Paying the Victim Bill

The new Victims and Witnesses (Scotland) Bill has been introduced at the Scottish Parliament¹, intended to give victims and witnesses more information on the progress of court cases, and compensate the victims of crime for their losses. All very laudable, but there are a few issues with the proposed legislation that should be addressed.

Starting at Section 1 a “victim or witness” is to given information about the progress and prosecution of a criminal case, also having their safety ensured and be given support. However one serious ommission here: a suspect does not have these rights, and therefore the situation could arise where a “victim” knows more about an intended prosecution than the person who is the target of that prosecution. It is not unknown for someone to deliberately make false accusations about someone to cause disruption to that persons life² and this would give such false accuser even greater power over the suspect who is the actual victim. Giving a suspect the same rights of information would cause no loss to a genuine victim, help innocent persons who are suspected of a crime they did not commit, and give no particular benefit to someone who is actually guilty.

This brings up a point about the political discussion surrounding this Bill (and various other proposed legal changes): the terminology about “criminals” and “victims”. Someone who has suffered from a crime against them may be called a “victim” (although in some cases support groups for those who have suffered violent crimes prefer the word “survivor” – I’ll stick with “victim” here as the terminology of the Bill). In many cases it is obvious that a person is a “victim of crime”, even though who perpetrated the crime is not known; is someone is physically assaulted in the street, it is not as sometimes reported an “alleged assault”, it is an assault where someone else may be the “alleged attacker”, or there may be an “unknown attacker”. In some cases it may be reported that a person is a “victim” when no crime has in fact been committed – though possibly a civil wrong has occurred allowing them to sue for compensation.

Where someone is suspected or accused of committing a crime though, they are not necessarily a “criminal”. If they are convicted of the crime they may be a criminal, but until then the presumption of innocence applies and they should be referred to as a suspect or accused. Too many politicians (and many media outlets) when talking about generalities instead of a specific case refer to the suspect or accused as “the criminal” and implies this therefore justifies removing their rights or legal protections. Now while we have very good police and prosecutors in Scotland, they are not infallible omniscent beings who proceed only against those who have committed the crime. Of those who are taken to a criminal court, about 88% either plead guilty or are found guilty of something by the court, and about half of those not found guilty being acquitted after trial. That means that 12% are not guilty and 6% have gone through the whole criminal court procedure to vindicate themselves – that’s a not insignificant minority who need protecting. Arguably anyone who is wrongly accused or tried for a crime is themself a “victim of crime” – not the victim of wrongdoing by the police or prosecutors but of the fact that crime exists and that the criminal actions of another person have led to them being prosecuted with all the disruption of their life that brings.

So back to the Bill: section 3 provides for disclosure of information to those listed in section 1, but the test for whether information is to be released is that the “qualifying person” e.g. police must disclose it except “in so far as the qualifying person considers that it would be inappropriate to disclose”. This is so vague as to make the “right” a matter entirely for the discretion of the person holding the information. At very least one would expect “reasonably considers that…” and quite possibly some provisions about whether disclosure “may prejudice the ongoing investigation or prosecution of the crime”. As it stands if the “qualifying person” is of the opinion that it is always inappropriate that victims should be told anything, they simply don’t release any information. If the intention is to give victims et al a right to information it should be legislation as an enforceable right not a vague pious aspiration.

Proceeding through the rest of the Bill, there any many changes which will affect the conduct of various criminal court cases, but apart from noting the usual variable quality of drafting I have little to say on these until we reach section 21 which deals with “Restitution Orders”. These are a form of compensation order that can be made in cases where someone is convicted of crime of violence against a member of the emergency services, not to compensate the individual who has been the target of the violence, but to pay into a government fund to pay bodies which provide support services to such victims. It’s a bit convoluted, but as a specific form of compensation order it’s fair enough. Presumably judges will decide whether a Compensation Order for the specific victim or a Restitution Order is most appropriate. Incidentally section 20 makes it compulsory for a judge to consider a Compensation Order in all circumstances where it would be legally competent, but good judges are already doing that anyway.

The big fly in the ointment with the Bill is section 22, the “Victim Surcharge”. This is a sum to be paid by anyone who is convicted of an offence (unless an offence excepted by order of the Scottish Ministers), which the judge must impose. The funds raised from this Conviction Tax are to be paid to a Fund intended to make payments to victims and victim support groups. The objections to this are twofold.

Firstly, there is no discretion on the judge in imposing this payment requirement, hence meaning it is not a sentence on conviction, it is a straightforward tax. Although it is stated it is for victims, the judge should already have looked at the option of a compensation order to compensate any victim of the crime; there is an exception to the Surcharge where the judge has ordered payment of a Restitution Order but not where a Compensation Order has been imposed. Ironically therefore where someone of limited means is convicted, the judge may require to reduce the Compensation Order to allow payment of the Surcharge.

Also the Surcharge applies even where there is no victim. Motoring organisations have already pointed out that this will mean those convicted of Road Traffic offences such as speeding will be charged the Surcharge even though there is no victim.

This arrangement appears to have been copied directly from the same provision which currently apply in England, where it was introduced in 2007 and has since come under various criticisms there³ as it “undermines the principles of Justice and should be withdrawn on the basis that it is unfair, inefficient, ineffective and illogical” as one critic put it. One practical question is whether the administration costs in obtaining payment justify the amount raised.

As a frequent cry of the Scottish Parliament is “Scottish solutions to Scottish problems” it is disappointing to see yet again the Scottish government importing English arrangements wholesale into Scotland, especially arrangements which are already unpopular and discredited in the country of origin.⁴

The second concern is regarding the Fund itself. Payments out of the Fund will be discretionary, no one will be entitled to this as of right. Victims of violent crime can currently sue their attacker⁵ or apply to the Criminal Injuries Compensation Authority (CICA) where they can get a fixed payment of compensation for their injuries as of right. However CICA compensation payments have been reduced over time, and various types of claim being excluded altogether. The fear is that over the long term CICA would disappear and the Victim Surcharge Fund promoted as being its replacement – replacing a right with charity.

However assuming that the Victim Surcharge Fund itself will be additional too rather than a substitute for existing funds, a better way could be found to finance it. A simple solution would be to earmark a fixed percentage of all fines charged in Scotland. This removes most administration costs – a monthly remittance of this percentage of fine payments received could be paid over. To make up the loss of revenue, simply increase the standard scale of fines – these are periodically reviewed for inflation anyway. If necessary throw in some payments from funds recovered under the Proceeds of Crime provisions, and you are sorted.

So with the exception of section 22, all in all a generally beneficial act, all be it one that could be improved.

1 http://www.scottish.parliament.uk/S4_Bills/Victims%20and%20Witnesses%20%28Scotland%29%20Bill/b23s4-introd.pdf
2 An extreme example of this was case of Maria Marchese. However it is not unknown in cases of spousal abuse, and other circumstances.
3 Kudos here to District Judge Tim Devas.
4 Home Information Packs anyone? Copied from England to Scotland over the objections of lawyers, surveyors and general public alike, then promptly abolished in England as being useless or even counterproductive but retained in Scotland for no discernable reason beyond possibly a disinclination to admit having made a mistake. Perhaps they could be withdrawn on basis “they have now successfully served their purpose and are now stifling economic recovery”?
5 But most criminals have no money; most rich criminals appear to be running banks or countries.

Torrents of Abuse

In recent news reports an Austrian man William Weber was charged in connection with distributing child pornography because illegal images were detected being transferred by his computer. Just another pervert getting caught? No, because this Server computer was in fact a “Tor Exit Node”, so the data going through it was nothing to do with him.

Tor is a system to give people privacy on the internet. To understand how it works, one first needs to understand a little about how the internet works. Before the internet, if you wanted your computer to communicate with another computer you set up a direct connection between the two machines. The internet however avoids the need for a direct connection: each computer attached to the internet has an “IP Address”; your computer sends packets of data with a header containing the address of the computer it wants a reply from to another computer, usually belonging to your Internet Service Provider (ISP), which in turn passes it onwards to another computer until it reaches the addressee which replies with packets labelled with your computers address. Now while these data packets all passes through computers in between, they do not (necessarily) have access to the contents of the packetes ¹. Also the way the internet works, each packet need not travel along the same route, so the intermediate computers may not see the whole sequence of packets making up the message.

However, the intermediate computers can see the address of the computer you are trying to reach; they need to in order to pass them in the right direction. As IP addresses are assigned in blocks to national authorities to distribute within their territory, it is possible for the intermediate computers to refuse to pass on data packets to certain IP addresses (e.g. for a particular website) or IP addresses in certain ranges i.e. in certain countries. This is a technique used in various countries by governments to prevent their citizens contacting the outside world or viewing banned websites. It is also possible to allow the data through but carry out “traffic analysis”, essentially to record the addresses on the data packets leaving your computer to see for example what websites you have viewed or who you have emailed.

The purpose of the Tor project is to give computer users privacy. You connect from your computer to a “Tor entry node” which is a computer set up to allow access to the Tor network. This computer then passes on whatever data you send through a variety of “Tor relays” just like the intermediate computers in a standard internet connection. However, these relays are set up so that the owners of the computers have no way of telling what data is passing through their connections, they just take an anonymous packet of data and pass it onwards. Eventually the data arrives at a “Tor exit node” which then connects to the regular internet to pass the now anonymised packets out and receive the reponses for transmission back the way.

The problem of course is that privacy can be used for good or ill. One can use it to try to avoid sanction from an oppressive government, or to try to avoid punishment for a criminal offence².

The creators of Tor have designed certain features to prevent certain types of abuse of anonymity. For example, the network cannot be used for Distributed Denial of Service (DDOS) attacks, or for sending spam emails.³. Undoubtedly though, for those who want to carry out illegal activities it provides the exact same privacy as to those wanting it for legal activities. Indeed it is essential for those wanting to use it for illegal acts that the majority of the traffic is for fully legal (or at least morally acceptable) acts; otherwise it would be a simple matter to detect criminals because they would make up the bulk of the traffic. A more detailed consideration of the place of privacy in internet usage would take at least another blog post, if not a Ph.D. thesis.⁴

While the case in Austria is “live”, we obviously have to be careful on what comments we make on the specific case, but we can consider the legal position of someone running a Tor Exit Relay generally. The problem the gentleman appears to have run into is that the authorities have, at least in the first instance, decided that he is responsible for the data passing through his Exit Relay despite having no knowledge or control over this data. Providing a Tor service is analogous to the services provided by commercial ISPs. ISPs are protected from prosecutions for illegal data passing through their systems under EU Directive 2000/31/EC implemented in the UK by the Electronic Commerce (EC Directive) Regulations 2002. If they are a “conduit” of data, transmitting data for a third party and not storing it (except for the period necessary for the transmission), they are not liable for any civil or criminal liability for that data.⁵ Therefore if an ISP is accused of a criminal offence, e.g. transmission of illegal pornography, it can merely lodge a defence in terms of these regulations and the onus is then on the prosecution to show that it was the ISP rather than one of its users that was choose to transmit that data.

The question therefore arises whether these provisions can apply to someone operating a Tor Exit node. The regulations refer to a “service provider”, which is defined in terms of someone providing an “information society service”; this in turn is defined as “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services”⁶. It is worth noting that academic institutions have been held to be protected by the regulations for their provision of internet access, data transmission, etc. For historic reasons Academic institutions do in fact provide a lot of the transmission and services backbone of the internet, without making any charge for this; however as the services they provide can be purchased elsewhere it is easy to argue that the services they provide are of a sort “normally provided for remuneration” and therefore protected.

Someone who provides a Tor service does so for no remuneration.⁷ So can they claim under this defence? One question is how relevant it is that the particular service is via the Tor network rather than the open internet. One analysis is that there is no functional difference between providing a Tor node and providing a Server which transfers data under any of the other numerous protocols which we collectively refer to as “the internet”. For example Usenet is a method of transmitting public messages (predating the World Wide Web) which relies on people providing Servers running the Network News Transport Protocol (NNTP) service; how does this differ from running a Tor service? Once set up, an NNTP server links to other NNTP servers and automatically exchanges data without the owners involvement; this data is put into the system by third parties and received by third parties. The only significant difference is that owners of NNTP servers can monitor the traffic between servers whereas owners of Tor servers cannot. Therefore while those providing the Tor service do not do so for remuneration, it is definitely arguable that they are providing the type of service normally provided for remuneration by commercial ISPs.

If this argument is not accepted by a court, the only obvious distinction would be on the protocol used for the “information society service”. This would have profound (and unpredictable) ramifications for the legal landscape at least in Europe. Over time fewer and fewer commercial ISPs have continued to supply NNTP services on their servers; following a protocol based ruling, should a time come when no commercial ISP supports this service, any Academic institution or non-commercial body continuing to support this service would suddenly lose the immunity of the Directive and be open to liability for what third parties post onto the Usenet system.

Interestingly the US equivalent provision, Section 230 of the Communications Decency Act, does not appear to make any reference to any commercial element in the provision of service, but also appears to give a less absolute protection to the service provider.⁸ In our hypothetical Usenet scenario US users could post messages for which US server owners would have no legal liability, but for which EU server owners could be held criminal responsible; the only safe option for EU residents would be to cease operating such a service. This would in essence mean that what internet services are available to individuals in the EU would rely on what is commercially supplied, cutting out the Academic and other non-profit bodies which have historically had a significant contribution to the development and expansion of the internet.⁹

It will therefore be interesting to see how the Austrian authorities proceed with this case…

1. Most packets are more like postcards than parcels, the intermediate computers can read them, but each only contains a few sentences of the full message. However, using encryption those few sentences are simply an unintelligible jumble
2. Of course if one is in an oppressive state these may be one and the same
3. It is a block on SMTP Port 25 used for sending mail, but you could still collect mail using e.g. the POP protocol.
4. If you believe “if you are doing nothing wrong, you have nothing to hide”, may I ask do you favour a couple wishing consensual sexual intercourse to do so in a busy city throughfare at midday, or should they get a room to themselves?
5. UK regulation implementing Art 12 of Directive
6. As an EU directive it is worth cross referencing with another language version: in French it is “c’est-à-dire tout service presté normalement contre rémunération, à distance par voie électronique et à la demande individuelle d’un destinataire de services”
7. If you wonder why someone might voluntarily donate part of their internet connection and computer equipment to such a service, please check the definitions of “altruism” and “civic responsibility”
8. Anyone qualified in US law who would be interested in collaborating in a more detailed Comparative Law examination of the US/EU laws, please get in touch.
9. Contrast this with the rise of the Open Source movement…

Actus interveniens…

Apologies for the delay in posting on this blog. Just after the last post, I discovered that someone who is taking rather a lot of money to do a particular job was in fact failing to do the work required for that job; nor would they provide any information about what they had or had not done. Therefore I’ve had to devote my time to doing their job for them, and while it is still not finished, I’m at least in a position where I can look at other things as well (third party incompetency permitting). Therefore usual service will resume shortly…

Reach out and Touchscreen

Touchscreen are now becoming ubiquitous on smart phones and other gadgets, and new computer Operating Systems are now start to include touchscreen options as standard. So how useful are they for your office computer systems?

Using a touch screen as a “user interface” has a lot going for it. It is intuitive, you literally point at what you see, and it can be more ergonomic than various other methods. The previous downsides of high price and low responsiveness have been largely removed by cheaper high quality touchscreens: decent 15 & 17 inch screens can be bought for around £150 and slightly more for 19 inch.

So how well does it actually work in a real office. We first ran a trial in an office on the reception computer. The reasons for this location were: (a) More members of staff used the machine in question than other workstations, meaning more people testing it; (b) this location made more use of mouse and less use of the keyboard that secretarial workstations; (c) it allowed a test of how well this helped interaction with the public while using the machine (as no need to look down to mouse/keyboard on lower desk).

We used the existing computer, deliberately not high spec, running MS Windows XP and equipped with wireless keyboard and mouse; we simply replaced the existing main monitor with a touchscreen monitor, and installed the supplied drivers. The first discovery was that the touch function did not play well with additional non-touch screens, giving an offset between the actual point where touched and where this registered on the screen desktop. This was not a major issue, simply a matter of disconnecting a secondary monitor and likely adjusting hardware (making all screens touchscreens) or software (new drivers or a more modern Operating System) would fix this.¹

Once the system was set up, all the users were familiarised with the setup, and left to start using it, giving feedback about how they found it.

The first point was that the standard configuration of Windows was found too small for using fingers. In particular scroll bars and the “close” button in the corner of windows required pinkie fingers rather than index fingers for accurate use. However, the instinctive move for users was to use their index finger, so settings were adjusted to make buttons and scroll bars fatter.

The second point was that users preferred to use fingers over a pen on the touchscreen.² This would support the ergonomic and intuitiveness aspects. However, the majority of staff in fact preferred most of all to continue using the mouse.

This was particularly interesting, as the whole point of touchscreens is to be easier and better than using a mouse. It seems that the staff were so habituated by years of mouse use to automatically reach for the mouse for tasks rather than the screen! This was confirmed when someone attending for work experience took to the touchscreen immediately and had no problems at all with it; since everything was new there was no habit of mouse using to break.

As rate of use of mouse versus use of touchscreen rose, to continue the trial we took the step of actually removing the mouse for a couple of weeks (which was grudgingly accepted with grumbles). At the end of this time we took a poll of who wanted to retain the touchscreen and who wanted to revert to mouse, and only one staff member preferred the touchscreen. This was despite timings indicating that in the actual work environment most tasks were completed in either the same time, or quicker using the touchscreen.

As the screen was on the counter, using the touchscreen did allow interaction with clients to be less interrupted by looking away to the lower desk where mouse and keyboard were situated.  Incidentally those clients with a particular interest in technology did consider the use of touchscreen as “cool”, whereas the bulk of clients simply considered that’s what computers do these days.

The next test was using the same touchscreen at a secretarial workstation, being used by a single member of staff. The difference here was noticeable, in that use of the touchscreen actually increased times compared with using a mouse. The reason was quickly established: a secretary touch-typing has visual focus on the screen, but mental focus on the keyboard; first option to control functions would be keyboard shortcuts, secondly shifting the right hand along a lateral plane a few inches past the keyboard to the mouse sitting there, then back to the keyboard. Use of the touchscreen required lifting the hand upward and forward from the keyboard to the screen and considerable more shift of hand/finger position. This involved more physical work, and some additional arm tiredness was reported by the end of the  day.

The third test was with a fee-earner. Here the touchscreen was quickly adopted as the preferred interface. One point noted was that the fee-earner and the one member of staff who preferred the touchscreen in reception were both using laptops with touchpads as their main computer; presumably the use of a touchpad more easily translates to touchscreen. Also the fee-earner had a bigger sphere of body movement than the secretary; the fee-earner would look and reach from from keyboard to screen, to files or papers and telephone, as opposed to the secretary working primarily in a horizontal plane over the desk.³

So in all this was an extremely useful exercise, with some interesting implications with new hardware and Operating Systems coming out. Just because new systems have the option of touchscreen, or even encourage them, that doesn’t mean you can bin the mouse yet.

For reception changing systems will require staff to change existing habits, but doing so can make them slightly more efficient.  An intermediate step might be to switch them to touchpads.

For secretarial staff, a standard touchscreen is in the wrong geometrical plane. A nearly horizontal screen might be useful, providing issues of light reflection could be dealt with, but the standard vertically aligned screen interrupts the workflow.  Another option might be a horizonal secondary touchscreen beside the keyboard purely as an interactive controller.

For Fee-earners, a switch to touchscreen may pose no problems mainly due to their job being less focussed around the computer. If however you do your own typing in place of having a secretary, you may want to “try before you buy” to see how it works for you.

Specialist programs optimised to touchscreen use may be helpful, but are not essential as existing standard programs can do just fine subject possibly to a little tweaking.

So there may be benefits to buying touch screens in place of ordinary monitors in the course of your usual replacement of equipment, but there is no need yet to go out and buy them all for the sake of it – just remember that if some salesman trying to get you onto the latest and greatest Operating System wants you to spend a fortune on new equipment to run it. Who knows, you might want to wait until touch tables become a reasonable price.

1. As an aside, we also installed the same screen on Linux machines, and have no particular problems there either.
2. Don’t forget lots of antibacterial screen wipes.
3. This of course gives alerts to prospects of RSI, and emphasises the need for secretarial staff during their breaks to get up and do things outwith the planar movement. It also explains why swivelling secretarial chairs make the job more comfortable.

Age of Irresponsibility

Much has been made in recent years of the problems of the “Compensation Culture” and many politicians have expended great gusts of hot air about how they propose to end it. However, in reality this is merely a symptom of a far wider problem.

Historically in the UK, when a government department got something seriously wrong the Minister for that department would give an “honourable resignation”, leaving his position on the basis (as a US President¹ famously said) “the buck stops here”. Now we have government Ministers who when something goes wrong send a junior member of staff to face the wrath of the press and carry on regardless. But it is not just politicians, this type of behaviour is endemic across society.  Bankers mess up in catastrophic ways, even breaking the law, and walk away with large bonuses in their pockets. Security contractors accept lucrative jobs, then ask the government to bail them out when they can not do what is needed.

But these are the well publicised cases where everyone is quick to blame the culprits for their faults. More insidious are the day to day examples. Public bodies and Local Authorities who do all their work strictly “by the book” concentrating on complying with their procedure rather than giving a good service to the public. Bus Drivers who leave a stop exactly on the dot regardless of the person patently running to catch the bus. Companies who respond to complaints with “we have complied with all relevant legal provisions”.²

These are all down to “blame” and “liability”. What we are lacking is “responsibility”. As a good lawyer should, I will define these terms.

“Blame” is where someone is held at fault for what they have done.

“Liability” is where the law states there are legal consequences to a specified person for their acts.

“Responsibility” is about taking decisions or actions and being accountable for those.

Blame and liability are passive. Someone is given blame; the law imposes liability. Responsibility is active. You take responsibility for things.

We are living in a Blame Culture. Much of society is concentrating on avoiding blame and liability. As a result, there is an avoidance of responsibility – we live in an age of irresponsibility. Like little children, squabbling, “it wasnae me, a big boy did it and ran away”.

It has even reached into the legal profession. A firm who sacked a trainee for sending funds to the wrong individual; a senior partner of a large prestigious firm who in correspondence stated the law to be precisely the reverse of what it is, then blamed it on the secretary.

But legal liability for the acts of staff or trainees rests with the partners of the firm, who have a duty to supervise. More importantly the partners should take professional responsibility for everything coming out of their legal firm regardless of any legal liability. In the same way every lawyer (partner or not) should take professional responsibility for whatever services they are providing to clients, their actings with other lawyers, and their services & duties to court & society in general. This is a tradition that can be traced back to the mediaeval period and further yet to the jurisconsults of the Roman Empire, literally thousands of years of history. Surely this is a tradition worth preserving? If anyone should be taking reponsibility for things, it should be the lawyers.

Taking responsibility need not mean taking on legal liability. It is a practical expression of a moral value. It is a form of leadership. It is saying “this is my will, my decision and I take the consequences for good or for ill”. It can also be good economic sense: if you tell your clients “I am responsible; if anything goes wrong in our service, I will fix it” you are nailing your colours of customer service to the mast. So long as you follow through your reputation, and customer loyalty, will just keep growing even when something goes wrong. Specifying your responsibility can even restrict your legal liability, by distinguishing between what you are and are not responsible for.

Taking responsibility is not about letting other people off the hook. In the case of the old fashioned government minister or business director resigning because of a mistake by their underlings, it gave them an opportunity to clear out the problems, reprimand or remove staff who were not up to the job, without worrying about any ill-will or ambivalent feelings accruing to them in the department, allowing their replacement to be a “new broom” with the worst of the mess tidied away already.  Likewise in a business, if you are responsible, you may still hold your staff liable for any wrongdoings, but not put blame on them. There is a difference between someone being wrong which calls for education or training, and doing wrong which calls for the relevant legal (or contractual) consequence. But if the right thing to do is unpleasant, taking responsibility means you will do that however much you would prefer not to.

But responsibility is not just about business; it is about life. Not happy with what the politicians or bankers are up to? Take responsibility for it! Believe your representative body isn’t doing its job? Take responsibility! Think the pavement outside your front door isn’t cleaned enough? Take responsibility! Complaining “why doesn’t someone do something about…”, or “why don’t they…” is trying to put blame on someone. Taking responsibility is about asserting control over your own life, exercising your liberties, and affecting the world around you where it affects you (directly or indirectly). How you choose to do it is up to you.

By refusing to take responsibility you are surrendering your own moral compass and personal independence. Your actions are dictated by whoever is assigning blame, and you fall into the moral bankruptcy of “I was only following orders”.

Remember the slogan “Think Globally, Act Locally”. You have your own sphere of influence: direct action, things you can directly do yourself; indirect action, things you can get other people to do;  and communications, things you only pass on information or lobby about. If you are not happy about something, decide how important it is to you, then exercise your power according to how important it is to you.

You can go out every week and sweep that pavement outside your front door, or you can send a letter to the Council. You can take you money out of the irresponsible bank and put it somewhere else. You can complain to your representative, or stand for their position yourself. If a business rule doesn’t help your customers, take it up with the management.

In some cases each act you take may only make a tiny tiny impact on the thing you want to change, but given long enough raindrops can erode rock; if enough people agree with you, even without co-operating the cumulative effect will build up. Perhaps though what you do may be enough to single handedly change things; history is full of people who decided to take responsibilty for something that they had no legal liability for, and in doing so made part of the world a better place.

So reject the blame culture, lead by example: take responsibility for what is important to you, and encourage or demand that others take responsibility too. If you aren’t going to, who will?

1. Harry S Truman, who apparently was given it by Fred M. Canfil, United States Marshal for the Western District of Missouri.
2.A perfect example of the phrase “law is the last refuge of the scoundrel”.

The Great Dictator

In an earlier blog, I made a remark about some firms still using cassettes for dictation, which attracted a couple of comments. Therefore I thought I’d go over the moderns options, pros and cons.

The first decision is to dictate or not to dictate in the first place. The advantage of not dictating is a possible reduction of costs in equipment and staffing, but this is set against having to deal with the production of text yourself. This ranges from typing everything yourself (where output depends on your typing speed), to document creation systems which let you simply pick from banks of styles (which reduce ability to make bespoke documents) This is not an either/or proposition, but a continuum, and the more work a document creation system does for you in general the dearer it costs, possibly outweighing the savings of have less staff.¹

Even if you are using such a system, you may still want to use staff to type, or to carry out the routine work. For example if you have a paralegal, you may simply sent email messages saying “deal with this file”, but alternatively you might want to dictate a somewhat more lengthy description of what you want them to do.

If you are dictating, then there is absolutely no benefit to using analogue cassette dictation machines. Digital dictation machines (a) are similar price; (b) are operated in a similar way; (c) do not need cassettes. They also have several distinct advantages.

Firstly, you can separate your dictation into separate files. On a cassette dictation system you can put a “beep” separator between files, but the whole stream of dictation is one string that you have to run backwards and forwards. If you dictate work on a file, then another file, then remember something in the first file, on a cassette you need to dictate the amendment after the second file. Sometimes that means a typist will finish the first bit of dictation, print it off, and not know about the amendment; result either wasted paper, or an incorrect document sent through as “completed” work (where hopefully you cathc the error). With digital dictation, you just go back to the first file and insert the amendment.

Secondly, as these are electronic files, instead of physically delivering a cassette to the typist, you can email it or download it to a central computer location. A typical setup will have a computer folder for each typist on a network computer; one puts the electronic file in there, and it pops up on the typists workflow automatically. If you do want to physically hand over something, you can alway get a digital dictation machine that uses memory cards – note that these can often hold hours of dictation equivalent to dozens of cassettes.

Alternatively, if you’re out of the office just email your dictation and it can all be typed by the time you return. You can make arrangements for typists to work from home (either regularly or just for those snowy winter days when someone can’t get in), or you can use a typing service that you email dictation to and they email back the typed document.

Further as these are separate files, you can easily put them in order of priority so that your typist knows immediately what order to work on them or direct different files to different typists. Plus the typist can immediately see how long the dictation is when it arrives rather than when the work is finished. All of these allow a more efficient workflow.

Instead of a dedicated dictation machine, many modern mobile phones can be set up for this purpose. You may need to check what file format it uses, so that your typist can actually play it back on a computer, and you may want a specialised app on your phone to give you extra functionality to make dictation easier.

For playing back dictation, the bare essentials for your typist are simply the computer itself, but the basic playback software that comes with most computer systems is not really ideal. There are a number of programs specifically to deal with dictation, you may even get one with your digital dictation equipment; otherwise take a look at http://www.nch.com.au/scribe/index.html for ExpressScribe² Add headphones and a USB footpedal and your secretary should have no problem at all with the transition.

Of course with a digital dictation machine you never get a scrunched up tape losing all the dictation; on the other hand you can, very rarely, get the digital recording corrupted. On balance with decent equipment this happens less often that a cassette wearing out, snapping or suffering any other type of mechanical failure.

If this isn’t technologically advanced enough for you, you can look into voice recognition systems, where you speak and the computer types. While systems have improved over the last decade, in my humble opinion they are still not at the stage needed for regular use in a legal office. Most of these systems have a “training mode” where you speak and the software “learns” what word you said, and this does help the previous problem of inability to understand non US accents. However they still have problems with technical (e.g. legal) language, and each user needs to invest quite a period of time teaching the software to understand them. There are a number of products to try, and as a general rule of thumb the quality of speech recognition and reduction of training time required correlates to the price i.e. better product, more money.

Here a word of warning about Siri, the voice recognition facility provided by Apple. This works by routing data through their own data processing facility, which is of course a great way of allowing a comparatively low powered device make use of a very powerful system. However, this means whatever you say to the device is routed out of the EU with implications for data protection and client confidentiality; reading through the software licence it is NOT a good idea to use this for client data at present.

This brings us to data protection generally. The flexibility that digital dictation brings also means you need to be aware of data protection issues. If you take your dictation machine about with you, the same care is required whether it is a cassette or digital. If you are emailing a dictation file (outside your own office systems) it would be advisible to password protect it; the simplest method of doing this would be a put all the dictation files into a password protected Zip file (which also reduces the size of the attachment) before sending. Any staff working outside the office should be made aware that they should delete the file after completing the work, and if you are using outside typing services check their terms of business carefully to ensure that all issues of client confidentiality and privilege are covered. It is also advisible to use an EU based service, otherwise you should advise clients that their data may be sent outwith the EU, even if the service does agree to EU data protection rules.

So go forth, spread the word!

1.The bonus of staff of course is they can do things no computer can do. Forget about answering the phones, when was the last time your laptop made you a cup of tea/coffee

2. I have no personal or financial interest in this product, it is simply the one that my own staff liked best when trying various options.

Abusing Corroboration

The Solicitor General of Scotland has recently put back on the table the idea of the abolition of corroboration in Scots Criminal law. The reason given to the Press is that this might lead to more convictions in domestic abuse cases.

I have dealt with victims of domestic abuse as a practising lawyer for more than a decade. I am delighted that the government would like to do more to stop abuse. As well as encouraging the continued good work of Women’s Aid, much more needs to be done about the almost invisible cases of abuse against males. Abuse against males is often treated as a joke, and it is only recently that any form of support organisation has been set up¹. Victims are often reluctant even to disclose the facts to their solicitor in confidentiality; many will accept the stigma of being claimed to be the abuser in the relationship as a price of ending the abuse against them rather than admit the truth.

Also in rural Scotland, victims of abuse in same sex relationships are very reluctant to report for fear of publicising their sexuality; despite all the legal equalities they still seem to feel they will be subject to some social stigma.

My experience is that very few females, and even fewer males, want a prosecution against their abuser, they just want the abuse to stop. Generally, this is done through the civil courts using an interdict. If the goverment is serious about assisting abuse victims, I would strongly commend the reversal of the decision stopping automatic “emergency legal aid” in such cases thereby allowing an order to be obtained immediately when required, instead of waiting days or even weeks for a decision.

Perhaps it is in the public interest that prosecutions should be carried out against the will of the victim – for that very reason in Scotland we have independent prosecutions carried out by the Crown Office and Procurator Fiscals. However from a practical point of view, with a victim who still has feelings of affection or love towards their abuser, who will refuse to give evidence against him or her, who will minimise their faults or even lie to protect them, it will be extremely difficult to succeed in a “hidden” assault within the home with or without corroboration.

But let us consider exactly what corroboration is and why we have it. Corroboration is the rule that no conviction can be obtained on a single piece of evidence, there must be another piece of evidence that supports the first. Where a crime consists of various steps or elements, each element must usually be evidenced from two sources.

So for example, Police officers in Scotland usually patrol in pairs, so that two people can speak to having seen an event. Alternatively a single person’s testimony can be backed up with CCTV footage which corroborates what they say.² Likewise, what one person says can be backed up by physical or forensic evidence, or indeed if there were no witnesses a case can be established purely from other evidence.

This brings us to the other rule in corroboration, known as the Moorov doctrine. The essence is that corroboration can take place across multiple similar events, proving what might be called a “course of (criminal) conduct”. The original case involved sexual assault against a number of victims, but subsequent cases have involved e.g. a serious of razor attacks against different people.³ Technically each individual act is not wholly corroborated but “the whole thing” is. Now this is an area which could benefit from some legislation to tighten the rules up and make them more certain. If the Scottish government would like to propose this type of improvement to the rule of corroboration, I am sure many lawyers would be delighted to make suggestions how this might be achieved.

However, why do we have corroboration? Arguably it grew out of the Enlightenment era, and the idea of scientific proof. In science a mere assertion that something is true, no matter how eminent the authority making that assertion, is not acceptable as proof. In most cases science requires any claim needs to be repeatable and verifiable; if you describe that a certain sequence of events has a certain outcome, others have to get the same results copying those events. Now how does this match with criminal offences, which one cannot repeat? Well certain fields of science have the same problem: if you are an astronomer reporting on seeing a particular event, it is possible that someone else sees it , or no-one else does. If two people independently observe the same thing (or if there is photographic evidence to back up the “eye-witness”), this will be accepted into the record ; if no-one else does, subsequent observations will be carried out to “back-track” the later observations to confirm that there is evidence supporting the original observation.

So in the same way the “science” of Scots criminal law demands that claims be verified by multiple pieces of evidence, to demonstrate the case “beyond reasonable doubt”. It is worthwhile remembering that in a Scottish criminal case, we do not open in court with a statement by the prosecution about what they think happened, they open straight away with the evidence. The idea is that the facts, as proven by the evidence, spell out the story themselves. The role of prosecutor in Scotland is a very skillful one, in which like many other arts the greatest skill of the artist is to hide the skill involved. The voice of the prosecutor, like that of the scientist, is almost unnoticable compared to the corroborated facts which spell out their own conclusion to the exclusion of any other reasonable interpretation.

Now, the principle of corroboration is attacked on various grounds. One is that it is “old fashioned”. Many things are old, or even ancient; this does not mean they need to be replaced, they may be kept so long because they are so valuable or useful.

A second is that Civil cases no longer require corroboration. There are however significant differences between civil and criminal cases. In a civil case the test of evidence is “on the balance of probability” compared with the criminal “beyond reasonable doubt”. That is in the civil case the judge (and jury) are deciding on the two stories presented by both sides of the case. There is not need to look at any other option. In a criminal case, they are looking at the case put by the prosecution against any other conceiveable alternative (the “reasonable doubt”), and there is a presumption of innocence for the accused.  It is therefore right that the criminal court should look for the same standard of evidence that the scientific community looks for “proving” a fact rather than when picking between only two alternatives.

Another objection is that “it prevents getting convictions”. Well forgive me if I an wrong, but I thought the purpose of the court case was not to convict the accused but to convict the guilty accused. If the whole point is merely numbers of convictions, why bother with trials at all?

Further the requirement for corroboration avoids both injustices and unnecessary trials. I have been involved in two cases of false allegation of rape at different times. In both cases the Police took the reports, and as they should, accepted the allegations on the initial evidence.  However, because of the requirement for corroboration, they carried on investigating to gather the additional evidence to secure a conviction. As they did so, they found discrepancies, and pieces of evidence just didn’t add up, then evidence contradicted the original claim, until they came to realise that the allegations were unfounded, and the charges dropped with the men exonerated⁴. Neither now have any great animosity against the Police, because at the end of the day the Police did their job and proved them not guilty.

But if there was no requirement of corroboration, these stories would have ended very differently. Would the Police continue to invest valuable, and ever more rationed, resources in investigating more once they had enough evidence to take the case to trial? Unlikely. So the cases would have gone to trial. At best the defence would be able to gather the contrary evidence and thousands of pounds per day of public funds would be wasted in a High Court trial. At worst, the defence not having the unique facilities available to the Police to gather and process evidence, these men could have been wrongfully convicted. But as it was, public money was saved and those involved have been left satisfied that, despite great personal inconveniences they suffered, the system works and justice is done.

Now in our neighbouring jurisdiction of England, there have been several high profile cases of miscarriage of justice based on confessions of accused, which Scots have happily pointed at and said “that could never happen here since we have corroboration”. Now the English will respond that they have made legal changes to reduce the possibility of a repeat of those circumstances, and that the fault lies largely on the part of corrupt (or “over-zealous”) individuals dealing with the cases. Fair enough, but it is a simple fact that corroboration would have stopped those cases happening. I have no doubt that corrupt or over-zealous people in Scotland can, even do, cause miscarriages of justice missed under some gap or other in our legal rules but I would prefer to root out and block those gaps rather than open a whole floodgate of potential abuse.

Is the current Scottish Criminal System perfect? Of course not. Will the abolition of corroboration make it better. Absolutely not. It will squander resources which could otherwise be better targeted while at the same time causing miscarriages of justice that would otherwise have been avoided. Yes.

There is certainly a case to be made for looking at the precise operation of the rules of corroboration; if there is to be a proper consultation on the subject there are various technical adjustments which could well help the smooth administration of justice. However the basic principle of corroboration is sound, is a major cornerstone of the Scottish system, and must stay in the interests of Justice.

1. See http://www.mensadviceline.org.uk

2. Which of course means that it would legally be feasible to replace pairs of Police Officers with single Officers with personal mounted video cameras. Of course a camera isn’t so handy assisting with lifting some ned intent on smashing your face in.

3. HMA v McQuade. I’m old enough to also consider the Howden principle to be merely an extension of Moorov.

4. One case the accuser was found to have mental health issues, the other had fabricated the story for revenge and was subsequently convicted of attempting to pervert the course of justice.