that point, we need to ask ourselves whether completely surrendering our right to privacy from government agencies such as the police is something we really want to be doing.  Ask yourself this, if the government gave the police the right to enter your home and demand all data from your home computer would you think that was acceptable?  When mobile phones hold the same (if not more) personal data about us, should we let police have access to that same data just because we happen to be driving a car rather than sitting in a sofa?

Wednesday, 13 April 2016

Celebrity threesome privacy injunction

Not actual footage of [CENSORED] or [CENSORED]
The hot legal news story of the past week has been the super injunction granted to [CENSORED] who is the spouse of [CENSORED], a world famous person in the entertainment industry.  The injunction revolves around claims that [CENSORED] cheated on [CENSORED] by having a threesome with two other people, one of whom is a “businessman” who would like to make a lot of money from his relationship with [CENSORED] by stabbing [CENSORED] in the back.  Presumably so he can retire early.  I don’t know, I’m just guessing here.

Understandably the newspapers want to print all the steamy news about how [CENSORED] did this, did that or did the other to his two threesome companions, all behind the back of [CENSORED] and then went on to have an affair some months later.  Meanwhile, for equally understandable reasons both [CENSORED] and [CENSORED] would like to keep the story a secret.

I have to admit that I haven’t thought much about injunctions since I left Bar School some years ago so I had to look up exactly what they are and when you can get one.  In short, an injunction either requires somebody to do something or, more commonly, prevents them from doing something.  To get one such as this celeb super injunction you must show the court that:

1.       You have a grounds to bring proceedings; and
2.       The other party is threatening to (or actually has) behaved unconscionably or is/has interfered with your equitable rights; and
3.       It is just to grant the injunction; and
4.       Damages would not be a sufficient remedy.

An injunction preventing the publication of information is a powerful weapon as we are seeing at the moment with many of us fully aware who the people involved in this case are but not able to say.  It is also increasingly an irrelevant and obsolete concept in desperate need of reform.

Because I live, work and write in England, I cannot say who is involved.  I know that publications in Scotland, the USA and, I think I’m correct in saying, New Zealand as well as at least one Irish blog have published the names, but I cannot say which publications these are because I might breach the injunction simply by pointing you in the direction of the information – obviously the High Court doesn’t know about Google – incidentally, Google points to the information if you know what to search for, how are they not in breach and being shut down?

Many of the foreign publications (yes I’m including you in that Scotland with your weird laws that you keep all to yourselves) are scared enough of the English courts that they have either refused to publish their stories online or, in one case, have blocked British internet users accessing the relevant stories.  Not the Irish one though… he does not give a crap!
Shh... don't tell the tabloids

The truth though is that if you know how to find information on the internet (and who doesn’t) then it is pretty easy to discover the identity of everyone involved, which makes a mockery of the injunction in England and Wales.  If you know how to make it appear that you are outside of the UK then you can even find the hidden stories.  The whole things reminds me of the ‘Spycatcher’ silliness where the Government of the day banned publication of Peter Wright’s book but, even in the pre-internet days, it was easily obtainable from friends holidaying abroad (including Scotland… again – what do you people have against our English injunctions eh??) who would bring sacks back to hand out.  In one go the Government turned what would have been a relatively minor and obscure autobiography into a worldwide best seller and its author into a millionaire.

Clearly there must be some balance between an individual’s desire for privacy, their right to a private and family life and the rights of the rest of us to know what’s what in the world.  I have to question whether the story of [CENSORED]’s partner, [CENSORED], fucking two other people and maybe having an affair a few months later is really in the public interest.  If the philander were a politician or some sort of campaigner for family values then I can see how it would be relevant.  But that isn’t the case.  The only thing I have seen that comes close to having any shred of public interest is that [CENSORED] is involved with a sexual health charity – but that strikes me as a very tenuous point.

It has been said that this injunction is wrong because if it’s allowed for [CENSORED] and [CENSORED] then it will allow politicians and other important people (Dominic Strauss-Khan’s name is often mentioned) to get away with anything they like.  One writer (who I cannot name for fear of letting you know where to find out the names of either [CENSORED]  or [CENSORED]  or even businessman, [CENSORED]) said, “Fear of public exposure is about the only way we can restrain wrongdoing by the rich and the powerful”.  This is true and yet wrong.  On the one hand, fear of being found out may keep many a bad man good.  But on the other hand, why should somebody be subject to a gross invasion of their private and family life just because they happen to be rich (or married to someone who is rich)?  Also, who are we to judge what counts as “wrongdoing” worthy of public condemnation when the activity is not a crime and has no bearing on the public at large? 

In a properly functioning system a judge should be capable of telling the difference between allegations against people in positions of power versus people whose sole claim to fame is that their partner’s job it is to entertain the masses.  Revelations about a politician may show the public that he is not a man of his word while maintaining the secrecy could leave him open to blackmail by those in the know.  Whereas, the public have nothing except titillation to gain from knowing that the woman on the tele in that programme about Norwegian pig farmers who solve crimes in their spare time fucked him off Emmerdale Farm one time while being watched by an elderly badger (I don’t know what celebs get up to but I assume it’s all weird).  Knowing what the politician who proclaims family values during the day while paying to be tied up, flogged and pissed on behind his wife’s back in the evenings tells us that he’s a man we shouldn’t trust.  But, what does our knowing that the partner of a celeb cheated on said celeb and no doubt caused serious damage to their relationship tell us?  I’d suggest nothing at all.

The story shows us two things.  First, national privacy injunctions aren’t really worth the effort – had the Sun published this story last week it would have blown over by now with most people shrugging and saying “who cares”.  Even the “new” revelation they held back for the weekday edition that [CENSORED] had an affair five months after the threesome would have attracted little attention.  But, because of the injunction it’s now been international news for a week and will continue to receive a huge amount of media attention until either the injunction is removed, which is probably will be, or until everybody in the country finds out anyway by a process of drip-feeding. 
 
None of these men is [CENSORED] or [CENSORED]
Secondly, if we are going to have privacy injunctions, and I think we should, they need to be seriously beefed up to allow enforcement internationally.  This sort of thing requires standardising of laws across numerous jurisdictions (something I know the #Brexiters hate) and a robust system allowing breaches to be punished wherever they occur.  This is a problem because Americans love their freedom of speech more than we love tea and are often very unhappy at anything that waters down that right.  While many European nations have even stricter privacy laws than us in the UK.  For it to work privacy and free speech laws would need to be standardised across the globe… good luck negotiating that.

In conclusion, is this story a damning indictment of the British courts?  No.
Does keeping the story out of the public domain hurt the public interest in anyway? No.
Is it simply a story being manufactured by the press to get their own way and sell more papers? Yes.

More importantly, it shows us that the concept of national law focusing solely on what happens within national boarders is something we will have to let go of in the future to make way for a well-designed and robust international legal system that can operate seamlessly across a variety of different jurisdictions.

Friday, 8 April 2016

Panama leak: What has David Cameron done wrong?

David Cameron

You may (or may not) be surprised to hear that I don’t think David Cameron did anything wrong by benefiting from the Panama-based offshore trust that his father set up.  In my opinion, if a person can legitimately reduce their tax liability then they should be able to do so.  I said the same back in 2012 when Mr Cameron described comedian Jimmy Carr as “morallywrong” to put his money into the K2 tax avoidance scheme

That said, a number of people are now saying that the fund with which Cameron was involved actually increased the tax liabilities of the Cameron’s rather than reducing them.  The rationale behind this claim is that being based in Panama may lead to high returns to off-set the higher tax.  This seem reasonable, but if that is the case I am confused why the Prime Minister hasn’t simply said so from the beginning and I’m even more confused why he felt the need to off-load this investment before becoming Prime Minister and saying he would crack down on tax avoidance.

So then what did Cameron do wrong?  Two things I think.  First, he misled the British public (and for once we should take a stand against politicians doing that); and secondly, he has been shown to be a hypocrite of the highest order.  You may say “well they’re all hypocrites” but that’s no reason to put up with it.  If all police officers were corrupt you wouldn’t argue there’s no point doing anything; well, I hope you wouldn’t anyway.

Mr Cameron has in the past few days told us that his tax affairs are “private”.  The same thing he said about Conservative MP and current London Mayoral candidate Zac Goldsmithwhen he was reported to have lodged much of his £200M fortune in the Cayman Islands.  After saying it’s all my own business and none of yours, Downing Street spokesmen, presumably on the instructions of Mr Cameron issued some more statements.  The second statement said Mr Cameron had “no shares, no offshore trusts, no offshore funds”.  Later clarifying that, “the prime minister, his wife and their children do not benefit from any offshore funds”.  A further statement told us that the Cameron family would not benefit from any offshore funds in the future.  To the casual observer this might look like a denial of any benefit from offshore funds.

The Prime Minister has subsequently confessed that he did in fact benefit from money kept in Blairmore Investment Trust, the Panama-based fund created by Ian Cameron, the PM’s dad.  He said that he sold “everything – shares, all the rest of it – so I can be transparent.”  If transparency is his thing, then you might wonder what all the stonewalling was about in the first four statements to the press!  You might also be curious to know what “all the rest of it” includes.

At this point, I’m going to ask again why, if Mr Cameron is not making any tax savings from these investments has he not said so?  He just kept issuing misleading statements about “offshore funds”. When interviewed by Robert Peston the Prime Minister did say that he had paid all his taxes, which is nice.  But, then why did he go three days talking about offshore investments rather than just telling us from the beginning, "yes I had some money abroad, I paid all my tax on it, thank you very much."

If the arrangement worked as Mr Cameron describes and he paid all his taxes then the sale of the assets that took place just before he became PM will show up in his Parliamentary declarations, won't they?  Well, what needs to be declared?  According to www.parliament.uk,

"MPs and Members of the Lords must declare certain financial interests.

The purpose is to provide information on any financial or non-financial benefit received by a MP or Member of the Lords which might reasonably be thought by others to influence their actions, speeches or votes in Parliament or influence their actions taken in their capacity as a Member."

Is the fact you've recently been invested in an offshore fund and are now proposing a crackdown on similar funds that help tax avoidance something that "might reasonable be thought by others to influence [and MP's] actions, speeches or votes in Parliament"?  I'd say it is, so it's surprising Mr Cameron neglected to declare this income.

Something about the PM’s claims strikes me as unbelievable at first glance – he says that he paid UK tax on the money he had put in Panama.  As somebody else said on Twitter, putting your cash in an offshore investment fund and then paying tax on it is a bit like smoking cannabis but not inhaling!  Jo Maugham QC is an expert tax barrister who has this to say about Panama:

“For the purposes of UK tax law, most tax havens are the same. There is no magic effective in UK tax terms that can only be performed in Panama. Moreover, Panama is not next door. It is not a British tax haven with the comforting familiarity such brings. It does not enjoy an especial reputation for trust and solidity.

People think of these things when they are choosing where to put their money. They are big disadvantages for Panama.

So there has to be a reason why you go there.

What Panama has offered – its USPs in the competitive world of tax havenry – is an especially strict form of secrecy, a type of opacity of ownership, and (if the reports of backdating are correct) a class of wealth management professionals some of whom have especially compromised ethics.

You go to Panama, in short, because, despite its profound disadvantages, you value these things.

And the question you should be asking is, what is it about this Mr X or that Mrs Y and his or her financial affairs that causes them to prioritise secrecy or opacity or (if the reports are correct) ethically compromised professionals above all else?”

Let’s imagine for a moment that these are not press releases issued by a spokesman but answers given by the PM in a court of law – how would they be treated?  If I were cross-examining him he would face some pretty strong questions on why he couldn’t have simply answered the questions on day one, day two or day three.  I’d also be attacking him for his past statements on tax-avoidance, particularly where Jimmy Carr, Zac Goldsmith and others are concerned to highlight his hypocrisy.  How would the judge act in summing up the case to the jury?  I’d expect him to have some guidance for the jury about how much faith can be placed upon the answers of a man who has repeatedly tried to dodge the question and has repeatedly given what the jury may consider to be misleading answers before them.

So, over to you ladies and gentlemen of the British public – are you content with a Prime Minister who calls others “morally wrong” but neglects to mention his own, very similar, investments?  Are you content with a Prime Minister who when caught out tries to wriggle out of it and mislead you?  Can you trust such a man to lead you and to take decisions in your best interest rather than in his own?


It’s your decision.

Wednesday, 6 April 2016

Mitigation: the art of not putting your foot in it

Judge hearing a plea in mitigation
"What the actual feck did you just say, Mr Diable?"

One thing all advocates need to learn is how to put mitigation in the best possible light.  A very common mistake, one I see happening all the time, is advocates who blame a client’s misfortunes on their conviction, e.g. any sentence that begins “As a result of this conviction Mr X cannot…” is usually going to go wrong.

Before I move on I am going to make clear that I am not criticising any individual mentioned in this post and that I was not in court for the events described so I am relying wholly on press reports.  There are many reasons why an advocate may approach a case in a given way and people on the outside will not be aware of those reasons.  The facts reported by the press are probably not a perfect reflection of how mitigation was handled and it may well be that they completely distort the undoubtedly wise words of Counsel; however, the reports do reflect advocacy that I see on a daily basis so I am going to treat them as if they are accurate.

In the recent Tulisa drink driving case, the advocate (a very experienced QC who probably doesn’t appear in the magistrates’ drink driving cases very often) is reported to have told the court that her client had already been punished after news of the incident leaked to the press.  The press also reported the advocate saying that Tulisa’s acting career is on hold because of the court case:

“She is a talent. She has been signed up by an agent in Hollywood and is due to start an acting career there.

“Everything has been put on hold because of this. She has been unable to work until this is resolved.

“The conviction will cause her difficulties not only entering the US but also working.”

Evoking a sense of sympathy in the magistrates’ minds for the defendant is a good plan that does work, so why is the reported approach wrong?  For me it comes across as an attempt to say “I shouldn’t get such a harsh punishment because I’ve suffered as a result of this”.  Well if you lost a leg then maybe, but in most cases it is just asking for a furious judge to point out that the reason Tulisa (or whoever the defendant may be) has suffered is because she committed a crime and she should have thought about the consequences before she did it – in a flash any sympathy for the defendant is gone.  I have seen this happen.

The statement also appears to contain elements that are difficult to believe – if I were a judge and didn’t believe the mitigation I’d not be very lenient.  A pending court case does not prevent you leaving the country unless there is a specific bail condition, so I have no idea why should could not have travelled to the US and returned to the UK for the hearing.  I have had clients accused of drink driving who have nonetheless gone on to begin careers in the USA both during and after the life of the court case.  Yes, it causes some problems but nothing that requires a career to be put on hold.  In any event, we come back to the reaction of any sane judge who should be demanding to know “so what?”  A reasonable judge should be asking, “well if Tulisa knew this would cause her so many problems then why is she crying to me about it?  Why didn’t she think about that before she drove?”  A very angry or cheeky judge might even add, “Why didn’t she simply take a cab – she can obviously afford it if she can afford to hire a QC to come along to court today?”

The advocate went on to say that the court should take into account Tulisa’s “celebrity status” and the “humiliation” that came with the publicity.  Asking a court for special treatment because you are famous makes me want to weep – I can’t imagine how that could possibly sound good.  Again, any reasonable court should be saying that these are things she brought on herself.  In any event the humiliation is no different to that suffered by anybody who’s conviction is reported in the local papers – true it may not be reported worldwide but everybody that person knows could well read about it, I think that will seem just as humiliating to anybody else.

When you are mitigating you often want to express your client’s remorse and the big problem with all of these approaches is that they paint a picture of somebody who is upset about their arrest and conviction because of the effect it is having on them; i.e. it is not genuine remorse.

I don’t know what Tulisa paid for her QC, but £2,000+ wouldn’t surprise me.  I’ve certainly had clients insist on instructing senior juniors who have charged £1,500 for a similar short hearing at the same court.  I expect she instructed solicitors, who will have charged her a similar fee to the QC, if not more (there are certainly firms who ask for £8,000 up front when you contact them).

The press reports a reading of 54mg in 100ml breath so what sentence would Tulisa expect for that?  The sentencing guidelines indicate a starting point of 12 to 16 months disqualification and a fine.  Tulisa was banned for 15 months and fined.  This is at the higher end of the sentencing range and suggests the bench were not impressed by the mitigation put forward.  On the facts reported, I would have expected this sentence to be imposed on an unrepresented defendant.

What would be a better approach for an advocate to take?  I also ways pick one or two themes to talk about in mitigation and then craft my words around those.  Based on the reports, I’d be looking at themes of remorse and change.

First, I would get rid of anything that suggests this person deserves special treatment because of who they are – they don’t and it undermines both of my themes. 

I’d begin with remorse – not just say it but show it by taking the court through how their actions have affected them and others around them.  I would want to include character references at this point to show the client’s normal personality and tactfully seek to cut out their offending behaviour from their normal everyday persona.  

The we move on to change, I would want to show the court that something has changed since the offence – not just oh I can’t go to America and make millions quite so easily but rather go through how the impact of their arrest, the fact of their offending and the humiliation that the conviction brings has brought about a change in the way the client approaches decisions and thus why they are unlikely to make a similar decision again.

I would definitely mention the difficulties that the conviction will cause to the defendant but I wouldn’t linger on them and I would emphasise that these are nobody’s fault but the defendants – there some sympathy is evoked and no judicial wrath has befallen us.

There are circumstances where I would linger on the impact to the defendant because there are circumstances where there is authority that such things should reduce the disqualification, but this is not one of them.

The offence is aggravated by the crash, but it is not a serious one and no injuries were suffered – it’s important to address the aggravating factors and mitigate them.  I would probably stick this in at the beginning as it will flow well from the prosecutors opening of the facts plus if you put it at the beginning you don’t finish by talking about crashes.  First impressions are nothing; last impressions are everything (well nearly).

I’d also be looking to bring in a discussion of the law.  I would want to convince the court that the disqualification period should be reduced to the minimum ban possibleto reflect the defendant’s early guilty plea.

Does this work?  Yes it does!  Recently, I had a lady client of similar age to Tulisa who blew 75mg in 100ml breath.  The Sentencing Guidelines say a 17 to 22 month ban.  She got a 12 month ban plus a three month reduction for completing the drink drivers rehabilitation course!  In another case, my client, Mrs B, blew 50 and received a 12 month ban, again reduced to 9 months following completion of the course – in that case the district judge said that, “I have a great deal of sympathy for Mrs B… I do not enjoy [imposing the driving ban] because Mrs B is ordinarily a totally law abiding person.”

On a side note, I do wonder if Tulisa was treated a little more harshly because of her celebrity.  It is very rare for somebody accused of drink driving to be interviewed and kept in custody for 22 hours.  Also, I think the court was unreasonable in requiring her to state her address in open court.  I have had situations in the past where courts have accepted a written answer to the question – I don’t see any reason why they couldn’t have done so in this case.

Tuesday, 5 April 2016

Fixed fees v hourly rates


Judge examining a very reasonable bill from London Drink Driving Solicitor
"Are you sure you're not undercharging, Mr Diable?"


The Legal Services Board (they oversee the legal services regulators – they’re the bosses bosses boss) has published research showing that firms charging fixed fees are likely to be cheaper than those charging hourly rates.  This is something most of us in the legal services industry already knew.

At London Drink Driving Solicitor, we think that we should be providing an excellent service for a reasonable price.  That doesn’t mean the cheapest - you can get cheaper and with some of those firms you will get a worse service, trust me I’ve reviewed some of their files for unhappy clients.  But what it does mean is that when you instruct a solicitor like me who is working on a fixed fee you know what you are going to pay.

Let me give you an example, I currently have a civil law solicitor doing some very simple debt work for me.  He originally estimated £500 for the entirety of the case.  So far I have paid him £1,825 and the case hasn’t even got a court hearing yet!  Unsurprisingly he’s charging me by the hour.  That’s great for firms because they can estimate a fee and then if they decide case is "more complex" than they expect the fee can go up.  They don’t run any risk because if you as a client don’t like it and refuse to pay they’ll stop working on your case!

Whereas, if I say to a client “I will charge you £X” then I know I have to get the fee correct first time because there is no option to raise the price later.  This is easier for me because I have specialised in drink driving law for years now and am very good at spotting the issues in cases so I rarely get it wrong.  But, from a client point of view it doesn’t matter if I get it wrong because I still have to provide them with the service so if I were to undercharge them they get an even better deal.

Let’s take a typical case I conducted recently.  The client, was accused of failing to provide a specimen of blood for analysis.  In preparing that case, I held consultations with the client and his witnesses, I prepared witness statements, reviewed evidence and prepared for two trials (two because the court treble booked the first trial; this is quite normal sadly).  I’m looking at the claim for payment I submitted to the government agency that refunds legal costs and I can see that preparation took a total of 31 hours!  There was 6 hours and 30 minutes of travel, no waiting, 20 letters and about five hours of advocacy. 

At an hourly rate that fee would total £7,525.  Looking at my total invoices to that client he was charged a total of £3,600 for over 42 hours’ of expert legal work by a specialist solicitor that resulted in an acquittal.  By the way, that's 53% less than if the client paid by the hour!  

Although, an innocent defendant can claim their legal costs back from the government it makes no difference to how much you get back whether you pay £7,525 or £3,600 because the government has put a cap on what you can claim.

So, should you be paying solicitors by the hour or on a fixed fee basis?  That’s a decision for you, but it pays to speak with an expert who knows what work is needed on a case and who can keep costs down.


If you do need a solicitor who charges reasonable fixed fees you can reach me on 020 8242 4440 – just saying.

Thursday, 31 March 2016

Drink driving and self-driving cars

Mr Bean on top of a Mini
Mr Bean's home made self-driving (sort of) car

Because I run London Drink Driving Solicitor and people like to be clever, I am occasionally asked what the legal position is should self-driving cars be released for sale vis-à-vis drink driving.  I assume that a lot of people would like to be able to go out, get drunk and then travel home in their own car without putting themselves or anybody else in danger – nice thought, I like the idea too.

What’s the legal position?


First, section 5 of the Road Traffic Act 1988 says that a person who drives or attempts to drive a motor vehicle on a road or other public place while the alcohol in the breath, blood or urine exceeds the drink driving limit commits an offence.  It also goes on to say that anybody who is in charge of a motor vehicle with alcohol above the drink driving limit commits an offence.  So, we have two offences, drink driving and being in charge.

For the purposes of this exercise we’ll assume that Tina is alone in a self-driving car that is moving under the control of its own computer on a road that is open to the public and that Tina is significantly above the drink driving limit.  Now we’ve made those assumptions, we need to ask ourselves three questions:
1.       Is a self-driving car a motor vehicle for the purposes of the Road Traffic Act 1988?
2.       Is Tina driving it?
3.       Is Tina in charge of it?

Is a self-driving car a motor vehicle?


Yes, obviously it is… or shall we apply some law and think about it more carefully?  Okay, we’ll do the boring thing and think about the law.

Section 185(a) of the Road Traffic Act 1988 defines a motor vehicle thus:

“’motor vehicle’ means…  a mechanically propelled vehicle intended or adapted for use on roads.”

Well that looks pretty clear cut – I suppose we should probably look at whether there are any exceptions to this.  I mean a lawnmower could be intended for use on the road cutting the grass verge so let’s take a look at the exceptions.  There are a few, but the most potentially relevant is section 189 of the RTA 1988.  That actually includes an exception for lawnmowers – see I told you! – but more interesting is subsection (1)(b), which says “any other mechanically propelled vehicle controlled by a pedestrian which may be specified by regulations made by the Secretary of State for the purposes of this section and section 140 of the Road Traffic Regulation Act 1984”.  This is interesting because subsection (2)(b) says that “controlled by a pedestrian” means a vehicle that “… is constructed or adapted for use either under such control or under the control of a person carried on it, but is not for the time being in use under, or proceeding under, the control of a person carried on it.”  Weird as it sounds, “controlled by a pedestrian” does not appear to require a pedestrian to actually be controlling the vehicle provided it is not being controlled by the occupant.  This is probably because the RTA was drafted in the early 1980s and Parliament never considered self-driving cars.

Anyway, the Secretary of State has the power to issue regulations that prevents motor vehicles being treated as motor vehicles for the purposes of the Road Traffic Act.  Currently, it appears no such regulations have been made, but this section would give the Secretary of State the power to exclude self-driving cars from drink driving laws at a stroke.

Currently then, a self-driving car is a motor vehicle for the purposes of drink driving law.  There was me thinking I was going to be able to wrap this up quickly.

Is Tina driving?


I am not going to bore you with a rendition of the all the authorities on “driving” suffice to say that a driver need not be in the driving seat (Tyler v Whatmore).  Driving should be given its ordinary English meaning and requires a person to have a degree of control sufficient to amount to driving in the ordinary sense of the word (Jones v Pratt).  Somebody who momentarily grabs the wheel, steering the car off the road is not driving (also Jones v Pratt).  A driving instructor who has controls that allow him to take control of the vehicle may be a driver even if he is not in the driving seat (Langman v Valentine)

In R v MacDonagh, the then Lord Chief Justice, Lord Widgery said this:

1.       “The primary consideration as to whether a person is “driving” is essentially a question of fact, dependent on the degree and extent to which the person has control of the direction and movement of the vehicle.”
2.       “One test is whether the accused was “in a substantial sense controlling the movement and direction of the car” (Ames v MacLeod, [a Scottish case]). A person cannot be said to be “driving” unless he satisfies this test.”
3.       “The fact that a person satisfies the test of control in Ames v MacLeod is not necessarily exhaustive. It has still to be considered whether the activity in question could fall within the ordinary meaning of the word “driving” in the English language.”

Burgoyne v Phillips added some extra points:

4.       “The essence of driving is the use of the driver’s control in order to direct the movement of the vehicle however the movement is produced.”
5.       “Whether the defendant himself deliberately sets the vehicle in motion is an important factor.”

In our case a lot will come down to the design and operation of our self-driving car.  If Tina is expected to intervene in an emergency we may get a different result to a situation where she is unable to assume direct driving control of the vehicle at all.

Would sitting in a self-driving car “fall within the ordinary meaning of the word ‘driving’?”  I think not.  Given the car is driving itself, Tina is not controlling the direction or movement of the vehicle, although it is likely that her actions would set the vehicle in motion.

My personal view is that it is unlikely Tina would meet the definition of a driver in a self-driving vehicle.  Although, if the design allows her to take control in an emergency then she may be driving in the same way the driving instructor sat in the passenger seat was a driver in Langman.

Is Tina in charge?


“In charge” is not defined by the RTA 1988 but it was considered in DPP v Watkins where the court said that each case will come down to its own facts but generally courts should consider the following issues:

1.       whether and where he was in the vehicle or how far he was from it;
2.       what he was doing at the relevant time;
3.       whether he was in possession of a key that fitted the ignition;
4.       whether there was evidence of an intention to take or assert control of the car by driving or otherwise;
5.       whether any person was in, at or near the vehicle and, if so, the like particulars in respect of that person.

In our case, Tina is inside the car.  At the relevant time she is travelling, albeit she could be asleep, reading a book or having some more drinks.  We can assume she is in possession of the “key” otherwise we assume the car wouldn’t be driving her home.  We can assume nobody else is in the car.
Tina doing her make up behind the wheel of her car
Ahh Tina is doing her make-up

Point 4 is the most relevant, I think, because it again comes down to the design of the car.  If there is no possibility of Tina controlling the car’s steering, speed, etc then we must say there is no evidence of her intending to take or assert control.  But, if she might be required to take control in an emergency then we would have to conclude that there is such evidence.

Statutory defence


Section 5(2) RTA 1988 provides a defence to being drunk in charge where there is no likelihood of somebody driving while they remain above the drink driving limit.  Again, if Tina might be required to assume control then she cannot afford herself of this defence.  But, if the design of the car offers her no opportunity to control it then she can rely on this defence.

Conclusion


We can see that a lot will rest on the design of the self-driving car.  If it is a moving living room with no way of controlling the driving other than to tell the car where you’d like to go then it is difficult to see how somebody could be defined as a driver.  It would be easier for the person to be convicted of an offence if the design of the vehicle gives them more control but it will depend very much on the facts in each case.

We have looked at what happens if there is one person in the car all by herself, but the situation will be much more complex if there happens to be more than one occupant.

There appears to exist a power that could be used by the Secretary of State to exempt the occupants of self-driving cars from driving offences, although it has to be said it is unlikely that is a use Parliament ever intended when the law was passed.


Wednesday, 2 March 2016

Adblockers are a 'modern-day protection racket'




Who's watching you right now?

John Whittingdale, Tory MP and Government Culture Secretary has spoken out about adblocking software saying they are 'modern-day protection racket' and that they present a threat to the continued existence of the newspaper and music industries.  That’s a pretty big claim, but is it true?

First, what do we mean by adblockers?  Simply, they are computer programs that run on your computer and prevent websites loading adverts when they load the rest of the webpage.  I would also argue that programs such as Ghostery also fall into the category of adblockers because they can block the tracking software that advertisers use to monitor users web browsing activity and tailor adverts based on that activity.  That’s why if you search for a particular pram you might suddenly notice you start seeing adverts for that pram.

In his speech to the Oxford Media Convention, Mr Whittingdale likened the use of adblockers to music copyright piracy, presumably because adblocking means that users can obtain content without seeing adverts and thus preventing website owners gathering income from the advertisers.

For me Mr Whittingdale’s view misses some important points.  First, if adblocking is the equivalent of stealing content then surely adding irrelevant, numerous and often quite large (in terms of file size) adverts must be the equivalent of stealing the users’ data allowance.  I just visited the Independent newspaper’s website, which attempted to load 9 adverts plus 26 trackers – in fairness the Indy used to be much worse and they are the reason I first installed Adblocker.  Too many adverts on a page isn’t a new phenomenon, as far back as January 2012 Googlewas devising ways of penalising websites that show too many adverts following complaintsfrom users
Who's looking at your personal data right now?

I briefly mentioned that many advertisers use trackers to monitor users’ activities.  This is one of the most troubling aspects of online advertising.  These trackers can monitor all aspects of a person’s internet use from the sites you visit and what you search for online to who you are, where in the world you are what language you speak and information about your computer.  They don’t do this for fun, they report this information back to the people who created the tracking software.  You may well think that this is potentially a huge breach of your privacy… and you’d be correct.  Think of it like this – how would you react to a man with a clipboard following you everywhere you go, writing it down and reporting all your daily activities to be recorded in perpetuity?  That is what internet advertisers are doing to you.

Lots of people object to having websites automatically play video adverts, clutter their screen and eat up their data allowances with adverts.  Many people also object to having everything they do online monitored, not because they are doing anything wrong but because their banking information, medical history, sexual preferences, etc are none of anybody else’s business.

So, in short when advertisers complain about users blocking their content they have only themselves to blame.

On a side issue, it’s curious that a Conservative government should be trying to influence the market by restricting consumer choice to prop up failing business models – not a very conservative position to take you might think.