Easter

Maundy Thursday 2023

The story of the trial of Jesus of Nazareth has always fascinated me.

I happen to be a non-militant atheist but that hardly matters, for the gospels’ narrative(s) of the arrest, trial and punishment of Jesus of Nazareth is(/are) set out in largely secular terms.

Nothing – or almost nothing – depends on any miracle or divine intervention.

(This contrasts with the narrative(s) before Palm Sunday and after the crucifixion.)

It is essentially a human story – about what humans did to to someone who they saw as human.

Of course, it is difficult to make sense of some of the narrative(s) – not least about how someone accused of those crimes ended up being executed by the imperial power by means of crucifixion.

One day, perhaps, I will set out more thoughts about this trial process – and in a way which is satisfactory (I hope) to those (of you) who have faith as well as to those (of us) who do not.

But in the meantime, I mention this to show that even where there are fundamental differences there can be common ground.

And it is always good to find it if you can.

Happy Easter, or Passover, or holidays, to all my followers – and I will return to the blog on Tuesday.

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The problem of PDD – the Public Display of Defendants

5th April 2023

Let us start with the old adage: justice not only has to be done, justice must also be seen to be done.

The phrase is sometimes attributed to this very short judgment from 1923, which contained:

“…justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

The saying reminds us that justice is not only about process – it is also about performance.

An adjudication by a court not only resolves a dispute between parties (even if one of the parties is a prosecuting authority) but is also a social fact that, in turn, goes to whether there is justice in a community as a whole.

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In the last week there has been two striking examples of the performative element of justice.

One was in a Manhattan courtroom, where one defendant was photographed with his attorneys in a courtroom, but he was spared the “perp walk” and other humiliations.

Another was in an English courtroom, where the convicted murderer refused to come up from the cells to attend sentencing.

The Secret Barrister has written well and convincingly about the latter incident.

As the Secret Barrister indicates, this may be a problem which does not have an easy solution, despite the political and media clamour that something must be done.

There is no obvious way that a defendant can be coerced into respectfully attending their sentencing hearing.

Convicts facing life sentences have no real concerns about additional years.

And there is nothing straightforward that will prevent a prisoner gurning and grinning throughout a sentencing, so as to make the victims and their families yet more uncomfortable.

A judge ordering such a distracting and disruptive defendant to be taken back down to the cells defeats the purpose of forcing them to attend the sentencing, if you think about it.

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There is perhaps a deeper and more difficult question here.

At what point does the performative element of sentencing become a thing in itself, rather than the means be which we can see that justice is being carried out?

The history of punishment is full of examples where the PDD was geared to humiliate the convict as an objective by itself.

But.

This sometimes backfired.

For example, those being taken by cart to Tyburn to be hanged often became part of a carnivalesque spectacle.

There are even tales of prisoners playing up to the cheering crowds.

(Image credit)

And this is the problem about justice as theatre: not everyone solemnly plays the solemn parts to which they have been solemnly allotted.

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There has to be a balance between justice as a process and justice as a performance.

Surviving victims and their families should be heard, and they should have a say.

They should see justice being done, as it is done.

This is fundamental.

But those who promise surviving victims and their families that defendants and convicts can be coerced into some performance of contrition or seriousness may be falsely raising the hopes of those surviving victims and their families.

And it may be better not to make such irresponsible promises.

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It should always be remembered that the sentence is the punishment.

By seeking to add performative elements to the process of justice, in addition to any sentence, there is a risk that the performance – the PDD – becomes an end in and of itself.

And if so, then the actual punishment – the sentence – becomes secondary, an afterthought.

The PDD becomes the thing.

And this would be a mistake.

For justice should not only has to be seen to be done, justice has to be done.

The old adage works the other way round too.

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The indictment of a former president

4th April 2023

It would not matter if it were Jimmy Carter or George Bush, Barack Obama or Bill Clinton, Joe Biden or Donald Trump: the fact that a former or sitting president can be indicted, and so thereby is not above or outside the law, is significant.

This is not a partisan point, but a constitutionalist point.

It could be (say) Clinton, but it is Trump.

From a constitutionalist perspective, it does not matter who it is.

But it shows that no president – former or serving – is above the law.

This is a huge moment.

It may well be that Trump is not convicted of the charges against him.

To the extent the charges require proof of dishonesty, that may be difficult to show.

And Trump has spent his business and political careers gaming and manipulating process and leverages.

It is thereby more likely than not that Trump will not get convicted – especially as he now has, as a defendant, due process and constitutional protections on his side.

But.

The fact that it can be shown that he – or any other former president – can be nonetheless subjected to the normal process of law (whatever the outcome) is momentous.

Today is a big day.

It is huge – even if he is acquitted.

Huge.

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Cute baby dragons and the law of copyright

3rd April 2023

There has been another amusing (at least to outsiders) copyright case.

This one is about cute baby dragons.

You do not often get – usually earnest – case reports with illustrations like this:

And it is not often that a judge gets to start off a judgment with a couple of paragraphs like these:

This is all splendid stuff – and this judgment adds to the gaiety of the world of intellectual property law, if not to the gaiety of the nation.

This judgment is well worth reading in its own right – and you can can read it here – and the purpose of my post is not to summarise the case, but to offer some commentary from the perspective of someone fascinated with both the practical law of copyright and the lore of fantastical creatures.

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On the face of it, the case was weak – and two key weaknesses stand out.

First, there was no direct evidence whatsoever of copying.

Copyright is usually about copying – the clue is in the word copy-right: it is (or should be) the law which regulates rights of copying the works of others.

In this case, any copying was to be inferred – for example by whether the defendants had access to the original work.

The judge makes short-shrift of this:

“[…] the question for the Court is whether there has been actual copying, and that requires access and not just the possibility of access. However, that access may either be evidenced directly, or it may be inferred from the possibility of access and other High Court Approved Judgment […] That inference must, of course, be properly drawn. But where there is only a possibility of access and an inference cannot properly be drawn that the alleged infringer actually did access the original work, then there cannot be a finding of copying.

The claimant was not even able to show that the work had been accessed:

“…the Claimant has not satisfied me that access by the Defendants has been evidenced or can be properly inferred.”

The second – related – weakness is that dragons are a fairly generic subject.

One claimed similarity was that both the dragons breathed fire.

Well.

That is what dragons tend to do.

Had the two works, say, had fire-breathing baby wombats…

…then that would have been a remarkable coincidence which may need explanation.

But it is perfectly possible for two creative minds to concurrently conceive of a cute baby dragon with fire-breathing difficulties.

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What does require explanation, however, is how a case as weak as this ever got to a hearing, let alone a judgment.

In civil litigation, few threatened claims ever get litigated, and few of those claims that are litigated ever get to a hearing.

This is because most civil claims are either not continued with when their weaknesses are pointed out, and those which do continue tend to get either thrown out at an early stage or settled.

Those cases – especially in the expensive High Court in London –  that end with a public judgment are rare.

And so when we get a judgment like this, one question to ask is: how on (Middle-)Earth did this case get to trial?

I am not privy to any legal materials other than the public judgment, but I think one clue may be in the successful counterclaim.

The defendants sought two remedies against the claimant.

The first was a (positive) declaration of non-infringement – which would go further than merely defeating the claim in public:

“There is no dispute that the court has the power to grant a declaration of non-infringement, taking into account justice to the Claimant, justice to the Defendants, whether it would serve a useful purpose and whether there are any special reasons why or why not the Court should grant the declaration […]. The Claimant has not suggested any special reasons why it should not be granted, and as I have made clear at the start of this judgment, I consider that it would suit the useful purpose of making clear to the public and the industries in which the Defendants and their creative partners work that the allegations of copyright infringement impugning the integrity of their creativity have been rejected by this Court, providing some justice to the Defendants without any appreciable prejudice to the Claimant.”

The second was for what is called a publicity order:

“…there is no dispute that the Court can make a publicity order against a party who unsuccessfully alleges infringement, where there is a real need to dispel commercial uncertainty […]. This is a discretionary, equitable remedy and the discretion must as always, be exercised judicially, taking into account all the relevant circumstances of the case. I accept the Defendants’ submission that any commercial uncertainty caused by the bringing of this claim for copyright infringement against them has been magnified by the publicity campaign carried out by the Claimant over the past 3.5 years, including around the trial itself. [Claimant’s counsel] submits that she was entitled to publicise her claim and I do not disagree with that. The quid pro quo is that, her claims having been rejected by the Court, the Court will require her to publicise the judgment and order made against her in order to endeavour to redress the balance.”

If this was a claim that could have been knocked-out by the defendants at a preliminary stage, or settled as a nuisance claim, but the defendants insisted instead on going to trial, then obtaining these two very public remedies may have been an understandable case strategy.

The claimant’s use of publicity was very much a two-edged dragon-slayer.

And the claimant’s solicitors were also robust in their use of publicity:

The solicitors’ tweet linked to this spirited (ahem) puff piece:

 

In the end, the claimant suffered adverse comment in the judgment:

“[the claimant] was a little cagey, I felt, about a series of press releases in which she made allegations of copyright infringement against John Lewis, which she drafted and released to the media in November 2019, December 2020 and November 2021. She first said that she released them as she considered that it was in the public interest to do so, and then said that she gained confidence from public support. It was put to her that the press releases were made in order to promote the sale of her books and the financing of a proposed musical based on FFD. At first she denied it, but then accepted that they were, in part, for self-publicity. She denied deliberately releasing them to coincide with the launch of the John Lewis adverts in each year, and sought to say, in effect, that was mere coincidence, and she had chosen the timing as certain particular stages of these proceedings had been reached.”

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Presumably the claimant was advised that bringing any legal claim means that she would have to be prepared to go all the way to trial.

For although most civil claims settle, the paradox is that to obtain a worthwhile settlement you have have to be prepared to go to court if your case does not settle.

And the claimant was presumably also advised that any adverse public judgment would more than offset any gains from publicity along the way.

The claim looks just – just – about arguable – but without any evidence of access, let alone copying, and with a subject being something as generic as dragons – it was never a claim that had any strength.

And given the implicit attack on the integrity of the creatives working for John Lewis, there was always a serious risk that the defendants would just let it go to court and apply for the two remedies that they obtained.

It was a daft case to bring.

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The judgment, however, is a useful document.

For it not only provides a fable of what happens to a weak case that ventures into the dragon’s cave of the High Court, it also provides an informative and detailed account of a creative process.

As such it is a judgment that should be read by anyone – lawyers and non-lawyers – who is interested in the media.

And, indeed, the High Court has, helpfully, self-published its own illustrated version.

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The Indictment of Donald Trump and the Art of the Process

31st March 2023

Another “-ment’.

Following his two impeach-ments, former President Donald Trump now has an indict-ment.

(There is a pleasing parallel to this, as impeachment was the quasi-judicial process which our ancestors provided for dealing with errant politicians instead of having trials on an indictment.)

But just as a cover is not the book, an indictment is not a conviction.

It is instead the start of another process – and Trump has spent a good part of his life gaming and otherwise manipulating processes, both formal and informal.

This is the essence of the book ghost-written in his name, The Art of the Deal.

In that book, the title’s artfulness is about how negotiation processes can be exploited, how leverages can be gained, how opportunities and advantages are created and taken.

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It is almost as if all his career Trump has merely been preparing for dealing with an indictment in the state of New York.

But.

Some sports are more dangerous than others, and some sports are very dangerous indeed.

And so are some processes, and if Trump puts a foot wrong in his engagement with this process then he faces a criminal record and incarceration.

Of course: Trump may, in turn, game and exploit that eventuality, and appeal to his constituency as a victim and so will emerge somehow as a winner from all this.

The criminal process will take place within a wider political-social-media game which Trump will seek to play.

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I am not an American lawyer, and the actual charges for Trump are not yet clear, but it seems that they will be in respect of false accounting.

If so, the offence will not be the payment of any hush money directly, but how that payment was accounted for in the books.

And if this offence requires proof of intent, as well as the facts of the misleading or incorrect accounts, then it may not be straightforward to prove.

Absent a confession or a blatantly false statement, it is often difficult to prove fraud in respect of record-keeping.

Trump will know this, and so will his lawyers – and so will the prosecutors.

For just as Trump will be careful not to put a foot wrong, so will the prosecutors.

And as this is a criminal matter, due process and fundamental rights are on the side of Trump.

(If only all criminal defendants could be as lawyered-up and protected.)

So, yes, the indictment is novel and significant – but so were the two impeachments.

The result of this process is therefore not a foregone conclusion – for either Trump or the prosecutors.

And so both sides now will face their hardest tests.

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“Happily Ever After” – Disney and the Rule Against Perpetuities

30th March 2023

Sometimes there are odd things trending on social media.

A few days ago it was “Catford and Catford Bridge” – and this morning it was “the rule against perpetuities”.

This rule is the law student’s equivalent to the history student’s Schleswig-Holstein question, in that few feel certain they really understand it.

But in essence, it is the means by which the courts can prevent certain property arrangements from having effect too far into the future.

The main encyclopedia of English law describes the rule as follows:

“the rule against perpetuities […] which prevents the creation of interests in property which are to vest at too remote a time”.

And, looking it for the purpose of this post, I learn perpetuity in England is now set at 125 years.

In Florida, however, there seems to have been no such legislative intervention – and this brings us to today’s trending news.

In essence, the lawyers here have adopted an eye-catching variation of the living-person-plus-21-years formulation which some lawyers have used as a way around the rule against perpetuities.

The formulation provides the means of reckoning an end-date by reference to someone now alive.

Given the most recently born of King Charles’s descendants is Princess Lilibet, who was born in 2021, then if she lives to seventy-five the term of the declaration would be at least a hundred years.

I am not a Florida lawyer, but looking at the thread as a whole it would appear that the Reedy Creek Improvement District Board’s lawyers realised there was the possibility of any “in perpetuity” provision being challenged and so they prudently provided the reference to King Charles’s descendants as the fallback position if that challenge is successful.

And presumably those lawyers selected the descendants of King Charles now living because (a) their birthdates are matters of public knowledge and (b) the most recent birth of a descendant now living was 2021.

It would have made less sense if a similar provision had been adopted in say 2012, before the birth of Prince George, as the most recent descendant would then have been Prince Harry in 1984.

I have no idea if such a specific fallback provision is common in legal instruments in America or elsewhere, but contracts providing for what happens if a particular provision is unenforceable is a commonplace in many contracts.

And any sensible lawyer knowing that the rule against perpetuities would be invoked would insert a fallback position.

It is only the eye-catching example which makes this one seem that different.

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The irony here is that this is not the first time Disney have been playful with terms of years for property rights.

Disney has form.

You may recall the Mickey Mouse Protection Act.

One promoter of the legislation, Mary Bono said:

“Actually, Sonny [Bono] wanted the term of copyright protection to last forever.

“I am informed by staff that such a change would violate the Constitution. […]

“As you know, there is also Jack Valenti’s proposal for term to last forever less one day.”

Alas, Disney did not get their way that time.

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Perhaps no lawyer has ever legally defined “happily ever after”.

But from Disney’s perspective, “happily ever after” can be now be defined as twenty-one years after the death of the last survivor of the currently living descendants of the King of England, or even “forever less one day”.

And that is the magic of the law of property.

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Slavery, continued

29th March 2023

This morning the Guardian apologised for the role its founders has in respect of the slave trade, but this apology was not perhaps as significant as the publication of the actual detail of that role.

Apologies are inherently gestures, but details can linger, and it is the provision of information that sometimes can shape public understanding more than any apology.

And the detail that should linger is (again) about just how “normal” the slave trade was to Great Britain as it emerged as a great commercial and industrial power.

I have written before – here and elsewhere – about how laws and lawyers facilitated slavery and the slave trade.

Business people – merchants, lawyers, bankers, insurers – thought little about the evils and misery of the slave trade as they went about their businesses: buying and selling, insuring and investing, gaining wealth and making profits.

To the extent anyone had scruples, they were allayed with (flimsy) devices such as the “Yorke-Talbot Opinion”.

But moving from legal London to Manchester and Liverpool, it is no great surprise that those connected with a northern newspaper at a time of the cotton industry also had connections with the slave trade and with slavery in the United States.

And there are more – many more – areas of our national life built on the back of slaves – and where those involved did not, at the time, think of slavery as objectionable or exceptional, but just as a routine if sad fact of life.

It is this quiet ongoing widespread acceptance of slavery by the many – rather than any loud support by a few – which is more subversive of our self-serving self-image as a liberal and tolerant nation.

Even after our own abolition of slavery and direct participation in the slave trade, our industry and commerce continued to prosper from slavery elsewhere.

And by the time that reliance in turn came to an end, many of our great cities and ports had taken on their familiar forms.

The skylines of many places are the monuments to the wealth derived ultimately from slavery.

And the more awareness and understanding of the detail of this widespread involvement in slavery and the profits of slavery, the better.

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Annual birthday post

28th March 2023

As it is my birthday, I will be taking a break from doing a substantial post here today.

If you would like to help me celebrate, do think about taking out a Substack or Patreon subscription.

Subscribing helps me in providing daily free-to-read law and policy commentary – and paying subscribers also get regular long-reads.

My most recent essay was on Factortame and sovereignty.

And with that, I will be off here until tomorrow.

 

The tragedy of the Human Rights Act

27th March 2023

Here is a playfully mischievous tweet from the Guardian:

And how we can – and perhaps should – laugh at the irony of a newspaper that has attacked the Human Rights Act relying on that same Act when it is in its interests.

It is not even the first time – here is Associated Newspapers seeking to rely on the ECHR in respect of the Leveson Inquiry  and here is Associated Newspapers seeking to rely on the Human Rights Act in 2006.

And there is nothing – absolutely nothing – wrong with Associated Newspapers seeking to do this.

For that is what the law of fundamental rights is for: they can be relied by (or sought to be relied on) by anybody.

There are useful rights for the media generally and journalists in particular under the Act.

And in other jurisdiction – notably the United States – the media and journalists are conscious of the fundamental rights they can rely on and can point to provisions that protect those rights.

The tragedy of the Human Rights Act is that despite it providing rights on which the media and journalists can rely, it is also despised in many in the media and journalism.

There is a mismatch between the reputation of the Act and the substance of the Act.

In the United States it would be unthinkable – even now – for any media organisation to call for the repeal of the First Amendment.

If only media organisations in the United Kingdom were as protective of Article 10 of the ECHR.

But there is a disconnect.

The newspaper in-house lawyers know about these provisions, and they will not hesitate to rely on the ECHR and the Human Rights Act when they can.

But across the office floor, there is not attachment to Article 10.

And that is part of the tragedy of the Human Rights Act.

Over twenty years since it took effect, it is still seen by so many in politics and the media as a partisan ornament rather than a practical instrument.

So entrenched is the dislike for the legislation it is tempting to support repealing the Act and replacing it with a new statute with exactly the same provisions but with a far less contentious name.

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