"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

Monday, 29 March 2010

Natural ability scores every time

Letter 14

Ironically, I don't actually like football. But I can't let them get away with illogical arguments ...

From http://www.timesonline.co.uk/tol/comment/letters/article7077859.ece

Sir, Patrick Coffey (letter, Mar 24) objects to Diego Maradona being placed above Pelé in the greatest football player rankings on the ground, among others, that Pelé played in more successful teams and scored more goals. With respect, that is a reflection of the quality of their respective team-mates rather than their individual talents. Without Maradona the Argentine sides of his era would have been a footnote; without Pelé it is unlikely that Brazil would have been anything less than a great side.

Certainly Pelé’s conduct both on and off the pitch has been more commendable; but there is the old saying that nice guys finish last. The likes of Mike Tyson, George Best and Alex Higgins, for example, indulged in a fair bit of questionable conduct over the years, but their sporting greatness has not been downgraded as a result. If anything, Maradona’s astonishing natural ability is highlighted by the fact that his lifestyle was less than conducive to international sport.

Friday, 26 March 2010


A further blog on the Supreme Court has been published here. The blog is reproduced below:

Prior to the Supreme Court being established, a seminar was conducted under Chatham House Rules to discuss how it should work. The notes of the seminar, published here, include the following:

a Law Lord said that in his experience there were two main areas of concern about the House of Lords. One was that the speeches in House of Lords cases were too long, there were too many of them in each case, and they were sometimes difficult to reconcile with each other.

The highly publicised “JFS” case (R (on the application of E) v Office of the Schools Adjudicator (Governing Body of JFS and others, interested parties) (British Humanist Association and another intervening) [2010] 1 All ER 319; [2009] UKSC 15) suggests that not much has changed from the days of the House of Lords. Five separate majority opinions were given. None was nominated as the leading judgment. Readers therefore had to read each one.

In such cases either the judgments are all consistent with each other, in which case five separate opinions are not necessary, or they are not, in which case the court would not have discharged its duty to clarify the law. (In the JFS case itself Lady Hale said as a passing remark that the majority judgments were essentially all the same).

The problem of multiple judgments is not of course confined to the Supreme Court or its predecessor: it is found throughout the common law world, and appears at every judicial tier involving more than one judge.

The reason why multiple judgments is a problem should be obvious. Points four and five of Lon Fuller’s classic eight requirements of the rule of law (as set out in his work The Morality of Law) are as follows:

4. Laws should be written with reasonable clarity to avoid unfair enforcement.

5. Law must avoid contradictions.

Where an appellate court produces multiple opinions of great complexity and minimal reference to each other, both of those requirements are potentially breached.

Lord Bingham, in an important public address in 2006, criticised modern common law judgments for their “length, complexity and sometimes prolixity”. He was not of the view that the solution would be for a single judgment along the lines of those issued by the Privy Council. Instead, he argued:

A single lapidary judgment buttressed by four brief concurrences can give rise to continuing problems of interpretation which would have been at least reduced if the other members had summarised, however briefly, their reasons for agreeing. And a well-constituted committee of five or more, can bring to bear a diversity of professional and jurisdictional experience which is valuable in shaping the law.

But I would add …. [that] whatever the diversity of opinion the judges should recognise a duty, not always observed, to try to ensure that there is a clear majority ratio.

Lord Bingham’s final comment is obviously correct. I do not agree, however, that a single judgment followed by brief concurrences would be more easily interpreted if the concurrences were longer; that would be the case only if the first judgment were unclear of itself. If so, then ideally it ought to be remedied before delivery, or at the least the concurring judgments should be confined to expressing reasons on the points they find unclear in the main judgment. It also depends in part on the nature of the appeal. If a case is concerned with interpreting a statute or standard form contract, for example, then one judgment is the most likely method of a clear, certain interpretation.

It should be emphasised that the first role of an appellate court is to explain to the parties who has won and lost and why. Its second role is to clarify the law. Both those roles are best done by way of a single majority judgment. All other judgments given by judges in the majority should either be short (that is, non-reasoned) concurrences, or state clearly that the judge wishes to add some obiter views. These might be that the statute or case law under review is unsatisfactory, or that something objectionable has occurred in the case which justifies strong condemnation in addition to the disposition of the appeal. All that would be necessary would be for the judgments to begin “I agree with the decision of Justice X for the reasons she gives. I wish to add some observations of my own on …”

Of course there would be no objection to the leading judgment being split between different judges on different issues, as sometimes happens when a case raises disparate issues and different judges wish to answer each point, so long as the majority decision on each point is expressly identifiable.

Dissenting judgments – whether dissenting on all points or not – do not add any confusion since they will be expressly stated not to be in agreement with the majority judgment.

I quite accept that separate opinions can be invaluable to many including Parliament, law reformers and academics. If a point of law has been thoroughly argued by counsel then it is of benefit to hear the views of all of the leading judges on the subject. Yet that benefit could be retained without any of the confusion caused by having multiple judgments by following the procedure recommended above. The Supreme Court has done so on numerous occasions, but not always, which leads one to conclude that they do not have an avowed intention to do so. One hopes they will do so in future.

Wednesday, 24 March 2010

Musical coda: the Joyce Hatto saga

Coda to the previous internal blog:

Not every musical dispute ends in court. This extraordinary event in classical music raises some points about why we appreciate music in the first place. Joyce Hatto was a jobbing concert pianist in the 1960s and 70s. She performed regularly, to distinctly mixed reviews, until one point in 1976 when she collapsed on stage. Thereafter she was neither seen nor heard from in public until decades later, when her producer/arranger husband started to release piano recordings allegedly performed by her. They were of remarkable quality, and the classical music industry – record companies, retailers and critics – were enthralled. A virtuoso was clearly responsible.

It was all the more remarkable for two reasons: first, because Hatto was playing virtually the entire classical repertoire – Rachmananov, Chopin, whoever – which was usually beyond all but the most accomplished pianist; and secondly, because she was in her 70s and in frail health. It was as if a washed up journeyman county cricketer aged about 40 suddenly made a comeback and played to the level of a young Gary Sobers.

In other words, it seemed too good to be true. And so it was proved. Not by one of the learned music critics who had raved about Hatto’s efforts, but by a random Wall Street worker who had uploaded a Hatto CD on his Ipod. Unlike the gullible soi-dissant experts, the computer software could not be fooled, and had identified the actual performer. The story unravelled quickly and Hatto’s husband was found to have used old recordings of talented young performers, which he had manipulated slightly to fool the critics, such as changing the left and right channels, compressing the odd note and lengthening others, and so on.

He had obviously grown lazy over time and hadn’t changed one recording at all, hence the Itunes Gracenote software spotted it immediately. Hatto’s husband has never fully admitted what he was up to. Channel 4 interviewed him recently and elicited Nixonian levels of denial and self-pity.

Hatto herself died before the scandal broke and her husband has never faced legal action, either criminal for his acts of fraud or civil to recover wrongly-paid royalties. I suspect the reason is that he is fairly elderly and, apparently, made very little money from the adventure. Thus the Attorney General would most probably exercise his discretion not to bring a criminal prosecution and the affected record companies and shops wouldn’t consider a civil action worth powder and shot. Both illustrate the flexibility of the law in practice I suppose.

And yet there’s one point that doesn’t quite make sense. Hatto’s rather gullible expert victims were interviewed by Channel 4 and asked what they intended to do with all the Hatto CDs they still owned. All said they would either bin them, or keep them in an old hat box and never play them again. Before they discovered the true performer, however, they had unanimously acclaimed the recordings as sublime. Presumably they still are musically. So why deny oneself the enjoyment they obviously produce? If it is because the putative listeners are irked by the conduct of those responsible, I suggest they don’t put on a Wagner CD instead.

Tuesday, 23 March 2010

Music and the law

Another internal company piece.

In its final batch of judgments before re-branding itself as the Supreme Court, the House of Lords allowed the appeal of Gary Fisher, the former lead singer of Procol Harum, who had claimed joint-authorship of the band’s best known song A Whiter Shade of Pale. Fisher claimed that it was he who was responsible for the organ heard in the song, which he said should render him a joint author. The trial judge agreed and although the Court of Appeal allowed the appeal of the defendant, that finding of fact was never challenged.

The decision was a pretty straightforward one on the facts. Mr Fisher had the idea for, and the execution of, the organ part, which is unquestionably an integral part of the famous version of the song, and therefore he was entitled to a share of the royalties.

It is, however, possible to think of rather more difficult examples. In considering the legal test for entitlement to royalties for records, we are of course dealing with the altogether more philosophical and esoteric question of what constitutes a song at all.

Ordinarily a song is considered to consist of lyrics and the melody, and whoever is responsible for those would be considered the composer or composers. Immediately one can single out A Whiter Shade of Pale as an exception, given that Mr Fisher had written neither. In some cases the riff would be seen as the signature of the tune, particularly in the genre of classic rock: Deep Purple’s Smoke on the Water, or Led Zeppelin’s Whole Lotta Love (familiar to anyone who remembers Top of the Pops at least), for example. In traditional Blues music many of the classic 12 bar arrangements tend to be generic and it would be impossible to agree on their origins (save for the certain point that even if the original composer or composers could be identified, they would have been dead for many decades and therefore their copyright would have expired years ago).

More difficult still is virtually the entire body of music that would fall under the rubric of jazz. In most live performances there is a significant degree of improvisation. For example, Duke Ellington, the received master of the art, revived his career in the late 1950s with a legendary performance at the Newport Jazz Festival. The climax of his set was a rendition of his Diminuendo and Crescendo in Blue. The most famous part (coincidentally my least favourite) is a saxophone solo by bandmember Paul Gonsalves which was virtually completely ad-libbed. Should he, rather than, or at the very least as well as, the Duke therefore be considered the composer of the piece? What of the fact that his intended solo was far shorter but the Duke waved him on throughout as he discerned the crowd’s reaction?

Nor is jazz improvisation confined to the music. Ella Fitzgerald forgot the words to Mac the Knife when performing in Berlin, yet she ad-libbed them anyway and the resultant performance is almost as well known as those by her contemporaries Louie Armstrong and Bobby Darin. Cab Calloway also forgot the words once when he was singing live and, lacking Ella’s ability to fashion an instant lyric, instead just improvised with harmonic sounds, in the process creating the new sub-genre of Scat by himself. (In the Blues Brothers film he appears singing Minnie the Moocher, a Scat classic.)

I suppose in each of the above examples the performer in question would have had a strong case for co-authorship with the original composer, though the CD details rarely acknowledge as such. Perhaps on the odd occasion at least this is down to modesty on the part of the improviser. Eric Clapton has played countless Robert Johnson songs, of which he never claims to be a composer or joint-composer. Yet in many of them, such as the live version of Crossroads when he was with Cream, the song really should be considered his and those parts borrowed from Johnson purely incidental. (That said, Johnson is often reputed to have sold his soul to the Devil in exchange for his musical gift, so perhaps Eric was erring on the side of caution by continuing to credit Johnson least he provoke an irate response from the true original composer.)

Once one reaches the 1980s and the era of sampling, then at once the issue becomes both more difficult and easier at the same time. If someone has lifted an entire part of an earlier recording then it is hard not to say that the original person should receive the credit: MC Hammer and Rick James, for one. Then again, one would have to judge how much the sampled part actually formed part of the later work. It is unlikely Richard Ashcroft’s view coincides with Mick Jagger’s - though in fairness to Mr Jagger the dispute over Bittersweet Symphony was nothing to do with him personally, it was the record company which brought the claim, yet the song is now credited to Jagger and Richards. Ashcroft later said that it was the best song that the Rolling Stones had written in 20 years (personally I disagree since the last worthwhile Stones album was probably Tattoo You in 1981).

I haven’t even mentioned the issue of producers either. George Martin wasn’t known as the Fifth Beatle for nothing; and a short comparison between Sgt Pepper and some of the early work will illustrate why. Phil Spector’s ‘wall of sound’ went substantially towards creating a style of music familiar for decades afterwards. Nile Rodgers remains in my view an unheralded genius, and Blondie would have been an awful though long forgotten punk band had it not been for Mike Chapman (try the original cut of Heart of Glass). Equally of course the likes of Pete Waterman and Simon Cowell have a lot to answer for in respect of what has clogged the commercial airways for years. For better or worse, however, the producers should if truth be told be credited as composers in many instances rather than as a separate entity.

Back to the legal definition of song composition. The short answer is that in almost all instances the matter is resolved by contract before the recording is even made. Hence, of the millions of pop songs, only very few have provoked litigation. Occasionally some horsetrading over contractual rights occurs. Or someone gets irked by the finer details: revealing a source of dissatisfaction of similar vintage to Mr Fisher’s, Paul McCartney recently reversed the famous “Lennon/McCartney” attribution on some re-releases.

In those rare cases which do find themselves before the courts, the usual reified legal terms of ‘fact and degree’ together with ‘expert evidence’ and ‘the facts of each case’ are deployed, leaving one to conclude that it is only slightly less arbitrary than a ruling by the Cadi under the Middle Eastern Palm Tree or the foot of the Chancellor of centuries past.

There is, however, usually some entertainment to be had by musical litigation. Somebody really did want to be held partly responsible for a Phil Collins live CD. Someone else really did claim to have been a member of the teen band Busted. The judge rejected this; he described the unfortunate claimant as something of a ‘fantasist’. (In itself this wouldn’t necessarily be a bad thing – as long as one lived in a happy fantasy world. It would presumably have been happier to have spent one’s days being, say, Mick Jagger, or Keith Richards, but then there’s no accounting for taste). The violin player who considered himself responsible for the intro to the Bluebells’ Young at Heart went to court to prove it. He took his violin with him, and played it too.

Not much humour was found in the Pink Floyd fallout in the 1980s, when former bassist, singer and songwriter Roger Waters tried to stop the remaining members of the group from using the name after he’d left. There was, however, a touch of irony: if the band was predominately identified with Waters by that stage then it had equally been Sid Barrett’s in 1970, and I doubt it had ever crossed Waters’ mind at the time that in fairness to Sid they should find a new name.

More recently of course an apparently united Pink Floyd won a case against EMI (which the spoof band Bad News once explained stands for "Every Mistake Imaginable") on the interpretation of their recording contract. Pink Floyd, rather precious about their concept albums, had a clause which prevented EMI from selling the tracks individually. This obviously posed a problem for EMI in the age of the download, so they argued that the terms did not extend to an MP3 format rather than a physical disc or record. One up for musical integrity as the court ruled in the Floyd's favour. Win some, lose some, as ever.

Friday, 19 March 2010

Press releases accompanying Supreme Court judgments

The following was excised from a longer piece being written for the UKSC blog, it rendered the piece too long and was on a slightly different point to the main issue being considered.

One innovation accompanying the introduction of the Supreme Court was press releases for each judgment. These I am told are authored by the judicial assistants. I am not convinced they are a welcome change.

The press releases read as a sort of hybrid between a headnote and a news summary. They lack the authority of the former or the general observation of the latter. They are expressly stated not to form part of the judgment. Of course they are of some assistance, but they do not seek to summarise the law in the way of a headnote. More importantly, they can do nothing to change any infelicities or inconsistencies between multiple judgments. They can merely draw attention to them. Judicial assistants are of great benefit to the judges (I should here declare that I was briefly in such a capacity in New Zealand, though discount my own contribution for the purposes of this discussion!). It is not thought necessary for the Court of Appeal, for example, to issue press releases.

I suggest that there is no need if one takes into account the primary target audience. Judgments of the Supreme Court will always appear in mainstream law reports (usually as a matter of priority), and it is these upon which lawyers will subsequently rely.

Of course the general public are also interested in the outcome of certain high profile cases, and the press releases may help journalists understand the judgments. They have never been thought necessary before. Admittedly fewer of the mainstream media have legally qualified staff anymore, and the papers are not always as rigorous as they might be in publishing corrections of erroneous reports of important cases. But is it the role of the court to do the hacks’ job for them? It might also be observed that the reasoning in favour of press releases for the Supreme Court applies equally to the lower courts (as I have argued before, most judge made law is made in the High Court and Court of Appeal) and no-one would suggest that there is anything like the resources to provide press releases for all of their judgments.

I would suggest, therefore, that the valuable time of the judicial assistants would be better spent if they were deployed solely to assist the preparation of judgments, including identifying any inconsistencies in draft judgments and drawing them to the judges’ attention.

Monday, 15 March 2010

The Supreme Court again

This blog has now been published here.

Courtesy of the UKSC Blog here is a link to an interview with the President of the Supreme Court, Lord Phillips. In it he is asked about the reasons for the court's formation. He admits that there was no prior consultation with the judges. Although the idea had been knocking around for a while, and in particular the now retired Law Lord, Lord Bingham, had been in favour, it was essentially sprung on the judges without notice as part of a package of significant constitutional reforms. Despite the far-reaching consequences of those reforms, they were announced with all the fanfare of a 2p rise in tax on alcohol or any other mundane policy decision.

One of the other measures was the abolition of the post of Lord Chancellor, a reform which in the event failed because no-one had taken the trouble to find out the full extent of what the Lord Chancellor actually did. The then-incumbent, Lord Irving, Tony Blair's fomer pupil master, was elbowed aside one way or another. Lord Falconer, Tony Blair's former flatmate, replaced him, though not at the same salary level. These days the post is held by Jack Straw, who still calls himself Mr Straw and sits in the House of Commons and obviously doesn't consider Lord Chancellor to be a full time job anymore.

Back to the Supreme Court. In the interview Phillips is pressed on the reasons for the Court's formation. He responds "I can't tell you why" but then offers "I can tell you the justification" and refers to the separation of powers. The interviewer asks perfectly reasonably whether the Appellate Committee of the House of Lords infringed that principle. Phillips says no, but that that might not have been obvious to a casual observer. The reason for the change, he then asserts, is to make the separation more transparent.

I would make three observations. First, that a body entirely the creation of an ordinary statute isn't necessarily independent, because there is always the suspicion that Parliament might pass another ordinary statute to alter or do away with it should it be displeased with the body's performance.

Secondly, if a lay observer had wondered whether the Appellate Committee was truly independent, he or she could have researched the situation and found the answer, as with any other legal issue. The creation of the court was a rather expensive way of pre-empting a question that wasn't evidently one troubling any sizeable section of the public or the media or anyone else.

Thirdly, despite the surprisingly cavalier nature, to say the least, of the reforms, Lord Phillips wasn’t sufficiently troubled to object, or if he was, to object with any conviction, unlike his former colleague Lord Neuberger.

Saturday, 13 March 2010

Kemi Adegoke

This young lass banged on my door today. She is the Conservative candidate for my electorate. She asked if I had any local concerns. I do, so I told her. She promised to email me about one; we will see. She then asked if I have any national concerns. I have many, and shared a few with her. She agreed enthusiastically but I suspect most will fall into the Yes Minister category of perennial insolubles as described below. Still, I will keep an eye on her website and may offer a few suggestions as the campaign proceeds.

The incumbent MP is Tessa Jowell (Lab). Not the most tricky act to follow, one would have thought, though I think Jowell has a large enough majority to scrape in again notwithstanding her well-publicised financial difficulties with the gentleman and scholar Silvio Berlusconi.

These Jowell blames in toto on her now estranged husband, David Mills, though it's hard to claim to be a worldly individual with a grasp of financial affairs, as one presumes any MP would be required to assert, and yet offer an Manuelesque denial of your own personal dealings, especially when your signature is on a mortgage. Jowell also has no chance of joining the chorus of Labour MPs who have comparatively recently trumpeted that they were totally against the Iraq War whilst remaining in the party all along; she was a member of the cabinet at the material time and voted for it.

There is also the mild irritation for me that Jowell is my local MP and lives in London, but does not live in her constituency. Before her apparent separation, and whilst the Italian allegations were front page news, her husband emerged from their North London abode to the expected crowd of hacks and press photographers. He stormed past in a rage, got into his BMW and tried to drive off in a fast and aggressive manner. In doing so he had a minor collision with one of the hacks' cars, and got out of the car after lurching to a halt.

"So who's going to pay for that, then?" he demanded.

"Berlusconi?" came the helpful suggestion from a watching hack.

Monday, 8 March 2010

Still Yes Minister

Surfing the net I discover a link to a classic Yes Minister scene. I have left the following comment:

One thing which causes no end of wonder to those who came to the programme decades after it was first run (myself, for example) is how it manages still to be so topical. In different episodes Hacker grapples with ID cards, Trident renewal, funding of the arts as against funding of sport, bribes to and from Arabian countries with whom Britain is trying to make a buck, bailing out of failed city institutions by the Bank of England, appointments to the EU, honours doled out in return for favours, wastage in the NHS, banning of smoking, and on it goes.

The answer given by the authors, Antony Jay and Jonathan Lynn, is that when writing the scripts the first thing they did was go back to the newspapers of the 1950s and look for things that were still current for them (the 1980s). And it was the same old things that nearly 30 years on are still current today – all the things I mentioned in the previous paragraph and many more besides. I have the feeling that for as long as there is a Britain Yes Minister will be topical.