E-mails are forever

Like diamonds, e-mails are forever. The trouble is, people in business don’t always appreciate that or the way the law can release electronic hound dogs over deleted and buried e-mails to find anything incriminating.

A court in New York examining the collapse of Lehman Brothers has just overseen the review of 4,790,277 electronic documents, searching for phrases such as “don’t share this”, “between you and me” and “big mistake”.

Lehman went bankrupt in 2008 triggering a major global meltdown. It was the world’s largest bankruptcy. The amount by which taxpayers in the United States and Europe have bailed out the incompetent or fraudulent banks now runs at $14 trillion.

Tucked away in Volume 7 of the official Examiner’s report for the US Bankruptcy Court in the Southern District of New York are over a thousand expressions that were used by the Examiner as search words when scanning the e-mails of people in and around Lehman Brothers.

Some of the searches are cleverly designed. For example, searching for “*solven* w/20 (transfer* or mov* or pledg*)” will uncover any e-mail containing a word with “solven” in it, such as insolvent and solvency, wherever such words appear within a 20-word compass of words containing “transfer” or “mov” or “pledg”. So any discussions about trying to move money in the face of insolvency would be exposed.

The search terms also include financial slang phrases such as “hair or haircut or hair-cut”. Other search terms were chosen because some bankers can become careless when under pressure – hence the inclusion of “I don’t think we should” and “dumb”.

Even e-mails subjected to several stages of deletion and expunction can be recovered and used in court. In 1991, in England, the High Court decided that a database that contains “information capable of being retrieved and converted into readable form” is a “document” and therefore something that must, if relevant, be given to the other side in litigation.

Company personnel are sometimes catastrophically candid in e-mails. In the 1990s, Atlantic Richfield Company (AR) was trying to sell its solar energy subsidiary to Siemens. The subsidiary had developed an exciting new solar energy system although, unknown to outsiders, it didn’t work.

A deleted e-mail from one AR employee said: “We will attempt to finesse past Siemens the fact that we have had a great amount of trouble in successfully transitioning the technology from the lab to the manufacturing floor.” Another message called the project a “pipe dream” then said “let Siemens have the pipe.” Siemens sued AR for fraud and the e-mails were used in the trial. 

E-mail vocabulary has triggered other legal problems. In 2006, in Lancashire, Ray Kennedy wanted to register an objection to a building proposal. He duly e-mailed Rochdale council. His legal right to object to the plan was violated, however, when the council’s e-mail system repeatedly rejected his legal document. The planning proposal was approved without any consideration of his objection. 

It turned out that there was chaos throughout all municipal building communications at Rochdale because the e-mail system wouldn’t accept any e-mail containing the word “erection”. 

The author is Professor of Law at The Open University.

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Full article: http://www.thetimes.co.uk/tto/law/columnists/article2570048.ece

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The devil of a case

A voter who was canvassed by the 18th-century candidate John Wilkes said that he’d sooner vote for the Devil.

Wilkes then asked: “And if your friend is not standing?”

Although sympathy for the Devil is not widespread, one keen supporter is Jason Indreland, a prisoner in Montana.

He filed a $10 million lawsuit alleging that his rights as a Satan worshipper had been violated by the prison authorities because he had been denied access to a satanic medallion and literature such as the Book of Satanic Rituals. The case has just ended.

In 2008 Indreland was jailed in Yellowstone County pending drug charges after being caught with 15g of methamphetamine.

While there, he alleged that he was deprived of his satanic pendant and denied access to other paraphernalia of his beliefs such as the book of rituals and the Satanic bible.

He said he was the subject of torments by the prison authorities who did things such as push Christian cards under his cell door and put him in the especially punitive maximum security unit because of his beliefs.

He claimed $10 million compensation for mental and physical anguish and punitive damages. In the case, Indreland represented himself and the interests of Satan.

The courts have been wary about cases featuring a superhuman force.

In an old Canadian criminal case a Mr Finnerty from Ottawa, having dismissed several lawyers stood alone in court. “Who is your counsel today, Mr Finnerty?” asked the judge. “Yer Honour, God is me counsel,” came the reply.

The judge then turned to the lawyer for prosecution and said: “Well, Mr Hambling, that’s pretty tough competition. Would you like an adjournment so that you may consider retaining outside counsel?”

In the case of Indreland and Satan, Magistrate Judge Carolyn Ostby dismissed the claim that the satanic medallion had been confiscated for religious reasons, ruling that the authorities were justified in removing it because the chain was too thick and could be used to choke someone.

The claim that he had been placed in maximum security for religious reasons was dismissed because he had been put there for fighting.

His claim about the tormenting Christian cards was dismissed for lack of proof.

On the only remaining allegation – the denial of satanic literature – the judge ordered the two sides to come to a settlement. That has just happened.

Indreland settled his $10 million claim for $50 and a promise by the authorities that they would review the way that they inform inmates when literature that might promote violence is withheld. He is now serving a three-year sentence.

Satan has been involved in earlier cases. In 1971 Gerald Mayo sued “Satan and His Staff” for violating his constitutional rights.

His writ alleged that Satan had on numerous occasions caused him misery, placed “deliberate obstacles” in his path, and thus “caused plaintiff’s downfall”.

The US District Court in Pennsylvania dismissed the action for various reasons including that there was no evidence of Satan residing at an address within the jurisdiction of Pennsylvania.

The author is Professor of Law at The Open University.

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Full article: http://www.thetimes.co.uk/tto/law/columnists/article2555719.ece

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No sex in court please

Beyond street gangs and drunken upper-class dining clubs, it is generally regarded as wrong for a man to make sexual gestures to a woman he does not know.

Where the man is a police officer at a murder trial and the woman is a juror, it would be inexcusable but that is what is alleged to have happened in a recent case at Nottingham Crown Court.

Detective Constable Ivor Messiah, sitting in the gallery, is said to have puckered his lips at the juror, a brunette in her mid-thirties, blown her a kiss, and then subtly progressed in his repertoire of charades to making a ring with his index-finger and thumb and poking his other index-finger in and out of it.

Nine days into the murder trial, in which a solicitor was accused of hiring an assassin to kill his business partner, the juror, referred to by the judge as “Miss X” passed a note of her phone number to a police officer during a break and asked him to give it to the man in the public gallery who had been flirting with her for several days.

The trial judge, Mrs Justice Dobbs, held a special four-day hearing on the matter.

She found that Miss X had tried to give DC Messiah her number after he had “made a hand movement, like a phone, to his ear”. The note messenger chosen by Miss X was an officer she had seen in the gallery with Messiah but her intended courier refused to deliver it and reported the matter to the court.

The judge ensured that all the jurors had been made aware of the allegations that DC Messiah “had made suggestive gestures of a sexual nature”. They were asked if they were disposed to continue and all but one said yes so he and Miss X were discharged. The judge noted that DC Messiah claimed that he had had “no contact with the juror” and could not be the person who had made gestures to Miss X.

The remaining ten jurors went on to find John Cort and Brian Farrell guilty of murdering Vina Patel, a partner at Cort’s firm. Both men were sentenced to life imprisonment.

Jurors should not be the subject of ardent attention from anyone in court. In 1993 Paul Powell was in the gallery at Cardiff Crown Court when the jury, including “an attractive, smartly dressed young lady”, returned to give their verdict. Powell loudly wolf-whistled the woman and spent the night in jail for contempt.

For a lawyer to consort amorously with a juror is scandalous because this risks justice being perverted by love or lust.

In 1930, during prohibition, Theodore Bruener was disbarred after he was caught in a four-hour, alcohol-fuelled, riverbank sex session with a juror on the case in which he was an advocate.

The Washington Supreme Court declined to record the details of their sexual encounter saying these would be of interest only to “avid readers of erotic literature”. It is sufficient to know, however, that Mr Bruener’s techniques of juror persuasion were not those traditionally taught in law school.

Gary Slapper is Professor of Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7142101.ece

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Braking the law

During 1890s, at the outset of motoring, it was easy for the police to judge if a motorist was speeding. The speed limit was 2mph so if an officer needed to walk quickly to catch up with the car, the motorist could be fined.

Today, it is difficult to judge the speed of vehicles so accurate equipment such as the radar gun is used to determine a vehicle’s exact speed.

The Supreme Court of Ohio, however, has just ruled that a motorist can be convicted of speeding where the only evidence against him is a guess of his speed by a police officer. So someone can be guessed into a conviction.

On July 3 2008, officer Christopher Santimarino was in a stationary patrol car in Copley Township on a road with a 60mph limit. He said he saw Mark Jenney driving a black SUV over the speed limit. He pulled him over and cited him for speeding. Mr Jenney denied that he was speeding and appealed his citation. The case went to trial.

The officer had used a radar device to record a speed of 82mph but this could not be put to the court because he didn’t have any documentary proof that he was certified as competent to use the radar gun. He therefore had to rely only on his personal estimation of the speed.

Officer Santimarino had worked as a patrolman for 13 years and had been trained by the Ohio Peace Officer Training Academy to estimate vehicle speeds visually. To pass his training he had had to show that his speed guesses were accurate to within “three to four miles per hour”.

He testified in court that he had estimated Mr Jenney’s speed was 70mph. Why, if the officer’s margin of error was only 3 to 4mph, there was a 12mph gap between the radar gun reading (82mph) and his visual estimate (70mph) wasn’t considered by the state Supreme Court.

The court did, though, uphold Jenney’s citation and his $50 fine. It ruled that a conviction for speeding could be based solely on the testimony of an officer trained in guessing vehicle speeds, and that “independent verification of the vehicle’s speed is not necessary”.

On January 27, 1896, Walter Arnold, the pioneer of the petrol engine, became the first person to be fined for speeding in the UK. Arnold was driving through Paddock Wood in Kent at 8mph — shockingly over the 2mph limit imposed by the Locomotive Act 1865 for built-up areas. He was caught by a policeman chasing on a bicycle and later fined one shilling (5p).

In one case, it was, oddly, human weakness in estimating speed that led to a conviction.

As a young barrister, Sir Oliver Popplewell was cross-examining a prosecution witness who had testified that his client had been speeding.

The witness was repeatedly pressed to estimate the speed but declined.

Having successfully established the witness’s incompetence in car-speed estimation, Mr Popplewell didn’t sit down but asked one final fatal question: “Why couldn’t you estimate the speed of my client’s car?”

The response was immediate: “Oh, because I have never seen a car go that fast in all my life.”

The author is Professor of Law at The Open University. His new book Weird Cases is published by Wildy, Simmonds & Hill

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7146318.ece

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Here’s a case that happened earlier

Re-enacting alleged crimes in front of a judge isn’t always a good idea. Using a pair of underpants, however, and four bags of sugar, a defence lawyer in Mumbai recently managed to save his client from the death penalty.

Dhirendra Kamdar stood accused of attempting to traffic heroin. He had a previous conviction for drug trafficking that meant that under India’s Narcotics Drugs and Psychotropic Substances Act he would be sentenced to death if found guilty a second time.

The prosecution alleged that he had been caught as he walked with the drugs on a one-kilometre journey from a guest house to get a taxi to the city’s international airport.

Police stated that he had been found with 2kg of heroin packed into four 500g packets that were hidden in his underpants.

At the trial, Kamdar’s defence counsel, Ayaz Khan, argued that the prosecution’s case was unsustainable because it was physically impossible for a man to walk any distance with so much weight and bulk in his underpants.

Using four packets of the size and shape alleged by the prosecution, but filled with sugar, Khan proceeded to show that the prosecution’s allegation was a walk on the wildside of imagination.

The prosecution failed and Kamdar escaped execution.

Courtroom quests for the truth using physical props are always dramatic. In July 1912, at a house in Herne Bay, Kent, Bessie Munday, 35, drowned in a bath.

Her husband, George Joseph Smith, was prosecuted at the Old Bailey for her murder. During the trial, the 5ft bath was brought into the court and used to demonstrate how she might have drowned.

The defence claimed that she had had an epileptic fit but Smith was convicted and hanged. For all the detailed explanations of her manoeuvrings in the bath, it was still hard for Smith to explain how, by a remarkable coincidence, two of his previous wives had died while in the bath.

Reconstructions do not have to be in the courtroom. In 1994, the EastEnders actress Gillian Taylforth sued a newspaper for libel.

The paper had claimed that she performed oral sex on her fiancé in a car on a sliproad to the A1. She claimed he was unwell, that she was merely comforting him, and that a policeman had misunderstood what he saw.

The whole court convened in a nearby car park to watch reconstructions of “the comforting” using an actress in a Range Rover. Miss Taylforth lost her claim, however, after the surprise acquisition of a film of her at a party demonstrating her technique with a sausage.

Not all suggested re-enactments are allowed by the court. In an appeal in 1966, Lord Denning explained that Norbert Rondel had admitted taking the hand of a doorman, tearing it in two, and then biting off part of his ear.

Denning noted: “He said ‘it sounds difficult in cold blood, but I can demonstrate it’. We did not accept his offer”.

Gary Slapper is Professor of Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7138096.ece

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Tread softly because you tread on a lawsuit

Some civil negligence cases are easier to prove than others. A lawyer doesn’t always have to work very hard to win:

Counsel: Immediately after you hit [my client's] trailer with your car, what did you do?

Defendant: I woke up.

One case that looks like it will produce considerable challenges to be overcome is that of Melanie Shaker. Walking home after an evening out in Chicago she fell into a rage with her husband and decided to kick him with some force. She launched the attack but then lost her balance and fell through the front window of a high street beauty salon, suffering significant injuries. She is now suing the owner of that shop for having a window insufficiently strong to “prevent injuries from those coming into contact with it, including pedestrians” and, the writ says, from “intoxicated pedestrians”.

When the shopkeepers were telephoned to be told that someone had broken their shop window they would have regarded that as bad news but they would have been more surprised by the worse news that they were being sued. The attempt to blame the shop is reminiscent of an old Woody Allen joke about a man who sues after his knuckles were badly bruised from being repeatedly hit by another man’s cheekbones.

Ms Shaker is suing the company that owns the retail building, the owners of the land, and the people who run the shop’s business – claiming $50,000 against each party. She argues that the pavement outside the shop was “frequently travelled by intoxicated persons” and the failure to use toughened glass was in violation of local law. She is also suing the hospital where she was treated after the accident, claiming that while she was there $6,000 worth of jewellery she had been wearing and her phone were stolen.

Even where “unbreakable” glass is used in windows, it doesn’t always prevent human suffering. In 1993, a shocking accident occurred at a large law firm in Toronto in which a senior lawyer died. At a meeting to welcome new trainees and in front of a roomful of lawyers, the senior partner decided to demonstrate the resistant strength of the floor-to-ceiling windows on the 24th floor of the Toronto-Dominion Centre where his firm was based. He had carried out the demonstration on earlier occasions. He told all the people in the room the window was unbreakable and threw himself against it with considerable force. He bounced back. He then did exactly the same thing again but this time his proof failed and he smashed through the window.

Gary Slapper is Professor of Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7124445.ece

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A disobedient man

In her book A Vindication of the Rights of Woman, published in 1792, Mary Wollstonecraft said that women and men were equal and that men should not control women. Karen Salmansohn went further in 1994 in her book How to Make Your Man Behave in 21 Days or Less – Using the Secrets of Professional Dog Trainers.

Facing a man with a behavioural issue herself, Ms Salmansohn has turned from professional dog trainers to professional lawyers and is suing the man she claims has broken his undertaking to get married and raise their child.

The story began when Ms Salmansohn met Mitchell Leff over breakfast at the Manhattan bistro Pastis but things have now skidded to the Manhattan Supreme Court. On their second date, Ms Salmansohn said she wanted a baby and Mr Leff assured her he also wanted a child. Their romance developed quickly and before long he had spent $28,000 on fertility treatments for her as well as a trip to Paris and a $10,000 engagement ring.

According to Ms Salmansohn’s claim, Mr Leff undertook to get married, to pay for alterations to her Chelsea apartment to make it family friendly and to pay for her medical bills. But 24 hours after Ms Salmansohn told him that her home pregnancy test was positive, Leff broke off all communication with her and she is now suing to enforce his financial undertaking for her and their baby.

Ms Salmansohn, also the author of How to Succeed in Business Without a Penis, was understandably shocked by Leff’s conduct and said “I may be a self-help expert but I’m not a psychic.”

The engagement ring given by Mr Leff will not carry any direct legal consequence. Engagement rings became popular after 860 AD when Pope Nicholas I announced they would be required for couples intending to marry. The fashion for diamond engagement rings was set in the 15th century by opulent Venetians. Today, however, rings don’t determine anything legally.

Historically, in many countries, where a baby was conceived prior to marriage, the suspected father was invited to marry the expectant mother at a ceremony in which the father of the bride was at hand with a shot gun to ensure the ceremony went according to plan. Referring to one of these shot-gun weddings in a 1928 Arkansas case, the judge said “It appears very highly probable that if there had not been a wedding, there would have been a funeral.”

There used to be a specific legal action in English law for breach of promise to get married but that was abolished in 1970. In Scotland, though, until 1940, where a woman proved that she had allowed herself to be seduced on the promise of marriage, then the actual act of seduction could constitute a form of marriage. If he asked after the seduction “how was it for you?” she could reply “it was truly nuptial”.

Gary Slapper is Professor of Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7118578.ece

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No brains allowed in court

“My whole brain is in there,” said the Canadian lawyer Sean Robichaud as his MacBook computer was declared by a magistrate to be unsuitable for the courtroom. The magistrate aborted the criminal trial and adjourned it until August so that Mr Robichaud could use a printer or fountain pen to carry out the necessary brain transplant to paper folders.

Computers are used throughout the Canadian court system, and the Supreme Court even provides them for lawyers. Why this particular usage was ruled unlawful is a mystery. The case arose from an event on the roads of Ontario. Piotr Lakomy, Mr Robichaud’s client, had been beginning a session of stunt-driving in his Subaru Impreza when he was arrested by police and charged with criminal offences.

As the Crown prosecutor stood up to launch her case, she noticed Mr Robichaud had just switched on his thin, aluminium MacBook. She objected to its use and the magistrate accepted her point, ruling the laptop to be an “electronic recording device” and therefore something prohibited in court.

Mr Robichaud explained that as all his case notes and preparatory materials were on the computer he would be unable to represent his client to the best of his ability without the laptop. It was at that point that the case was adjourned. Later, Mr Robichaud said “I went through law school using only a laptop. I can’t even write anymore. Sometimes I don’t even have a pen”.

In other courts he uses his computer regularly to access case law, documents, and evidence, and to store witness statements. Banning the computer because it was capable of being used as a recording device was decidedly odd because the lawyer had no intention of using it in that way. Mr Robichaud noted “it’s like saying I have the capability to punch someone in the face, and therefore I have to keep my hands in my pockets.”

Explaining the magistrate’s decision to exclude the laptop, a spokesperson for the Ministry of the Attorney-General said that all magistrates and judges have full power over their courts so decisions on which electronic devices to permit are within the discretion they can exercise.

Most judges are now computer-literate. In 2007 a British judge caused an outcry when he said that he didn’t understand the term “website” but that wasn’t because he was trapped in world of parchment and quill pens. He just needed a technical explanation of how a website, like the one in the criminal case before him, was constructed.

Historically, judges have been more likely to object to lawyers’ accessories than their technologies. No advocate has been sent out for having a computer but, at different times, counsel have been judicially denounced for appearing in court with a beard, a white waistcoat, a ponytail, bracelets, brown suede shoes, earrings, and a priest’s cassock.

Gary Slapper is Professor of Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7106649.ece

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Mobile contempt

Judges have occasionally condemned lawyers’ arguments as rubbish. Lord Justice Harman once ruled that “these pleadings ought to go, not to the House of Lords, but to the waste-paper basket”. It’s unusual, though, for a judge to sling visitors’ belongings into the waste-paper basket but that is what Judge Anthony Johnson did recently in Orange County, Florida.

Michelle McRoy, 28, was visiting a court with her young sister. While sitting in the courtroom her phone rang with a clamorous musical jingle and the judge asked why the phone wasn’t turned off. She started to explain but the judge immediately ruled her conduct as contumacious (contemptuous), ordered the phone be surrendered and then threw it directly into the bin near him. He ordered that it be later destroyed by the sheriff’s department.

Ms McRoy said of the judge: “He wouldn’t let me explain to him. He just went off”. She wanted to clarify that she had turned off her phone before entering the court but had then lent it to her young sister who popped out to make a call. Her sister, however, had forgotten to turn it off before returning it.

Ms McRoy, who did not want a contempt of court conviction on her record, appealed. The Fifth District Court of Appeal in Daytona Beach recently ruled in her favour. It decided that the judge wasn’t justified in finding her in contempt. Something might irritate a judge but that isn’t the same thing as contempt of court. 

The trial judge’s order read simply “Michelle McRoy was found guilty of contempt of court. Cell phone is forfeited and to be destroyed by the Orange County Sheriff’s Office”. That was not enough. It should have given a fuller recital of facts that led to the finding, not just the judge’s conclusion. The appeal court ruled that contempt is “an act tending to embarrass, hinder, or obstruct the court in the administration of justice” or something which would “lessen the court’s authority or dignity”. Contempt does not exist “just because a judge feels aggrieved or vexed.”

There are previous instances of judges being irritated by mobile phones ringing in court. In 2008, during a murder trial at Woolwich Crown Court in London, a mobile phone jauntily rang out but as the judge grimly scanned the court to locate and reprimand the thoughtless culprit he realised the ringing was coming from inside his red judicial robes. “I didn’t think I had it with me today” he told his court.

In 2007, Paul Fitton took mobile phone manners into a new territory of indifference. He was convicted of contempt because, while standing in the dock facing a criminal hearing at Blackpool magistrates’ court, he interrupted the district judge to answer his phone and began a conversation with the loud salutation: “Hello there, I’m in court”.

Gary Slapper is Professor of Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7102091.ece

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Too tart a comment?

What began as a snide comment about the way sliced apples were arranged on the top of a tart in a French bakery triggered a two-year legal battle that ended recently in the criminal courts.

Apple pie is often cited as an example of something self-evidently good. In France, however, la tarte aux pommes, might not be in the same category. The events began in April 2008 when a woman and her daughter went into a bakery in Nogent-sur-Marne in Paris. The woman made a withering criticism of the way the baker, Christelle, had patterned the many crescent-shaped apple slices on the surface of the tart. Her denunciation of the tart was so vehement, the dismayed baker responded by saying quelle conne (what a stupid bitch).

The customer’s indignation at this remark was even worse than her indignation at the tessellated tart. Her way of showing she wasn’t a bitch, though, was to invoke a piece of legislation from 1881 and to prosecute the baker for making a “public insult” – an offence with a maximum fine of €12,000.

Once the public insult charge had been made, the judge was obliged to ask a magistrate to conduct an investigation. The judge tried to use mediation to resolve the dispute but the shopper wouldn’t participate. The baker’s lawyer, Maxime Tondi, said: “I have never seen anything like this in my entire career.”

The criminal justice apparatus was then set in motion so the baker was interrogated by police, witnesses were examined and the case thoroughly prepared. Lawyers cut and assembled their arguments with as much care as the most fastidious boulangère would arrange fruit on top of a tart.

Last week, two years after the argument in the shop, the public insult charge finally came to trial. The baker, Christelle, appeared before the 11th correctional chamber of Chéteil ready to defend herself. When prosecutors took their case out the oven, though, it was seen to be half-baked and it collapsed.

The complainant shopper had failed to attend court, so two year’s prosecution work was wasted. The case was dismissed. What the prosecutor then called the shopper can only be imagined.

In England, the clearest line between acceptable and unacceptable public insults has been drawn by lawmakers themselves.

The House of Commons – which acts as its own court – has a list of precedents that have been ruled as “unparliamentarily language”.

Honourable Members calling their fellows any of these names can be suspended from the House. The forbidden insults include: coward, git, guttersnipe, hooligan, sod and rat.

In Canada, legislators have had to withdraw calling other members: a trained seal, pig, jerk and sleaze bag.

In New Zealand, a legislator had to apologise after saying of a fellow member that “his brains could revolve inside a peanut shell for a thousand years without touching the sides”.

Some insults, however, have escaped censure. In 2009 in the Irish Dáil, Paul Gogarty shouted “With all due respect, f** you!” at the Opposition Chief Whip but it was OK because that expression wasn’t on the list of forbidden phrases.

Gary Slapper is Professor of Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7089559.ece

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Discomforting flights

In a leading civil case in 1932, Lord Macmillan said that the principle of negligence could apply to countless situations. He said the law would adapt to “the changing circumstances of life” and that “the categories of negligence are never closed”. In Canada, Marcel Cote recently tried to widen the categories when he sued airline attendants for failing to examine his genitals at 30,000ft.

Mr Cote had been on an Air Transat flight from Montreal to Puerto Vallarta in Mexico in 2008. After an hour, comfortably seated in business class, he suddenly felt discomfort around his scrotum. He went to the toilet and discovered spots of blood on his skin. He then returned to his seat and called a flight attendant. When a stewardess arrived he asked to see a male attendant.

Mr Cote then asked the attendant to give him a close personal examination. Flight attendants receive a good all-round training but that does not include techniques of intimate genital examination so the request was politely declined. Instead, the flight attendant gave Mr Cote some absorbent tissue. Mr Cote was told that a physician would be called if the condition became serious but, in the event, there was no emergency and Mr Cote visited a doctor after the plane landed three hours later. The problem was diagnosed as the rupture of a vein near the scrotum.

Mr Cote sued the attendants and the airline, for failing to provide appropriate medical assistance. He sought damages of $8,000 for the anguish he suffered as a result of their alleged breach of a duty of care. His claim was rejected by Judge Michele Pauze. “It was not incumbent on a flight attendant,” she ruled, “to conduct the medical examination of a passenger, a measure reserved for the medical profession.”

She recognised that Mr Cote might well have experienced anxiety during the episode but she ruled that nothing in the facts proved that the situation was “dangerous or worrisome to the point of requiring the immediate attention of a doctor”. Mr Cote was ordered to pay the airline’s costs.

Passengers have sued airlines in some unusual actions including one in which a Japanese husband and wife sued United Airlines for serving them too much burgundy on a flight from Osaka to San Francisco, thereby causing them to argue ferociously with each other.

Skyway litigiousness reached new heights, however, in 2006 when a group of Belgian passengers on an Air France flight to New York objected to the airline allowing Bonnie Tyler to sing onboard. It was the last flight of the co-pilot before he retired and when the crew discovered Ms Tyler was a passenger they asked whether she’d sing as a special salute to him. She obliged and used the plane’s microphone to belt out her hit Total Eclipse of the Heart. Some passengers bellowed along and swayed in the aisles. But the Belgian passengers didn’t like the song, a No 1 hit in 14 countries, or the public chorus and, in a total eclipse of the revelry, sued the airline for $1,000,000.

Gary Slapper is Professor of Law at The Open University. His new book Weird Cases is published by Wildy, Simmonds & Hill

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7081600.ece

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The awkward scream

In The Importance of Being Earnest, Lady Bracknell says indignantly that “strange coincidences are not supposed to occur”. Mindy Lynn Neugebauer, from Mangum, Oklahoma, might have thought the same thing recently when she was caught by police in possession of drugs.

Ms Neugebauer had texted an acquaintance with a message that said “if you want a hit of this stuff before it’s all gone you better get over here”. What Ms Neugebauer didn’t realise was that when she sent the message she had not keyed in the number she’d intended so it did not go to her acquaintance but to another man altogether. The random recipient happened to be Chris Counts – an agent at District III Drug Task Force. You can imagine his reaction when he opened the text.

Agent Counts texted back immediately to ask her for the address and she replied with the information. He then checked the sender’s phone registration and identified Ms Neugebauer. Officers turned up at her home and asked her about the text. She said it was just a reference to some marijuana she had wrapped up in a cigar paper.

However, she allowed the officers to search her home and under her mattress they found a plastic bag containing suspected cocaine. She was issued with a felony warrant on charges of possession of a controlled substance and unlawful possession of a controlled drug with intent to distribute. Her case will be heard later this year.

Instances of people accidentally bringing the police to their door and paying a high price for it have triggered some unusual cases. Ranking high in the league of such odd convictions is the case of Brian McGacken in Farmingdale, New Jersey. A neighbour who heard a woman screaming loudly inside McGacken’s house called the police. Officers arrived and McGacken opened the front door dressed only in a bathrobe. Asked about the loud screaming he said it was his girlfriend expressing rapture during “loud sex”. The officers asked to see the girlfriend and she came downstairs wearing only a towel and confirmed that she had indeed been enjoying the company of Mr McGracken.

Then, when McGracken went upstairs to get his ID as requested, one of the officers followed him up and “smelled the odour of raw marijuana”. They found 15 marijuana plants, several bagged quantities of the drug, and distribution paraphernalia. The case, which went all the way to the appeal court, turned on whether the officers were allowed to enter the house under an “emergency aid” exception to the general rule which requires a search warrant. The state argued the officers acted lawfully when, responding to the 911 call about the loud scream, they entered the house to check there was no one else apart from the towelled girlfriend who might have been in distress. The appeal court upheld McGracken’s conviction. The loud sex led to a long sentence: McGracken was given ten years.

Gary Slapper is Professor of Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7074550.ece

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The whiff of justice

Cleopatra’s sails were so exquisitely perfumed that “the winds were lovesick with them”. Exquisite perfumery, though, isn’t necessarily a good thing in law. Following a recent legal action, public office workers in Detroit will have to avoid the use of fragrances. Michigan winds will have to love the natural odour of the workforce.

After the case, in which a woman upset by a colleague’s scent sued her employer and was given a large payout, public office workers have been warned not to wear “scented products including …colognes, after shave lotions, perfumes, deodorants, [and] body/face lotions”. They will also be prevented from using scented candles or solid air fresheners. Perhaps, after a month, another Detroit office employee will be able to sue for having to work in an office with the ambient aroma of a nineteenth-century jail.

Susan McBride, a city planner, sued her employer under the Americans with Disabilities Act after suffering from breathing difficulties caused by a co-worker’s perfume. The employer defended the action on the basis that there was no relevant medical diagnosis and that McBride was not disabled.

In the action, Ms McBride presented a note from her allergist stating that she “has a cough and vasomotor [sic] rhinitis primarily triggerred [sic] by irritants” so that “exposure to these smells should be eliminated”. She argued that she is disabled because she is limited in her everyday activities including (a) avoiding the detergent aisle in grocery stores, (b) speaking, and (c) sitting next to people wearing perfume. In an initial hearing, the US District Court in the Eastern District of Michigan was cautious about some of that reasoning and noted that Ms McBride had spoken for what turned out to be 139 pages of evidence “without incident”.

Despite several reservations, the court concluded that Ms McBride had enough of a breathing disability case for the action to proceed to a trial. It indicated that a compromise might be to outlaw only “strong or offensive scents” in the workplace. How the workplace perfume police would do their job was not specified by the court. In the end, Ms McBride won a $100,000 settlement.

Judicial attitudes to the fragrance of their own workplaces have varied. In the 19th century judges used to urinate in a porcelain vase in court. One lawyer’s account describes how, when Lord Chief Justice Ellenborough went for a comfort break in the corner of the courtroom, the court would always hear “the large seals dangling from his watch-chain rattle against the vase”. The scent of justice wasn’t blossom in a bowl. Some modern judges have taken an equally controversial stance on courtroom bouquet. In the 1960s, a female barrister, who went on to become a distinguished member of the judiciary, was interrupted by a judge whom she was addressing. Narrowing his eyes, and flaring his nostrils, he asked her “are you wearing perfume?” When she replied that she was, he instantly sent her out of court to wash off the fragrance. He took the view that, unlike his 17th century horsehair wig, her perfume wouldn’t help achieve legal justice.

Gary Slapper is Professor of Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7065919.ece

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Walking the dog

There are now over 3,000 different motoring offences that a motorist can commit under English law. Someone in that rule-making department needs to get out more. One of the rules is Regulation 104 of the Road Vehicles (Construction and Use) Regulations 1986. It makes it an offence for anyone to drive in circumstances that mean they “cannot have proper control of the vehicle.” Paul Railton and his pet dog have just given a new dimension to that rule. Railton was recently convicted of driving a vehicle while “walking his dog” by holding on to its leash through the car window as it padded briskly along the road.

When the police caught Railton he was driving in a 4×4 Nissan along a road in County Durham, approaching a blind summit, with his pet lurcher on the end of lead that went through the driver’s open window. After the case, at Consett magistrates’ court, he said “a lot of people exercise their dog like that”. If that is the attitude of dog owners, perhaps the dogs taken on ‘car walks’ should get equally lazy and opt to be pulled along on skate boards. Railton was convicted, fined £66, ordered to pay £43 costs, and banned from driving for six months as he already had nine penalty points on his licence.

The offence of driving while unable to have proper control of the vehicle has attracted some other unusual prosecutions. In 2005, Sarah McCaffery, a nursery nurse from Northumberland, was convicted of the offence, and fined £60 after she drove slowly round a bend with both hands on the wheel but with an apple in one hand. During ten court hearings held over 13 months, prosecutors used photographic evidence from a spotter plane, film from a police helicopter and video from a patrol car. It cost over £10,000 to secure the apple conviction.

The judicial duty to dispense justice punctually is an important one but there are limits. In 1996, a judge was given a written caution for not being in proper control of his vehicle while he was driving with urgency to hear a case at Newcastle Crown Court. A police officer had pulled him over when he saw the judge driving while using an electric razor to shave. More reckless, however, was the conduct of Lady Teresa Manners, daughter of the Duke of Rutland. In 1983 she was convicted of driving while not being in proper control of her car after she was caught racing down the fast lane of the M6 while having only one hand on the wheel because she was energetically and amorously involved in a “passionate embrace” with a man in her passenger seat.

Gary Slapper is Professor of Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7059849.ece

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In the wrong place…at the wrong time

When Tracy Kelsey bombed down the A1 in his car very drunk one evening recently, he startled many drivers. He then chose one vehicle in particular to victimise. He “undertook” it by speeding past it on the inside lane, then, when that vehicle hooted him for not having his lights on, he stuck up two fingers at the driver, swerved in front of him and braked sharply to cause a heart-jolting shock.

Other drivers on the road probably thought “where are the police when you need them?” But help was nearer than they realised. The driver whom Kelsey had cut up and told to F-off was the Chief Constable of Durham.

In a prosecution arising from this incident, Consett magistrates’ court was told that Kelsey was four times over the alcohol limit when he drove at 70mph on the road from Darlington. Chief Constable Jon Stoddart said: “I noticed a car coming up behind me very fast without any lights”. He said that when the driver passed him, “I attracted his attention by sounding my horn and he stuck two fingers up at me”. The Chief Constable said that after Kelsey cut in front of him and braked suddenly, “I put on my blues and twos [flashing lights and two-tone siren] and basically pursued him for a small while and pulled him over.”

Just when things looked like they couldn’t get worse for Kelsey he was asked to get into the Chief Constable’s car to await the traffic police. He slumped down on the seat and crushed the Chief’s expensive sunglasses – a special present from his wife.

Kelsey was convicted for drink driving, banned from driving for five years, and given a twelve-week suspended jail sentence.

The precise time and place of some crimes have produced extravagant failures for other offenders. In 2004, a shoplifter landed himself in trouble after he stole some food and drink from a motorway service station in Germany. Unknown to the thief, standing outside taking a break on their journey from southern Germany to Hamburg for a major assignment was a 100-man police unit.

Looking in through the glass wall of the building the policemen saw the 20-year-old man burst past the cashier, so when he ran out of the building holding some sandwiches and bottles he found himself encircled by a legion of armed officers three-deep.

The award, though, for best “wrong time, wrong place” crime goes to Mr J Egan from London. In 1972 he stole a barge on the River Thames. He was caught very quickly, though, because there was a dock strike on that day and the barge on which he was gleefully steaming away was the only one moving.

Gary Slapper is Professor of Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7056429.ece

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The wrong pants

In 1689, the Bill of Rights declared that “cruel and unusual punishments” should not be inflicted on citizens. That, though, was at a time when possible punishments included being boiled to death and mutilated with iron pliers. Standards change over time. Today, an Austrian count who spent seven days in an English prison is alleging that his human rights were violated when he was given an uncomfortable pair of underpants.

Alfons Mensdorff-Pouilly lives in a palace in Austria and owns other properties including a castle in Scotland and a home in Sloane Square, London. This is a man who is not accustomed to compromising on the quality or comfort of his underpants.

His period of imprisonment came about as part of a Serious Fraud Office (SFO) investigation into an arms deal arranged by BAE Systems, the UK weapons manufacturer. The SFO investigation concerned allegations that Mensdorff-Pouilly, a BAE agent, made illegal payments of about £10.5 million to officials in order to win contracts for BAE to deliver fighter jets to Hungary, Austria, and the Czech Republic. He was charged with corruption offences for bribing state officials. Eventually, BAE Systems admitted to criminal charges of corruption and agreed to pay £287m to the authorities.

After he was released, Mensdorff-Pouilly said that “in the UK human rights are not exactly respected like they are in Austria.” In recounting the alleged human rights travesty, the count said “I wasn’t given underwear that was my size, despite asking for it several times”.

Does the count have a valid complaint? Could a human rights case of ‘The Wrong Pants’ succeed? On December 10, 1948, the General Assembly of the United Nations (UN) adopted the Universal Declaration of Human Rights. Article 5 says “No one shall be subjected to torture or to cruel inhuman or de-grading treatment or punishment.”

On the minds of the drafters, however, was the suffering of people in the Holocaust and the Second World War. It seems unlikely that the UN would have been diverted for hours of debate if a delegate then had asked “Yes, but legally does article 5 guarantee a suspect’s right to tailor-measured underpants?”

A case of uncomfortable underpants, though, did once change the law. In 1931, Richard Grant, a doctor in Adelaide, got an acute form of dermatitis from a pair of Golden Fleece woollen underpants. These were, in fact, a shockingly bad pair of pants. He was incapacitated for 17 weeks and had to go to New Zealand to recuperate. The dermatitis was caused by a chemical irritant – free sulphites – that manufacturers had failed to remove during production. Dr Grant’s sweat combined with the free sulphites to form, successively, sulphur dioxide, then sulphurous acid and then sulphuric acid. He was allowed to win compensation for the latent defect in the pants. He settled, though, for that compensation and didn’t take his case to the League of Nations as an alleged affront to human dignity.

Gary Slapper is Professor of Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7045685.ece

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This is the police

In a recent incident in Detroit, a police officer in a car cruised slowly by a prostitute at the roadside, flashed his police badge and shouted “get off the street”. But things were not as they seemed. In a drama soon to be explained to a criminal court in Wayne County, the judge will hear how the police officer was really a criminal and the prostitute was really a police officer.

In Southwest Detroit, following complaints about prostitutes on the street, the local police department’s boldly titled Morality Unit went out on a sting operation. A female officer dressed as a sex worker was on the street about 5pm and was talking to a potential client – or potential convict as he was in her eyes. Then William Quirindango drove up, identified himself as a police officer and challenged the prostitute. Hearing that, her prospective client ran away very fast. “Officer” Quirindango continued to hassle the prostitute repeatedly barking at her the news that he was a police officer. The prostitute then revealed that she was in fact a police detective on an undercover operation, at which point Quirindango evidently remembered some other urgent cop business he had to attend to and sped off.

Quirindango was not far into his next phantom mission, though, when he was caught by real officers. He denied he had done anything wrong but the police found in his car a Detroit Police Department (DPD) badge, items of police uniform including hats with PDP logos, and a loaded .40-calibre Glock handgun. He was taken into custody and will stand trial for the offences of impersonating a police officer and unlawful possession of a police badge and uniform.

Mistaken identity in a legal context has caused problems in other countries. In 2008 in Scotland, 30 police officers raided The Arches nightclub in Glasgow. They discovered a “mass orgy”. Inside the club, all 30 of the officers stormed over to an area behind a partition where they found many men engaged as a group in gay sex. The officers attempted to make arrests but when the orgy participants saw the men in police uniforms waving truncheons and handcuffs, they assumed it was all part of the orgy and enthusiastically tried to incorporate the officers into the recreational mêlée. It took a while for the officers effectively to communicate their true purpose.

The legal theatre of the absurd has, though, a precedent of even more prodigious confusion. On the office wall of the late broadcaster and oral historian Studs Terkel was an enlarged and framed clipping taken from a Bangkok newspaper report from the early 1970s. It recorded a battle between police and a gang of bandits in southern Thailand in which a man was killed. In the news report a police spokesman is quoted as saying that the deadly battle began “when the bandit gang, disguised as policeman, challenged a group of policemen, disguised as bandits.”

Gary Slapper is Professor of Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7033678.ece

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Paying attention in law school

Law school is a tough challenge even for the bright students who gain admission. In America, a good student will complete over 4,000 hours of lectures, classes and scholarship. Law books are long and law libraries are large. Law school probably isn’t the best choice for anyone unable to pay attention to something for longer than a few minutes at a time. Matthew Scott Jones, however, is inviting a different view. He is suing the Law School Admissions Council (LSAC) because it won’t grant him special conditions for his attention deficit hyperactivity disorder (ADHD).

Last September, Mr Jones applied to take the Law School Admission Test (LSAT) which all law schools approved by the American Bar Association require. The examination includes five 35-minute multiple-choice tests and a 35-minute essay. It is designed to test candidates’ abilities in understanding complex texts, the organisation and management of information, the ability to draw reasonable inferences, critical thinking, and the analysis and evaluation of other people’s reasoning. Mr Jones asked for double the time to take the tests because of his attention deficit condition and his request was declined.

Mr Jones is keen to become a lawyer but whether his lawsuit is a good tactic is open to question. He alleges in his claim that his clinically diagnosed ADHD impairs his reading and his ability to concentrate so much that his competence in those key legal fields is “below that expected in comparison to most people”. Mr Jones has also asked the court to rule that his LSAT results (which are sent to the law schools to which he has applied) must not be flagged as “not taken under standard conditions”.

In the lawsuit, filed in the US District Court for the Western District of Texas, Mr Jones claims that his rights have been violated as LSAC “has illegally refused and is illegally refusing” to accommodate his disability by giving him double the normal time to sit his exams. The court will soon have to decide whether being unable to pay sustained attention is a valid reason for being awarded extra time in law exams, and, if so, whether people relying on the exam results – like law school admissions tutors – are entitled to know if someone has passed an exam in that way. If Mr Jones wins, one question for future courts will be whether the same thing applies to people sitting Air Traffic Control or medical exams.

The US system of regulating the education and practice of lawyers is rigorous. American attorneys – of whom there were 1,180,386 at the last count – are strictly trained and monitored. The American system, in fact, got off to a very strict and no-nonsense start. In 1639, Thomas Lechford, the first lawyer to practise in New England, was disbarred for malpractice. He was found guilty of “embracery” (pleading with the jury out of court). Still, as Americans might delicately observe, Lechford had been trained in England as a solicitor.

Gary Slapper is Professor of Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7023126.ece

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The artistic defence

After Kevin Harman took a scaffolding pole and smashed it through the window of an art gallery in Edinburgh he was charged by police with a criminal offence. People quietly moving about in the gallery had been understandably shocked and distressed when the pole came crashing through the glass. Harman’s unusual answer to the charge was that his destructive disorder was not a crime but a form of art.

At Edinburgh Sheriff Court, the prosecutor explained that Harman had some months earlier decided to embark on “a living art project” which he initially entitled “Brick”. With self-professed artistic flair, and after careful study, Harman had written to the Collective Gallery to tell them he had selected them for his project and that at some unspecified time in the future he would be arriving there with a brick to throw through their window. He told them, helpfully, that he would also be filming the event for later audiences to enjoy, and that he would bring a glazier to replace the window after his bout of art.

That plan, however, was never executed because when the glazier found out exactly what was supposed to happen he refused to take part. Harman, who is a postgraduate art student, then came up with his Plan B which involved the cunning artistic technique of replacing his brick with a metal scaffolding pole.

It was then that Harman strode confidently to the gallery to create “Pole” and duly hurled one through the window. It might have looked like a mindless act of vandalism but for the culprit it was an act of creativity. Harman said it was “the most important work of my life”.

There are precedents in which defendants pleaded that their alleged crime was, in fact, art. Those defendants, however, usually gave ample justification in their defence. In 1960, for example, Penguin Books Ltd was prosecuted for obscenity after it published the DH Lawrence novel Lady Chatterley’s Lover. The prosecution claimed the book was criminal filth. The publisher relied on a defence that excuses something if it is in the interests of art or literature. At the trial, a unique range of distinguished scholars, professors of literature, and writers queued up to praise the book including the novelist EM Forster and the poet Cecil Day-Lewis. Penguin Books was acquitted and the novel sold three million copies in a year.

Harman’s work, by contrast, has been eulogised but rather less convincingly. Richard Demarco, an art promoter, said of Harman “The word destruction does not apply to him. His whole ethos is about making things which are positive negative”. The judge in the criminal law court took a more conventional view of language. He found that because Harman had deliberately destroyed a window the word “destruction” was applicable. The judge’s verdict was not “positive negative” but just plain negative. He found Harman guilty of conducting himself in a disorderly manner and breaching the peace and fined him £200.

Gary Slapper is Professor of Law at The Open University

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7018956.ece

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Baby in court

At the centre of a recent custody battle in Sarasota County Circuit Court, Florida sat the exceptionally cute Eli. He is only 11-months old, still in nappies and does not understand the legal fight over him between James Casey and Virginia Valbuena. Of course, it’s always difficult for someone so young to understand litigation but for Eli it is especially challenging because he is a chimpanzee.

Eli has lived with Valbuena in Florida for most of his life. According to her, Eli is from a wildlife park in California. She says she collected him from his owners when they brought him over to a chimpanzee habitat in Missouri – a mutually convenient meeting place. Valbuena is training Eli for a Hollywood company.

However, Casey, who brought this legal action, claims that Eli was born on a chimpanzee habitat he used to run with his wife in Missouri – the same habitat from which Valbuena picked up her chimp.

In divorce proceedings, Casey’s wife had been ordered not to sell any of their animals but, Casey says, she violated that court order by selling Eli, who is worth $65,000, to Valbuena.

Chimpanzees do not have birth certificates and proving their parentage is difficult so Casey brought this action to obtain an order for Eli to be given a DNA test. Casey’s lawyer argued that “If it’s good for the state of Florida to execute people based on DNA evidence, I think its good enough to determine the lineage of this animal”.

An initial dispute arose about whether it would be okay for a chimpanzee to attend court. Valbuena promised that Eli would be well-behaved – apart from sleeping all he likes to do is kiss and cuddle. Valbuena said that lawyers would not be able to tell the difference between Eli and a baby “unless they looked closely”. In the event, Eli had to wait outside the court while people inside went ape.

The court heard that here were several reasons why Casey held a bona fide belief that Eli was his: the age and appearance of the chimp, and a previous business relationship between his ex-wife and Valbuena. Casey’s lawyer said that “the only way to be 100 per cent certain of the provenance of the animal is for the court to order a DNA test” and for the results to be compared with those of other chimpanzees in Missouri. That proposal was opposed by Valbuena’s lawyer on the basis that, unlike similar tests run by the Department of Revenue in child paternity cases, the potential for fraud in a chimp case would be “off the charts”.

Judge Roberts dismissed the case but said he was open to another application from Casey in future if more evidence was provided that Eli was his property. This case is not the first to involve a chimpanzee. One has even been a client. In a California case in 1999 a court agreed that a San Francisco lawyer could represent a chimpanzee called Moe – he is still much-loved in San Francisco for his fun, energy and cheeky manoeuvres, and so is the chimp.

Gary Slapper is Professor of Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7008088.ece

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The paternity matrix

In the film The Matrix, Keanu Reeves plays a character who moves in and out of the real world. He might have thought he was having a similar experience while defending a recent legal action in Canada. Reeves was sued by Karen Sala, a woman he said he had never met but who claimed that he had disguised himself as her husband and, over 25 years, fathered her four children.

Representing herself in a paternity lawsuit brought in Ontario’s Superior Court of Justice, Sala sought C$3 million a month in spousal support payments for her four adult children and C$150,000 a month in child support backdated to 1988. She claimed that she had known Reeves since she was a child.

She said “I do know for a fact that he is the biological father”. Her children were conceived, she argued, after Reeves used sophisticated disguises in order to make her think she was making love to her husband.

The reason for the delay in bringing the paternity suit, Sala contended, was that although she had had a sexual relationship with Reeves during and after her marriage, she had not realised until recently that Reeves had sometimes impersonated her husband. Additionally, she had not realised her lover was ‘Reeves the film star’ because she knew him as ‘Marty Spencer’.

It is not unprecedented for someone in a court case to claim they had sex with one person thinking it was someone else. In a 1971 case from Colchester, England a woman had invited into her bed a young man who appeared on her outside windowsill one night. Seeing him crouched there in silhouette in an aroused state, she thought it was her boyfriend but only discovered during sex that it was someone else.

The young man was later acquitted of criminal conduct. That, though, was a ten minute relationship. It is more unusual to make a mistake about a sexual partner’s identity for 25 years.

In her affidavit, Sala said that Reeves helped her to move house, told her he would take her to the Academy Awards and said that he would marry her. She testified that she still sees him in her local Macdonald’s and in the No Frills grocery store.

Conversely, Reeves argued that on planet earth he had never met Karen Sala. He agreed to DNA testing but when the results came back proving that Sala’s children were not his, Sala told the court that the results were fake and that Reeves had used his powers of hypnosis to get someone to falsify the results. As Neo in The Matrix, Reeves spoke of “a world where anything is possible”. Was he there again?

Reeves probably perceived the final moments of the case in slow-motion as Judge Fred Graham banged a gavel and brought everyone back to reality. The judge ruled that Sala’s evidence was so incredible that “it is not capable of acceptance by any reasonable trier of fact”. He dismissed the case and ordered Sala to pay $15,000 towards Reeves’ costs.

Gary Slapper’s new book, Weird Cases, is published by Wildy, Simmonds & Hill

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article7001485.ece

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Can fish be a tool?

Can a fish be a tool? That’s the legal question at the centre of a case in Arizona in which a pedicurist who used live fish to perform a ‘foot smoothing’ service is suing the regulator that has shut down her business. Her legal representative has said it is a case that “affects the economic liberty of every American”.

Until recently, customers of LaVie Nails & Spa were able to pay $30 to spend 20 minutes with their feet in a tank of warm water filled with 100 Garra Rufa carp. The toothless two-inch fish like to suck off dry skin and, according to the business, leave customers with smooth, soft feet.

The Arizona State Board of Cosmetology (cosmetology is the practice of beautifying face, hair and skin) took the view that fish therapy violates the law concerning tool sanitation. One regulation requires that “any tool of piece of equipment” used in a skin exfoliation must be “stored in a dry storage” (difficult for fish) and disinfected after use (also difficult). The Board ruled that the owner, Cindy Vong, must discontinue the service.

Vong’s suit is a civil rights action which argues that the regulator has unlawfully infringed her economic liberty because its worries about the dangers of fish foot-smoothing are unfounded. She says that the Board’s conduct is “arbitrary, oppressive, discriminatory, and unlawful”. The skin-sucking fish have swum into a legal whirlpool because the constitution provides that “no person shall be deprived of … property [including money] without due process of law”; Vong argues that there is no law in Arizona which bans fish therapy.

It is an open legal question whether a fish is a tool. The courts can go either way on this sort of legal interpretation issue. In 1956, in a case about travel expenses, Mr Justice Roxburgh decided that the word “horse” in a piece of tax legislation should be interpreted so as to include “aeroplane”.

American law is an ocean of precedents and under the category of ‘fish pedicures and their legal status’ there is indeed a relevant decision. In the state of Washington, an administrative judge ruled that that state’s Board of Licensing was entitled to close a fish pedicure service on the grounds of public danger. Although popular in China, Japan and Turkey, fish pedicures were ruled to be a health hazard in Washington state as fish could spread disease from client to client. The judge in that case ruled that the classification of a fish as a “tool” was proper because “it is the fish who are delivering the pedicure service by … nibbling on a client’s foot”. She also ruled that fish can carry parasites harmful to humans and that as they couldn’t adequately be sterilised, the service must stop. If that decision about how to interpret the legislation is followed in Arizona, Ms Vong’s business will be sleeping with the fishes.

Gary Slapper’s new book, Weird Cases, is published by Wildy, Simmonds & Hill

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6989517.ece

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The unbelievably strong orgasm

When someone claiming to have been assaulted sues for damages in a civil court they usually complain about cuts, bruises or perhaps a broken limb. But in a recent case at Worcester County Court, England, the main injury complained of was an intense “leg buckling orgasm”.

The claimant – Mrs Bibi Giles – claimed that her gynaecologist had unprofessionally produced that result in her twice in less than two minutes, during an intimate examination at his clinic. She claimed damages of up to £50,000 in the first case in legal history in which an orgasm has been nominated as a kind of injury.

Giles alleged that following an operation for a prolapse (weak pelvic floor muscles) she attended a hospital appointment. During the examination, at which a nurse was present, Mrs Giles alleged that the doctor started stroking her in an intimate way and that she had an involuntary and sustained ecstatic reaction. She also claimed that on other occasions the doctor had made sexual suggestions towards her.

On examination, several features of the assault and harassment claim were problematic. After the successful pelvic surgery, Mrs Giles sent the doctor, whose first name is Angus, a text message saying that “the new arrival needs christening with the Angus beef sausage”.

Giles later claimed that a friend had used her phone to send that message to encourage the doctor to consult her about a “fibroid problem”. It also wasn’t clear why, according to Giles, she phoned her husband after the alleged assault to tell him what had happened but they decided she should keep with the same gynaecologist because, in the words of Mr Giles, it was “better with the devil we knew”. In another inconsistency, the 90-second orgasm was supposed to have been experienced when the chaperone nurse was about two foot from the recumbent patient but the nurse did not notice anything odd.

The doctor, who has an impeccable clinical record, said that he had done nothing wrong. He explained that it was in fact Mrs Giles who had sought sex from him – and that he had declined and been careful to report her improper conduct. The court also heard that several days before the hospital visit in question, Giles had telephoned the hospital to request that no nurse be present during her examination.

A distinguished Canadian lawyer was once asked by a judge what he wanted for his client. He replied “Justice, with costs”. The gynaecologist here won both. Giles’ bizarre case collapsed suddenly after a week of trial when a respected family doctor wrote to say that when she had been his patient, Giles had persistently harassed him for sex.

In the light of that new evidence, and the judge’s recognition that “she has got form”, Mrs Giles withdrew her claim and agreed to pay the gynaecologist £30,000 to cover his legal costs.

Gary Slapper’s new book, Weird Cases, is published by Wildy, Simmonds & Hill

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6979533.ece

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Alone on a mountain

In Italy, people caught in possession of marijuana have raised many diverse defences. “I was due to spend a long time alone up a mountain with a flock of sheep” broke new legal ground, however, when it was raised recently by a shepherd as a defence in the Supreme Court of Cassation. It succeeded and the man was acquitted. So now the only crook on the mountain is the one in the shepherd’s hand.

The 45-year-old man, identified in the law report as Giorogi D, had been caught in possession of 38 grams of marijuana during a random car check in Trentino-Alto Adige in the far north of the country. Some of the drug was wrapped and some of it was in jars and mixed with tobacco.

The shepherd explained to police that he was about to spend a very long time alone with his sheep in the countryside and up a mountain as the flock was due to be migrated. The drug was to ease his hardship. Nonetheless, he was prosecuted. The police took the view that even though his story seemed true, the amount of marijuana he had was over the guideline for mere personal use.

The trial court acquitted him and the prosecutor appealed. The appeal court upheld the acquittal. It ruled that when judging whether an amount of marijuana such as that with which the shepherd was caught was for mere personal use, and therefore excusable, a court should examine how it was stored and all the circumstances. The trial court had been justified in acquitting the shepherd.

This may be the first time sheep have helped to exonerate a man from a criminal charge. In several cases, though, sheep have been the cause of men’s legal downfall. These are generally incidents in which the culprit — intoning the sentiment ‘ewe know I’m no good’ — gets into a closer relationship with the animal than the law permits. In 2007, a man was arrested in southeast London after someone was spotted in a decidedly non-agricultural relationship with a sheep and his DNA was identified on a pair of abandoned jogging bottoms found at the scene.

No one wants a moment of intimate personal companionship to be witnessed but some interruptions are worse than others. In 2002, a 23-year-old man was half-naked and engaged in such a liaison with a goat in a field called Paradise Allotments in the northeast of England. To his horror, however, and perhaps to the goat’s relief, a packed Hull-to-Bridlington train made a sudden unscheduled signal stop right beside them. Many of the aghast passengers made mobile calls to the police and the man was later arrested. At first he denied the encounter but was convicted after goat hairs were discovered in his underpants.

At Hull Crown Court, his lawyer pleaded for a non-custodial sentence, saying his client would be prepared to go on a “victim awareness” course. A suitable course was not, though, offered by either the criminal justice system or the farmyard community so the man was sent from Paradise Allotments to Her Majesty’s allotments for six months.

Professor Gary Slapper is Director of the Centre for Law at The Open University

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article5986492.ece

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Parrot custody

Two Florida women go to court in a bitter feud over ownership of an escaped parrot

“Oh my God, that’s him!” So Angela Colicheski exclaimed as the young subject of her custody battle with Sarita Lytell was brought into court. Both women knew that only one of them would be leaving the court in Florida with the youngster each had, at different times, nurtured and doted on. The judge looked on gravely as he realised that in deciding which desperate woman should win custody, he would have to exercise the wisdom of Solomon.

The custody clash was similar to many other previous cases except for the fact that it was about a 13-year old African Grey parrot.

For ten years, Colicheski had loved and cared for the parrot she called Tequila. Then, three years ago, he flew away over her garden fence. Colicheski ran frantically all over the district but could not find him. She was distraught and heart-broken. Three long years passed. Then one day Colicheski was sitting in a local Dunkin Donuts chatting to Lytell, whom she had just met, when they started to talk about parrots. Lytell said she had one called Lucky that she had found three years earlier. It quickly became clear that he was the one Colicheski had lost. Lytell refused to hand him over, having formed a bonded relationship with the bird.

The judge heard a lawyer for Lytell argue that as she had cared for the bird for three years it had become hers. Colicheski’s lawyer, however, argued that the parrot was a chattel (a piece of legal property) and must be returned. The judge agreed, saying that the parrot was treated, under state law, as personal property. “If the plaintiff had lost her automobile somehow along the way,” he asked rhetorically, “would it be any less her property when she found it?” He ruled that Tequila was the property of Colicheski as she was his original owner and carer for ten years.

Tequila did not give sworn testimony but he did give squawk testimony. As soon as he was brought into court and saw his previous owner he emitted what witnesses said was a loud call of recognition.

This is not the first such dispute. In 2006 in Argentina, in litigation between Jorge Machado and Rio Vega, the court ruled that a parrot called Pepo, which each man claimed was his, should be imprisoned until it uttered the name of its owner. Five days later it squawked “Jorge” and sang the anthem of his favourite football team, San Lorenzo. The evidence of another parrot caused problems in Leeds in 2006. Chris Taylor discovered his partner Suzy was having an affair when his parrot, kept saying, in a perfect mimic of her voice, “I love you Gary”.

Professor Gary Slapper is Director of the Centre for Law at The Open University

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Full article: http://business.timesonline.co.uk/tol/business/law/article6114038.ece

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Noisy neighbour

How noisy can sex get before it is illegally loud? A jury in a forthcoming case in Newcastle Crown Court will soon have to decide this challenging question.

In 2007, neighbours made many complaints against Caroline Cartwright about her ecstatic screaming during sex with her husband. Council environmental officers were dispatched to set up recording equipment in a neighbouring property to measure the level of shrieking, moaning and slapping that could be heard through the walls and outside on the street. The recorded noise levels were unacceptably high, so the council imposed a noise abatement order against her.

But the loud sex continued, so Cartwright was prosecuted. Last month, at Houghton le Spring magistrates’ court in Sunderland, she was convicted of breaching the abatement order. Giving testimony in court, a neighbour stated that not only was the sound of the sex excessively loud, penetrating a wall that she had had soundproofed, but it was maintained with some stamina. The witness said: “When I first moved in it would start around midnight and last until 3am-4am”.

The lawyer for Cartwright said: “She believes the way she performs is natural and normal”. The court disagreed. The chair of the bench told the defendant: “You could have minimised your vocalisation while having sex”. It convicted Cartwright and sentenced her to a £200 fine and a four-year Anti Social Behaviour Order (ASBO) banning her from “making excessive noise” anywhere in England.

But she still failed to quieten down. She said, “Effectively, they are trying to ban me from having sex.” Cartwright asserted that she could not control the noises she made during sex and noted, “We are just expressing how we feel. If they want to lock me up for it they can.”

The very next day she was arrested again for making too much noise, and further arrests followed twice in the following week. Each arrest arose from highly audible and resonant early morning moaning and groaning and the sound of a bed banging against a wall. After the third arrest she was charged with breaching her ASBO and will now stand trial before a judge and jury in Newcastle. She was refused bail and was remanded in custody.

The courts have rarely been asked to rule in a case where the sound of female sexual rapture is a legal issue, but it has happened. In October 2007, at the magistrates’ court in Ipswich, Queensland, Australia, the humdrum proceedings were interrupted at one point by the sound of a gasping female voice in an advanced state of excitement.

The voice was the hi-fi ringtone on the phone of a man in the public gallery. As the sounds of ecstasy became progressively louder the court proceedings froze. The man with the extraordinary ringtone fumbled desperately to turn off his phone. He was identified and told he could be held in contempt of court and imprisoned, although the magistrate ultimately exercised mercy. One missed call, one missed cell.

Professor Gary Slapper is Director of the Centre for Law at The Open University

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6250382.ece

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The weirdest legal cases of 2009

The best this year from our weekly Weird Cases column

1. In Florida, Judge Patricia Kinsey heard the case of a man who sued a men’s briefs manufacturer claiming he was injured on a beach holiday by their badly designed underwear. He claimed the briefs “gaped open and acted like a sandbelt on my privates”. The judge found herself required to analyse the relationship between male anatomy and underwear, but she wanted some independent evidence. A male criminal lawyer who was passing time in the gallery agreed to testify and was thanked for his “surprisingly candid testimony” despite the intimate questions.

2. Homer has been referred to in English cases many times but such allusions previously only referred to the ancient Greek poet. However, this year, for the first time, a British lawyer cited Homer Simpson in court. John Walker was addressing the bench about a client who had pleaded guilty to a firearms offence. He had been caught with a million-volt Taser gun which he’d fired at his own chest “to test it”. To mitigate the offence, Walker told the court: “There have been scenes in The Simpsons when Homer has given himself electric shocks and leapt in the air screaming with his tongue hanging out. This was a bit like that.”

3. In a criminal case in Ottawa, Laura Emerson stood accused by witnesses of using the courthouse where she worked as the base for a prostitution business. Emerson was accused of luring young women to become prostitutes and even taking calls from clients during the working day. Cynical opponents of the legal system observed that whether someone approaches the courthouse as a defendant or as a punter, they will end up being treated the same way.

4. The law is not only concerned with things of high intrinsic value. In 2009, Daniel Bennett began litigation against the University of Leeds for it having disposed of 5s 7lbs of lizard excrement he had meticulously collected from remote parts of the Philippines as part of his doctoral research. For seven years, Bennett had painstakingly investigated the diet, life and behaviour of a very rare butaan lizard. His primary evidence was in the form of the faeces that he collected from the jungle. One day, Bennett arrived at back work after a break to find his collection gone. “There was,” he testified in understandable outrage, “no sign of my 35kg bag of lizard s**t”. It had been incinerated. After 16 months the university offered him just £500 compensation. It was then that the writ hit the fan.

5. In Boyton Beach, Florida, Jean Fortune was prosecuted after he called 911 because his local Burger King had run out of lemonade. Fortune arrived at the drive-thru restaurant hungry after work and argued with the cashier when she said the restaurant had no lemonade. He dialled 911, then, while the police raced to the scene, expressed his fury to the emergency service operator. The police affidavit records Fortune’s emergency as “unhappy with his order”.

6. Mothers around the world are usually keen to speak regularly with their sons after they leave home. Hence the celebrated Jewish exchange when a son phones his mother after a long gap:

SON: Mum, how are you?
MOTHER: Very weak, I haven’t eaten in 28 days.
SON: That’s awful. Why haven’t you eaten in 28 days?
MOTHER: Because I didn’t want my mouth to be full of food if you should call.

In Austria, however, a mother who made a fusillade of daily phone calls to her son over a period of two years was convicted of stalking him and fined €360.

7. At Newcastle Crown Court, a woman’s rapturous screaming during sex was held to be unlawful. Council environmental officers were dispatched to set up recording equipment in a property neighbouring that of Caroline Cartwright to measure the level of shrieking and moaning that could be heard through the walls and outside on the street. The judge said “At the point of climax there may be some involuntary noise” but three hours of shrieking was unacceptable.

8. Three nuns caught driving at 112 mph explained to the Italian police they were racing to the Pope as he was injured. It was a Blues Brother’s-style “We’re on a mission from God” defence. When police caught the car, Sister Tavoletta explained that she had just learnt on the radio that Pope Benedict XVI had slipped and injured himself in his bathroom. They were proceeding with God’s speed to the pontiff’s holiday chalet to help him. The law, though, would not absolve their offence. Sister Tavoletta was fined €375.

9. In a case from Ohio, Judge Stephen Belden decided that a defendant in a robbery case was offending the dignity of the court by talking too much. The judge, however, chose an unorthodox way to establish decorum: he ordered the defendant’s mouth to be sealed with duct tape — a court exercise you will not find on the judicial training syllabus. The defendant was objecting to the state lawyer who had been appointed to his case. When he persisted with his complaint the judge ordered the bailiff to gag him. Why the court had a ready supply of duct tape to be used on the judge’s order was not explained.

10. When the French tennis star Richard Gasquet tested positive for cocaine, he said he must have absorbed the drug during passionate French kissing with a woman he had met the previous evening. He had befriended a woman called Pamela in a restaurant and they later engaged in many kisses — “and good ones too”, he testified. An International Tennis Federation tribunal found that there had been at least seven passionate kisses of up to 10 seconds each and that cocaine thereby entered his system. The tribunal found that is was natural for Gasquet to have been attracted to Pamela and restricted his penalty to a 10-week ban.

Gary Slapper’s new book, Weird Cases, is published by Wildy, Simmonds & Hill

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6961575.ece

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Don’t laugh at my daughter

A recent legal dispute in Scotland suggests that laughter can be the shortest route to jail

The comic Victor Borge once observed that “laughter is the shortest distance between two people”. A recent case from Scotland, though, suggests that laughter can be the shortest route to jail.

Stuart Hunt has been charged with “laughing in public”. Officers visited his home in Drumnadrochit, near Loch Ness, and charged him with laughing at his neighbour’s daughter, contrary to an anti-social behaviour order (Asbo) imposed on him in 2008.

The legal path to the unlawful laugh was long and punctuated with snarls. Hunt fell into a series of rows with Stuart and Shirley Latham, his neighbours, with whom he shared a private road. The arguments have been raging for six years. Hunt accused the Lathams of speeding past his house in their car. He then took the law into his own hands by installing speed bumps on the road. That resulted in a £50,000 case at Inverness Sheriff Court, which Hunt lost. He later attacked his neighbour, for which he was convicted and fined £200.

Following more rows, Hunt was placed under an Asbo, the conditions of which were nothing if not thorough. Under the court order he was forbidden from staring at people, engaging in slow hand claps at the actions of others, waving objects at people, adopting a menacing stance at anyone or laughing at anyone within the jurisdiction of Highlands council. It is the first time someone has been legally ordered not to laugh.

Hunt stands accused of breaching this Asbo by driving passed the Lathams’ daughter and laughing at her. He says he didn’t laugh but merely “smiled a bit” and shook his head when she made a manual gesture at him. As the court at which Hunt will be appearing is within the jurisdiction of Highlands council, and he is still subject to the Asbo, he must be hoping that if the prosecutor makes any good jokes he will be able to bite his tongue long enough to avoid the laughter charges against him being racked up, live, during the hearing.

The “no laughing” Asbo isn’t the only odd one to have been issued. In 2005, Kim Sutton, a 23-year old woman from Bath, was banned from throwing herself into the River Avon or “going into any open water in England or Wales”. In 2007, in Clackmannanshire, William Rae was forbidden from shouting or swearing at his television. But the prize for most remarkable Asbo goes to one issued in 2003 to a 15-year old boy from Alnwick, Northumberland. The order demanded that he “must not be seen in public without alcohol” and ordered him “to act in a manner likely to cause harassment, alarm and distress to others”. He dutifully obeyed the order with gusto and so was brought back to court at which point the drafting errors were identified.

Gary Slapper’s new book Weird Cases is published in December by Wildy, Simmonds & Hill

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6952871.ece

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Explosive court tactics

An advocate discovers that what you can’t achieve through the power of language you can’t achieve with physical tricks

The principal weapon of advocates is language. Sam Kepfield, however, recently sought to extend his options in a Kansas courtroom when he put a hand grenade on the jury box ledge and pulled out the pin.

Kepfield, a defence attorney, was representing a woman charged with forgery and theft. Her defence was duress. She claimed that her co-defendant had forced her into committing crimes by threatening to kill her pet dog and hurt her daughter unless she cooperated.

In an effort to convey to the jurors what it feels like to face an imminent threat, Kepfield took the view that simple verbal descriptions would not suffice and that something dramatic was required. So he acquired a dud grenade and then, during a speech about fear and the experience of being intimidated, without notice to the judge or the prosecutors, he brandished the grenade, pulled the pin, placed it on the jury ledge and asked the jurors, “Are you afraid now?”

This was certainly a novel approach to capturing the attention of a jury. But “hand grenade” does not appear in the index of most books about how to be a successful advocate. After leaving the grenade on the jury ledge for a moment, Kepfield moved it on to the prosecutors’ table. Judge Richard Rome ordered him to remove the it immediately. Both the judge and the state prosecutor referred the incident to the local sheriff’s office.

The jurors were not impressed with Kepfield’s explosive ploy and took just 15 minutes to convict his client.

Gary Slapper, London Times

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article6944726.ece

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Giving the finger to a court

Defendants have sometimes defiantly given the finger to the court that was about to condemn them but last week Remi Fakorede went further.

Facing conviction in a £1 million state benefits fraud prosecution in London, Fakorede suddenly pulled out a tissue containing three small severed fingers and waved them to the court. Following gasps and an emotional reaction from jurors, the case was halted temporarily.

Fakorede said the fingers were from her baby daughter. She claimed they had fallen off as the result of a Voodoo man’s curse and that she had been forced to commit a tax credit fraud under threat from the same demonic Voodoo man – and a relative known as Auntie Marian. As defences go, that is an unusual one.

Fakorede, 46, ran the scam for five years submitting false state benefit claims on behalf of various imaginary families including 39 false claims for phantom children. Fakorede’s elder daughter was recruited to launder £925,933 garnered from the scheme. The authorities were alerted to the criminal enterprise after Fakorede made claims for non-existent childcare. The suspicions of officers were confirmed after all the relevant regular payments were terminated but none of the named beneficiaries complained.

After the finger incident in court, DNA tests demonstrated that the digits were indeed from Fakorede’s baby daughter. The child had evidently suffered from gangrene after kidney failure. Fakorede, who was shown to have lied consistently to get the £925,933, ran a hairdressing salon and owned two properties in East London. She was also in receipt of a £40,000 annual income from Nigeria.

Sentencing her to five years imprisonment last week at Southwark Crown Court, Judge Jacqueline Beech told Fakorede: “I find you to be a thoroughly dishonest woman. Your conduct in court was a barefaced attempt to manipulate the jury”.

This was not the first time fingers detached from a body have appeared in an English court. In 1631, a condemned defendant in Salisbury expressed his displeasure with the court by throwing a large stone at Chief Justice Richardson. At that moment, though, the judge happened to slouch “in a lazie recklesse manner” and so the missile narrowly missed him, flying over his head. He later wryly observed “if I had been an upright judge, I had been slain”.

The judge’s response was prompt and did not involve sending the defendent on an anger management programme. He ordered the immediate amputation of the defendant’s right hand. It was cut off in court and then fixed to the gibbet where the defendant was hanged.

Professor Gary Slapper is Director of the Centre for Law at The Open University.

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Full article: http://business.timesonline.co.uk/tol/business/law/columnists/article4787585.ece

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